Mr. T v. Silver Bullet Solutions, 2025 BCHRT 141
Date Issued: June 13, 2025
File: CS-002006
Indexed as: Mr. T v. Silver Bullet Solutions, 2025 BCHRT 141
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:
Mr. T
COMPLAINANT
AND:
Silver Bullet Solutions Inc. (dba MotiveWave Software)
RESPONDENT
REASONS FOR DECISION
Tribunal Member: Devyn Cousineau
Counsel for the Complainant: Kendra Murray
Counsel for the Respondent: Kimberly Darling
Date of Hearing: April 23-25, 2025
Location of Hearing: Via videoconference
I INTRODUCTION
[1] Mr. T worked for Silver Bullet Solutions Inc. dba MotiveWave Software [MotiveWave] for seven days. His employment was terminated immediately after his employers learned he had two prior criminal convictions that he had not disclosed during the hiring process. In this human rights complaint, he argues that this is discrimination based on criminal conviction unrelated to his employment, in violation of s. 13 of the Human Rights Code. He asks for remedies to address the discrimination.
[2] Tony Lindsay is the owner and co-founder of MotiveWave. Leigh Carter is the other co-founder, and its Director of Sales and Marketing. They are married and run the company out of their house. Mr. Lindsay and Ms. Carter say that they had already decided to terminate Mr. T’s employment for poor performance when they learned about his criminal convictions. MotiveWave argues, first, that the convictions were not a factor in the termination. Second, and in any event, it argues that that the convictions for robbery and obstruction of justice are related to the employment and so do not engage the protection of the Code. It asks for the complaint to be dismissed.
[3] I heard this complaint over three days. I am grateful to the parties, their counsel, and the witnesses for their work. It is apparent to me that this was a difficult situation for everyone involved. Everyone was trying to do their best for themselves and their families.
[4] For the following reasons, I have found that Mr. T’s criminal convictions were a factor in his termination and were unrelated to his employment. MotiveWave violated s. 13 of the Code. However, I also find that Mr. T’s employment would have been terminated regardless of his convictions. As a result, his claim for wage loss is denied. I make declaratory orders and order MotiveWave to compensate Mr. T for injury to his dignity, feelings, and self-respect.
II EVIDENCE AND CREDIBILITY
[5] My findings are based on the evidence I heard from Mr. T and his mother, as well as Mr. Lindsay and Ms. Carter. Each of these witnesses were called upon to testify about events that happened nearly five years ago. Understandably, there were some gaps and inconsistencies in their memories. However, I am satisfied that each of them testified honestly and to the best of their ability. I am grateful for their evidence.
[6] Most of the important facts are undisputed. To the extent there are material disputes in the evidence, I find that they can be reconciled based on the relative significance of the event to the witness. For example, Mr. T denied or could not remember certain events that Ms. Carter testified were significant. I find it most likely that this is because Mr. T forgot or did not take note of the events at the time, whereas their impact on Ms. Carter ensured she remembered them. In such instances, I have preferred Ms. Carter’s evidence, not because I find that Mr. T made a “conscious decision not to tell the truth” but because Ms. Carter was better positioned to give accurate (and therefore reliable) evidence about it: Bradshaw v. Stenner, 2010 BCSC 1398, aff’d 2012 BCCA 296, leave to appeal refused, [2012] S.C.C.A. No. 392 at para. 186; see also Youyi Group Holdings (Canada) Ltd. v. Brentwood Lanes Canada Ltd., 2019 BCSC 739 at para. 89.
[7] The evidence about Mr. T’s convictions, rehabilitation, and mental health came almost entirely from his oral testimony. MotiveWave argues that, generally, Mr. T was not a credible witness. With respect, I disagree. I have accepted his undisputed evidence about these issues.
[8] First, I am not persuaded that Mr. T’s willingness to lie in a job application process means that he will lie under oath in a legal proceeding. These are two very different contexts. Mr. T explained why he is sometimes not forthcoming about his convictions when applying for jobs, and that explanation makes sense. I do not accept MotiveWave’s invitation to extrapolate that into a wider finding that he will lie whenever it suits him. To the contrary, I found that Mr. T was prepared to admit to things that did not cast him in a good light, including in relation to the impact of his criminal behaviour on other people.
[9] Further, I disagree that parts of Mr. T’s evidence made “no sense”, were implausible, or were inconsistent with documentary evidence. I acknowledge that some of Mr. T’s evidence shifted during cross-examination. For example, he testified in direct examination that he had been hospitalized several times after his termination. In cross, MotiveWave’s lawyer put it to him that there was only a record of one visit during this period. He then agreed it was possible he was misremembering the timing of the visits. In my view, these shifts did not undermine his credibility but enhanced it. He was willing to acknowledge when he may have been wrong, and agree with reasonable propositions put to him on cross. In other instances, Mr. T would not agree with counsel’s characterizations of some of his conduct and reasoning. Whether or not he was right (and on some issues he wasn’t), I did not find that this undermined his credibility. Rather, I am satisfied that Mr. T testified about his honestly held perspective of events.
[10] Finally, I decline to draw an adverse inference from Mr. T’s failure to produce documentary evidence about his criminal and medical records. While it was open to him to do so, he was not required to. The Respondents could have asked for these records in the disclosure process and did not. In that sense, the evidence was equally available to both parties: Singh v. Reddy, 2019 BCCA 79 at paras. 8-10. I am entitled to rely on Mr. T’s evidence about his criminal and medical history and do so in this decision.
[11] In sum, I am satisfied that all the witnesses testified honestly. Where there are material disputes in their evidence, I explain my findings below about whose evidence I find more reliable on that issue.
III ISSUES
[12] Section 13 of the Code prohibits discrimination in employment because a person has been convicted of a criminal or summary conviction offence that is unrelated to their employment. The protection recognizes, and aims to eliminate, the unjustified social stigma and exclusion of people who have “been in trouble with the law”: Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Maksteel Québec Inc., 2003 SCC 68 [Maksteel] at para. 20. Among other things, it serves the public purpose of supporting the reintegration of people into the workforce, which in turn supports their rehabilitation and overall social wellbeing: Woodward Stores Ltd. v. McCartney, 1982 CanLII 4851 (BC HRT), upheld in 1983 CanLII 4691 (BCSC), at para. 4. The Supreme Court of Canada explains:
The right of individuals with criminal convictions to employment and to re‑enter the labour market are important values in our society… In the case of employment, the courts must take a firm stance against discrimination based on criminal record. The saying “once a criminal, always a criminal” has no place in our society. Individuals who have paid their debt to society are entitled to resume their place in society and to live in it without running the risk of being devalued and unfairly stigmatized. [Maksteel at para. 63]
[13] In this case, there is no dispute that Mr. T had criminal convictions and MotiveWave terminated his employment. The complaint turns on two issues.
[14] The first issue is whether Mr. T’s criminal convictions were a factor in MotiveWave’s decision to terminate his employment: Moore v. British Columbia (Education), 2012 SCC 61 at para. 33. Like any ground of discrimination, the convictions need only be one factor: Québec (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. 52; Maksteel at para. 49. The burden is on Mr. T to prove this connection.
[15] The second issue is whether Mr. T’s criminal convictions were unrelated to his employment at MotiveWave. The burden is on MotiveWave to establish that Mr. T’s criminal convictions related to his employment: Maksteel at para. 53. As an exception to the Code’s protections, this criterion is construed narrowly: Maksteel at para. 10; Zurich Insurance Co. v. Ontario (Human Rights Commission), [1992] 2 SCR 321 at p. 339. The Tribunal undertakes a contextual assessment, based on all the circumstances of the case. Relevant, but non-exhaustive, factors to consider include:
1. Does the behaviour for which the charge was laid, if repeated, pose any threat to the employer’s ability to carry on its business safely and efficiently?
2. What were the circumstances of the charge and the particulars of the offence involved, e.g. how old was the individual when the events in question occurred, were there any extenuating circumstances?
3. How much time has elapsed between the charge and the employment decision? What has the individual done during that period of time?Has he shown any tendencies to repeat the kind of behaviour for which he was charged? Has he shown a firm intention to rehabilitate himself?
Woodward Stores at para. 76
[16] MotiveWave did not advance a defence of bona fide occupational requirement. It took the position, relying on Maksteel, that this defence is not applicable to allegations of discrimination based on an unrelated criminal conviction. However, the Court’s finding in Maksteel turned on the specific provisions of the Quebec legislation, which had substituted a different defence for criminal conviction: para. 53. The Court specifically distinguished other legislation, including BC’s Code, which makes the defence available: para. 54; see for example, The Applicant v. BC Ministry of Education, 2019 BCHRT 60 at para. 17. In this case, given that MotiveWave does not rely on the defence, I do not need to consider it further.
[17] I turn now to the events giving rise to the complaint.
IV EVENTS GIVING RISE TO THE COMPLAINT
[18] Mr. T is the youngest of five siblings. He is a “born tinkerer” and “tech geek” who loves taking things apart to see how they work. He is part of a large and close-knit family, and is close to his mother, siblings, nieces, and nephews.
A. The convictions
[19] In December 2014, Mr. T robbed a bank. He gave evidence about the circumstances of this robbery, which I accept. He says that, at the time, he had undiagnosed mental illnesses. He tried getting help, unsuccessfully. He became fixated on money as the barrier to his wellness and success. During an episode that his psychiatrist later described as “full blown psychosis”, he developed a plan to rob a bank to prove that money is a myth. He planned the robbery, in his mind, to ensure no one would be hurt. While no one was physically hurt, he now acknowledges that the event was traumatic for people present and working in the bank that day. Among other things, he fastened the doors to the bank with zip ties so no one could enter or exit, came close to the bank teller and shook his bag to imply he had a weapon, and forced the teller to give him increasing sums of money. In his bag, he had a small exacto blade and a broken pair of scissors. It was very close to Christmas.
[20] Shortly after, Mr. T was arrested and charged with bank robbery. He was in his early 20s.
[21] While Mr. T was awaiting trial, he was charged with obstruction of justice in relation to his communications with a witness. Mr. T disputes that he intimidated this witness (as reported in the media) and says this charge was based on his misunderstanding of how he was allowed to communicate with witnesses. In December 2016, he was convicted and sentenced to nine months in jail. While he was released on bail, his mental health declined, and he breached probation. As a result, he was sent back to prison around July 2017. He says that, during his incarceration, he had time to heal, mentally and physically.
[22] In December 2017, Mr. T pled guilty to the bank robbery charge. He was sentenced to time served, plus 18 months’ probation. Mr. T says that he now understands how immature and unwell he was at the time. He accepts that he caused harm and acknowledges his responsibility to earn back the trust of his community. He wants to reintegrate and move forward with his life.
[23] After 2017, Mr. T obtained psychiatric treatment. He was diagnosed and started taking medication. He developed a plan to identify early signs that his mental health was decompensating, and strategies to keep himself and others safe. He returned to school and found some work. He began helping people involved with proceedings at the Residential Tenancy Branch. He started his own small business. He says that his mantra during this time was “#movingforward”. He has not been charged or convicted of any crime since 2017.
[24] At the time of his convictions, Mr. T’s last name was “U”. In 2018, Mr. T started using “T” as his last name. He explains he did this because he was finding that people were treating him differently after they searched his name online and found sensationalized news articles about his convictions. He wanted a fresh start. The process of legally changing his name completed in around October 2020.
B. Job application and hiring
[25] MotiveWave sells a software that is used for online financial trading. Mr. Lindsay is the owner and founder of the company. Ms. Carter is the co-founder, and its Director of Sales and Marketing. They are married and have three children. It is a small company, with only two other employees during the relevant time.
[26] In early 2020, Mr. T applied for a job with MotiveWave as a “Product Support Specialist”. The Product Support Specialist helps MotiveWave’s customers, including responding to calls and emails and providing live support. The position was located in the basement of Ms. Carter and Mr. Lindsay’s home.
[27] When Mr. T applied for the job with MotiveWave, his name had not yet been legally changed. He used his new last name (“T”) instead of his legal last name with which he’d been convicted (“U”). He did this purposely, to ensure that prospective employers – including MotiveWave – would not find information about his convictions online.
[28] Mr. T successfully passed three interviews with MotiveWave. The second interview was with Ms. Carter, in a coffee shop. During this interview, Ms. Carter asked if Mr. T had any criminal convictions. He said no. Ms. Carter explained that this was important because the position was based in her home, where her children would be present. Mr. T did not disclose his convictions. Ms. Carter says she googled Mr. T’s name and did not find any relevant information online. She would later learn that this was because Mr. T was not his legal name.
[29] Mr. T gave several explanations for his decision to lie about his criminal convictions, which I accept. First, he says that he did not consider his criminal convictions to relate to the job or the safety of Ms. Carter’s children. From his perspective, his convictions had nothing to do with violence or children or any other aspect of the job, as he understood it. Second, he says that he considered it significant that MotiveWave did not require him to complete a criminal record check. He figured that they had done their due diligence and, if it were truly necessary, would have required a criminal record check. He generally does not apply for jobs which require a criminal record check because he finds it unlikely employers will hire him after finding his convictions. Finally, Mr. T says that he did not feel comfortable disclosing his convictions in a public space. In my view, this was a relatively minor concern; Mr. T could have raised the convictions later in a private space if he were otherwise inclined to be honest about them. Ultimately, Mr. T lied because – based on other experiences he’d had – he felt it was unlikely he would get the job if he didn’t. From his perspective, it was an inappropriate question to ask and he did not feel compelled to answer it honestly in the circumstances.
[30] Returning to Mr. T’s job application, Ms. Carter and Mr. Lindsay each testified that they had some reservations. Mr. Lindsay’s impression was that Mr. T had overstated some of his skills and qualifications. On the other hand, they liked Mr. T’s energy and enthusiasm, and were feeling somewhat desperate. The Product Support Specialist was a hard position to hire for, and there were no other qualified applicants. They decided to give Mr. T a shot. Mr. Lindsay testified that they thought that the worst-case scenario was that, if it didn’t work out, they would terminate Mr. T’s employment and move on.
[31] On August 14, Ms. Carter sent Mr. T an employment contract. He signed and returned it on August 17.
C. Work for MotiveWave
[32] Mr. T started work on August 24. The next day, he completed forms relating to his banking information. This is when Ms. Carter first learned his legal last name, U. She says Mr. T seemed very nervous giving her these forms, and explained that he was in the process of changing his legal name. She recalls being surprised but thinking that there could be any number of reasons he was using a different name. She told Mr. Lindsay after work, and he says he also found it strange. They did not follow up right away. Ms. Carter says it “left my mind”.
[33] Mr. T worked for MotiveWave for seven days before his employment was terminated. During this time, both Ms. Carter and Mr. Lindsay testified that they had concerns about his performance.
[34] Mr. Lindsay’s concerns centred on his perception that Mr. T was unfocused and not progressing in his training. He and Ms. Carter say this was the feedback they were also receiving from the two employees training Mr. T. They gave these examples:
a. Mr. T was not completing the online courses or training that he had been assigned by the other employees. He had a significant learning curve to surmount on certain issues and was not focused on learning about them.
b. Mr. Lindsay instructed Mr. T to purchase a new computer for his work. Rather than buying an off-the-shelf laptop, like the other employees had, Mr. T sourced parts to build a much more powerful computer that would typically be used for gaming. Mr. T says that Mr. Lindsay had agreed with his assessment that he needed more computing power than a regular laptop for security reasons. Both Mr. Lindsay and Ms. Carter agree that they told Mr. T that he could investigate building his own computer but they each felt he spent too much time on it and it was unnecessary.
c. Mr. T told Mr. Lindsay that he was concerned with the internet connectivity in the office and suggested that they may be able to improve it. Mr. Lindsay says that Mr. T seemed very confident in his ideas, and they spent time walking through the whole house to examine the connections. Later, a Telus employee confirmed that Mr. T’s assessment had been wrong. Though he says he found the incident “weird”, Mr. Lindsay says he did not put much weight on it at the time.
d. Mr. T was spending too much time trying to make changes to MotiveWave’s website, which was not part of his job. Mr. Lindsay says that he initially did not want to discourage Mr. T’s ideas, but it got to a point where he felt that Mr. T was wasting time. Mr. Lindsay says he spoke to Mr. T twice to remind him to stay focused on his work. He says that it was unusual for him to give negative feedback so early into Mr. T’s employment, and he had never had to do so twice. Generally, his goal is to build a new employee’s confidence and champion their successes.
[35] In addition to these performance issues, Ms. Carter’s concerns centred on her interpersonal interactions with Mr. T. She says that, from the start, he was unusually demanding. She says he repeatedly asked questions and/or complained about the benefits, his equipment, and the office temperature, even after she had already addressed the issue. She says she felt uncomfortable about two comments that Mr. T made during a lunch they had together. The first comment arose when Mr. T checked his email and saw his former employer had paid overtime that he was owed. Ms. Carter says Mr. T said something along the lines that it was a “good thing” the employer had paid him, because otherwise he would have had to “go after them”. Mr. T agrees that he may have made a comment about his former employer finally paying his overtime, but from his perspective there was nothing strange about it. The second comment that bothered Ms. Carter was that Mr. T did not live with his girlfriend because “she needs a safe place to go when things get intense”. Mr. T denies making this comment because he says it was not true. I do not need to decide what Mr. T said about his girlfriend or whether Ms. Carter’s reactions to his comments were reasonable. I accept that he said things during this lunch that made Ms. Carter uncomfortable. Ms. Carter also testified about other incidents which, in hindsight, she says were signs that something was different about Mr. T. I do not put weight on those incidents because, in my view, they have been retroactively imbued with more significance than they warrant. However, it is fair to say that Ms. Carter and Mr. T were not, in these early days, a good working fit.
[36] Ms. Carter was also uncomfortable about Mr. T’s repeated requests to have backend access to MotiveWave’s website to mock up his proposed changes. She says that is not information they would give to any employee until a significant amount of trust had been built. The website was not within Mr. T’s scope of work. She says that she and Mr. Lindsay each declined his request, and he kept asking.
[37] For his part, Mr. T felt that he was performing well and receiving positive feedback. There is no dispute that, aside from the two times that Mr. Lindsay told Mr. T to focus on his work, neither Mr. Lindsay or Ms. Carter spoke to Mr. T about their concerns or the fact that he was making Ms. Carter uncomfortable. Ms. Carter says they were cautious about giving him feedback because he seemed anxious.
[38] By September 1, Ms. Carter says that things had come to a head. She says that the other two employees were persistently raising concerns about Mr. T’s demeanor and performance, and she and Mr. Lindsay were trying to decide whether to keep trying to make it work, or to let him go. She says that they scheduled a call with the two other employees on September 2 to decide whether it was worth continuing with Mr. T. Before that call, however, two other significant events occurred that triggered Mr. T’s termination later that night.
[39] On the afternoon of September 1, Ms. Carter and Mr. T had an interaction that Ms. Carter says left her shaken. At the outset I note that Mr. T’s evidence was that this interaction did not happen. However, I am satisfied that it did. It made a big impression on Ms. Carter, and her evidence was consistent with Mr. Lindsay’s – that she was still shaking and upset later that evening. In my view, it makes sense that Mr. T would not remember this interaction because it was not significant to him. Ms. Carter remembers it because it was significant to her.
[40] Ms. Carter says that it was near the end of the day and she and Mr. T were alone in the home office. She says that Mr. T started talking to her. At first, he was asking questions about vision care that they had already talked about. She says he was “agitated”. He started asking again for backend access to the website. He came to her desk, wanting to show her his ideas. She tried to encourage him, saying that he could write down his ideas and maybe down the road they would give him access to make the changes. She says that he pressed the issue, saying it was “imperative” that he get access, and he didn’t see what the big deal was. She apologized and again said no. She says that he then got more “aggressive” and was leaning on her desk. Ms. Carter stressed that she is not easily intimidated but, during this conversation, she felt intimidated. Mr. T was not violent, but he was combative and continued to argue after she had said no several times. He was standing over her and waving his hands. She was shocked at how long it went on. She tried to wrap it up, and eventually Mr. T left for the day.
[41] For his part, Mr. T says that September 1 was a day “like every other day”. He thought he was on track and things were going really well. He “felt like a star”. He denies having this negative interaction with Ms. Carter. However, as I have said above, I find Ms. Carter’s memory more reliable on this point. In my view, this was not likely a memorable conversation for Mr. T. I think it most likely he did not understand or perceive how Ms. Carter was responding to him, and did not consider his questions to be aggressive or inappropriate. For Ms. Carter, on the other hand, it was a significant interaction that she has remembered clearly five years later.
[42] After work, Ms. Carter poured herself a glass of wine, which both she and Mr. Lindsay said was unusual for her. Mr. Lindsay found her shaking in the kitchen, making dinner. She did not want to talk right away; she needed some time to process. After dinner, the two sat down to talk about what had happened. Ms. Carter told Mr. Lindsay they needed to let Mr. T go. She told him she felt he had been aggressive, and she felt upset and scared.
[43] I accept that, at this point, Mr. Lindsay and Ms. Carter had decided to terminate Mr. T’s employment the next day. This decision was not based on his criminal convictions, because they did not know about them yet. This is when Ms. Carter remembered that Mr. T’s legal name was “Mr. U” and decided to google him.
D. The termination
[44] Ms. Carter’s google search generated several news articles detailing the circumstances of the bank robbery and Mr. T’s conviction for obstruction of justice. The facts in the articles are startling and, I fully accept, were shocking to the two. Among other things, one article reported that the witness that Mr. T had spoken to felt scared for himself and his kids. Mr. T denies this was true and I do not rely on a hearsay news article to find that it was. The significance for present purposes is that Mr. Lindsay and Ms. Carter were scared by what they read and perceived that Mr. T posed a safety threat to them and their kids.
[45] It was around 9:00 pm. Mr. Lindsay phoned Mr. T to find out if the articles were about him and, if so, to ensure he would not return to the house the next day. In hindsight, both he and Ms. Carter acknowledge that they probably should not have called Mr. T in the heat of the moment.
[46] The first thing that Mr. Lindsay said to Mr. T was that they had searched for Mr. T’s legal name online and found media articles about the bank robbery. He asked, “is this you?”. Mr. T immediately said yes. Mr. Lindsay said, “you told us you didn’t have a criminal record”, and again Mr. T was frank in admitting he lied. There is some dispute about what exactly Mr. Lindsay said next but in my view the details do not matter. He said something like, “as a father, I can’t have you working in my house”. Regardless of the exact words spoken, the meaning was clear: because of Mr. T’s criminal convictions, he was fired effective immediately.
[47] Mr. T started pleading with Mr. Lindsay to find a solution. He tried to explain that the information in the articles was incorrect, that the issue was his mental health, that he had gotten help, and had taken responsibility. He told Mr. Lindsay he could talk to his mother, friends, probationary officer – anyone would confirm that he was a good person. He suggested he could work remotely. However, Mr. Lindsay was resolute. The relationship had been tarnished, and the employment could not continue. Mr. Lindsay did not ask any questions about the circumstances of the convictions or Mr. T’s rehabilitation. He offered to give Mr. T a reference.
[48] Once it was clear that Mr. Lindsay would not change his mind, Mr. T shifted gears. He said that this felt like discrimination. He suggested that Mr. Lindsay talk to a lawyer to make sure he was making the right decision. From his perspective, he was still hoping the issue could be fixed and he could keep working for MotiveWave. From Mr. Lindsay and Ms. Carter’s perspective, Mr. T was threatening legal action. Mr. Lindsay says Mr. T told them, “this is going to be very expensive for you”.
[49] It is undisputed that, during this call, Mr. Lindsay did not offer Mr. T any explanation for his termination other than the criminal convictions. Mr. Lindsay explains that he did not want to get into the details of their decision or inflame the situation. His goal during the call was just to calmly let Mr. T know he could not return to the house.
[50] Mr. T was devastated by the call, and his termination. I return to this below. For their part, Mr. Lindsay and Ms. Carter were shaken and scared. I accept that this fear lasted for some time after Mr. T’s employment ended. However, the only other interactions they had (outside this litigation) were civil, relating to finalizing the termination.
[51] On September 2, the day after he was fired, Mr. T filed this human rights complaint.
[52] On September 3, Mr. Lindsay sent Mr. T a termination letter. He wrote, “The reason for termination of your employment is that we have determined you are not a good fit with the team or the tasks assigned to you”.
[53] I turn now to the two issues I must decide.
V DECISION
[54] I must decide two questions:
a. Were Mr. T’s criminal convictions a factor in his termination; and
b. If so, were those convictions unrelated to his employment?
[55] I consider each of these questions in turn.
A. Criminal convictions were a factor in the termination
[56] MotiveWave argues that Mr. T’s convictions were not a factor in his termination, because Mr. Lindsay and Ms. Carter had already decided to terminate his employment before they learned about the convictions. Respectfully, I disagree.
[57] I have accepted that MotiveWave had decided to terminate Mr. T’s employment on September 2 for non-discriminatory reasons. However, its decision to terminate his employment on September 1 was clearly based at least in part on his criminal convictions. Mr. Lindsay was frank in acknowledging this in cross-examination:
Q: …You were part of the decision-making process, in terms of how to terminate [Mr. T]. You had a phone call with him on September 1st?
A: Yes.
Q: And you terminated his employment in that phone call?
A: Yes.
Q: And so you called him September 1st to terminate his employment without notice because you had learned about his criminal conviction, correct?
A: Correct.
[58] In fact, the convictions were the only reason that Mr. Lindsay called Mr. T that night and terminated his employment effective immediately.
[59] I appreciate that circumstances were exacerbated by the fact that Mr. T had lied about his convictions in the interview process. It is possible that, had Mr. Lindsay and Ms. Carter considered the convictions and concluded (as I have) that they were unrelated to Mr. T’s employment, they would have terminated his employment for dishonesty anyway. They may have been justified in doing so: see e.g. McKinley v BC Tel, 2001 SCC 38 at paras. 48-49. However, I have found as a fact that it was the nature of Mr. T’s crimes that scared Mr. Lindsay and Ms. Carter and prompted the phone call on September 1. This distinguishes the circumstances from the cases cited by MotiveWave, where the Tribunal accepted the employer’s evidence that it had terminated the complainant for dishonesty and not the convictions themselves: Patrie v. BC Transit, 2017 BCHRT 118 and Smith v. F.C.L. and Jones, 2006 BCHRT 208.
[60] At the same time, there is no dispute that Mr. Lindsay’s message during this call was that Mr. T’s employment was being terminated because of the convictions. Regardless of Mr. Lindsay’s intentions (which are not relevant to the human rights analysis), the impact on Mr. T was to connect his convictions to his termination.
[61] This is similar to the circumstances in English v. Sihota, 2000 BCHRT 19, and Ben Maaouia and others v. Toscani Coffee Bar and another, 2021 BCHRT 23. In English, the employer told the employee that he was being fired because he was “going with a younger look”. The employer said he was just trying to be “delicate” when he was firing the employee, and that in reality the employee’s age was not a factor in the decision. The Tribunal found that the motivation did not matter. Rather, the effect of making the comment at the moment of termination – whether or not it was true – was to discriminate against the employee. Likewise, in Ben Maaouia, the café owner told the complainants that she did not want to serve “you Arabs”. Though their ancestry was not the real reason that the owner was asking them to leave, the impact of telling them that they had to leave because they were Arab was discriminatory: paras. 33-36.
[62] MotiveWave argues that the Tribunal should be reluctant to analogize between unrelated criminal conviction, and the other protected grounds under the Code. It argues that, whereas the other grounds relate to immutable characteristics, a person’s criminal record is something they did to themselves.
[63] With respect, neither the case law nor the purposes of the Code support such a distinction. In Maksteel, the Court cited a line of Quebec authority holding that having a criminal record could not infringe a person’s dignity. In one such case, the Court reasoned along similar lines to what counsel argued in this case:
… A criminal record is the direct consequence of unlawful acts intentionally committed by the person with that record… That person could certainly not claim to have been denied equality of value and dignity… when it was the person himself or herself who impaired that value and dignity by committing the acts that resulted in the convictions.
Commission des droits de la personne du Québec v. Ville de Beauport, [1981] C.P. 292 at p 300; cited in Maksteel at para. 15
The legislature’s response to this conservative reasoning was to amend the human rights legislation to confer protection based on criminal conviction: Maksteel at para. 20. By that time, the protection was already enshrined in BC’s Code. This legislative response is determinative of MotiveWave’s argument.
[64] There is no hierarchy of grounds in human rights legislation: see e.g. Canada (Attorney General) v. Johnstone, 2014 FCA 110 at para. 81. As I have said, the legislature’s choice to prohibit discrimination in employment based on an unrelated criminal conviction is a response to unjustified social stigma and exclusion. To the extent that MotiveWave’s argument is that people with criminal convictions have to accept the fair consequences of their own choices, that principle is given effect through the limiting principle that the protection only applies to convictions unrelated to employment.
[65] In sum, Mr. T only had to prove that his criminal convictions were one factor in the termination of his employment on September 1. I am satisfied that they were. I turn now to whether those convictions were unrelated to his employment.
B. Unrelated to employment
[66] MotiveWave argues that Mr. T’s convictions were related to his employment because:
a. The place of employment was in Mr. Lindsay and Ms. Carter’s home, where their three young children were present. This argument focuses on the violent and threatening nature of Mr. T’s crimes.
b. The Product Support Specialist has opportunities to access banking and private information from MotiveWave customers. This argument focuses on the conviction for stealing money.
[67] To decide this issue, I consider the three broad factors identified in Woodward: (1) the behaviour underlying the convictions, (2) the circumstances of the convictions, and (3) Mr. T’s rehabilitation.
1. Behaviour underlying the conviction
[68] Woodward invites the Tribunal to consider whether the behaviour giving rise to the conviction, if repeated, would pose any threat to the employer’s ability to carry on its business safely and efficiently.
[69] Mr. T does not dispute that, if he repeated the behaviour underlying his conviction for bank robbery, it would pose a threat to MotiveWave’s business. I accept this is true. If Mr. T robbed MotiveWave or its clients, that would pose a threat to the business. This is both because of the violence underlying this crime, and because it was a crime to steal money. Though MotiveWave takes care to minimize its access to customers’ private information, the Product Support Specialist is in a position where, if they really wanted to steal from a client, they could probably find a way.
[70] Mr. T disputes that the behaviour underlying the conviction for obstruction of justice would, if repeated, pose any threat to MotiveWave’s business. He argues that this charge is unique to the circumstances of trying to influence a witness’s evidence in a court proceeding and has limited, if any, application in a workplace. As I understand MotiveWave’s position, it is that Mr. T’s behaviour underlying this conviction was to intimidate and threaten a witness. If he engaged in similar behaviour towards MotiveWave staff or clients, that would jeopardize the business. I agree.
[71] This is where MotiveWave’s analysis stops. However, human rights law is clear that this factor alone is not determinative.
[72] MotiveWave argues that the threat posed by Mr. T was elevated because he was working in the home where three young children were present. At the material time, the children were 3, 5, and 7 years old. They would sometimes come into the office space, and/or be present in other areas of the house where Mr. T may go (i.e. the bathroom). This was Mr. Lindsay and Ms. Carter’s primary concern. As Mr. Lindsay explained, he is a “father first” and his primary concern is the safety of his kids. This is completely understandable, and to be expected. However, in this case I am not considering Mr. Lindsay and Ms. Carter’s conduct as parents, but as employers with duties towards Mr. T under the Code.
[73] MotiveWave submits that this case is analogous to those where the courts have found that the prohibition of discrimination based on unrelated criminal conviction does not immunize a person from the civil consequences of their incarceration. Specifically, if a person loses their job because they can’t attend work, and they can’t attend work because they are incarcerated, the employer does not violate human rights law by firing them. That was the case in Maksteel. I do not see this as analogous to this case.
[74] Mr. T was not incarcerated. He was available to work. The issue is whether the nature of his offences meant he could not safely work in Mr. Lindsay and Ms. Carter’s home. It is not enough to say that someone has committed a crime that harmed people (as Mr. T did) and therefore cannot work in an office in a home with children in it. The law requires a more nuanced and contextual analysis.
[75] I have accepted that the behaviour underlying Mr. T’s convictions would, if repeated, pose a threat to MotiveWave’s business. Mr. T’s crimes did not involve children, and there is no evidence that he posed any specific threat to children. MotiveWave has not suggested that his job required him to work with children, which would trigger the requirement for a criminal record check under the Criminal Records Review Act. However, if Mr. T engaged in those behaviours in a home with children present, it would be harmful to them. I agree, without reservation, that an employer has no obligation to employ someone who poses a threat to their children. But the law is clear that the threat must be assessed contextually, and not solely by focusing on a past crime. I turn then to the other contextual considerations, which in my view establish that by the time he was employed by MotiveWave, Mr. T did not pose a threat to its business or the children.
2. Circumstances of the convictions
[76] Within this factor, Woodward invites the Tribunal to consider:
What were the circumstances of the charge and the particulars of the offence involved, e.g. how old was the individual when the events in question occurred, were there any extenuating circumstances?
[77] I find this factor very significant.
[78] When Mr. T committed the bank robbery, he was dealing with an undiagnosed and untreated mental illness. He was in his early 20s and, by his own admission, immature and unwell. He had been living apart from his family, navigating an eviction without any meaningful supports. His rationale for the crime derived from his mental illness and a fixation on proving a point about money. He has never done anything like that before, or since. His mother testified that she was shocked when she found out about the crime, because it was so out of character.
[79] After 2017, Mr. T finally got the medical treatment he needed. He has been diagnosed, is using medication, and is under the care of a psychiatrist. He understands the triggers that can threaten his mental health, and the symptoms for when his mental health is decompensating. He has developed a plan to respond to those circumstances and ensure he does not hurt himself or anyone else. He is close to his mother and siblings, who are also on alert for these triggers and symptoms. At the same time, he has matured as he gets older.
[80] In my view, these extenuating circumstances support that Mr. T’s crimes were related to a mental illness that was being effectively treated during his employment at MotiveWave. There is no evidence to suggest that the circumstances leading to the crimes were likely to recur absent a complete decompensation in his mental health, which he had planned for. These extenuating circumstances support that the likelihood of Mr. T engaging in violent or threatening behaviour, or trying to steal money, was very low, if not negligible.
3. Rehabilitation
[81] The final Woodward factor focuses on Mr. T’s rehabilitation since his convictions. I consider:
How much time has elapsed between the charge and the employment decision? What has the individual done during that period of time? Has he shown any tendencies to repeat the kind of behaviour for which he was charged? Has he shown a firm intention to rehabilitate himself?
[82] These considerations are applied to further the purposes of rehabilitating persons convicted of criminal offences: Ireland v. TransLink and another, 2016 BCHRT 19 at para. 105.
[83] When Mr. T started his work with MotiveWave in August 2020, nearly six years had passed since the robbery in December 2014. He was nearly 30 years old. Three years had passed since he pled guilty and was sentenced to time served and 18 months probation. During his probation, he lived with his mother, went back to school, found work, and started his own small business. He began helping tenants navigating the Residential Tenancy Branch process, as a way to give back to his community. He is resolute in a determination to rehabilitate himself and move forward after his convictions. However, one of the biggest obstacles to his rehabilitation is how people respond to him when they learn about the convictions.
[84] Both Mr. Lindsay and Ms. Carter gave evidence about Mr. T’s demeanour and conduct that, in hindsight, they say was strange and concerning. From Ms. Carter’s perspective, the behaviours and her instincts affirmed that Mr. T was still demonstrating tendencies that underlay his criminal past. I put no weight on this evidence. I appreciate that Ms. Carter in particular may have found some of Mr. T’s conduct strange, but none of it was suggestive of him being violent or a threat. This meaning was imposed after the fact, after they learned about the convictions and after they grew afraid of Mr. T. The possible exception is Ms. Carter’s last interaction with Mr. T on September 1, which left her feeling intimidated and shaken. However, I do not conclude that Mr. T’s conduct in pressing an issue that had already been addressed, and standing over Ms. Carter while they were alone, is evidence that he was likely to repeat his criminal behaviour. Rather, it supports my finding that the two were not a good working fit. In the result, there is no reliable evidence before me that Mr. T has shown tendencies to repeat the kind of behaviour for which he was charged.
[85] Rather, the evidence before me supports that Mr. T has demonstrated a firm intention to rehabilitate himself. He described his job with MotiveWave as a “dream job” that allowed him to work in the field he was passionate about, with people he admired. He foresaw opportunities to grow and progress. Mr. T’s commitment to rehabilitation and success cement my conclusion, considering all the circumstances, that his previous convictions were unrelated to his employment with MotiveWave.
C. Conclusion: finding of discrimination
[86] I have found that Mr. T’s criminal convictions were unrelated to his employment and were a factor in MotiveWave’s decision to terminate his employment on September 1. This means that MotiveWave violated s. 13 of the Code. I turn now to the appropriate remedies.
VI REMEDIES
[87] I declare that MotiveWave’s conduct in terminating Mr. T’s employment on September 1 was discrimination contrary to s. 13 of the Code. I order it to cease the contravention and refrain from committing the same or similar contravention: Code, s. 37(2)(a) and (b).
[88] In addition to these orders, Mr. T seeks compensation for wage loss and injury to his dignity, feelings, and self-respect. I consider each of these in turn.
A. Wage loss
[89] Section 37(2)(d)(ii) of the Code gives the Tribunal discretion to compensate the person discriminated against for “all, or a part… of any wages or salary lost… by the contravention”. The object of an award for wage loss is to put the person in the position they would have been in had the discrimination not occurred: Gichuru v. The Law Society of British Columbia (No. 9), 2011 BCHRT 185 at para. 300.
[90] Mr. T seeks an award for 18 months of wage loss, which is the period between his termination and when he was able to find new full-time employment. Respectfully, this claim is denied.
[91] I have found that, if Mr. Lindsay and Ms. Carter had not learned about Mr. T’s criminal convictions, they would have terminated his employment for non-discriminatory reasons the next morning. In this situation, there is no wage loss flowing from the discrimination.
B. Compensation for injury to dignity, feelings, and self-respect
[92] A violation of a person’s human rights is a violation of their dignity. That is why the Code confers discretion on this Tribunal to award damages to compensate a complainant for injury to their dignity, feelings, and self-respect: s. 37(2)(d)(iii). The purpose of these awards is compensatory, and not punitive. In exercising this discretion, the Tribunal generally considers three broad factors: the nature of the discrimination, the complainant’s social context or vulnerability, and the effect on the complainant: Torres v. Royalty Kitchenware Ltd., 1982 CanLII 4886 (ON HRT); Gichuru at para. 260. In this case, Mr. T seeks an award of $20,000.
[93] I begin with the nature of the discrimination. Any case involving the termination of employment is inherently very serious, and would typically attract the top end of the Tribunal’s awards: The Sales Associate v. Aurora Biomed Inc. and others (No. 3), 2021 BCHRT 5 at para. 190. However, in this case, the nature of the discrimination is mitigated somewhat by my finding that, but for the discrimination, Mr. T would have lost his job the next day anyway. In my view, the injury to his dignity flows from being told that he could not continue to work for MotiveWave because of his convictions.
[94] Next, I consider Mr. T’s vulnerability. I accept there is an inherent power imbalance between employers and employees: Wallace v. United Grain Growers Ltd, [1997] 3 SCR 701 at para. 92. This vulnerability is most heightened at the point when a person’s employment is being terminated: Wallace at para. 95. At the same time, as Mr. T described, people with criminal convictions face barriers to employment, arising from the stigma associated with their crimes. This is the reason that the protection in s. 13 of the Code exists.
[95] The most significant factor in this case is the impact that the discrimination had on Mr. T. I accept that impact was very serious. Mr. T testified that, in the days after his termination:
What really ate away at me is that Tony and Leigh could have said any other reason for terminating me. They could have just sent me an email saying, sorry it’s not working out, don’t show up. And I would have been… not as happy, but I don’t think it would have really affected me. I think I would have been more keen to just to find a new job and [move] forward. But the indication to me that the only reason they fired me was because of my criminal history and it had nothing to do with who I was as a person, or the work I did as a worker, it basically indicated to me that I could be the best worker and the most courageous and happy person and people will still fire me for a criminal event that happened many many many years ago. And that demeaning of my character and who I was made it feel like all the progress I had made was for nothing … Because ultimately if I ever came into a position of power, then people would only see me for the crimes I’ve committed and not for the good I have done.
[96] This evidence highlights how the manner of his termination, and the reasons given for it, impacted Mr. T’s dignity. He testified, and I accept, that these circumstances give rise to the triggers for his poor mental health – something that is objectively unfair, and out of his control. He immediately enrolled in school but was unsuccessful and had to withdraw. Circumstances of the COVID-19 pandemic made it difficult to find other work. Without a sense of purpose, his mental health, predictably, suffered. He explains:
At the time, there was a lot of helplessness in relation to what had happened. There was a huge part of me that said you know, this thing happened in 2014… Since then I’ve been trying to make amends, to prove myself, to be somebody that my community would be proud of. And that was taken away from me. And I felt like no matter what I do, I’ll never get a job because people will just look at something I did years ago and let me go [based] on that. Without notice and without warning, take everything I worked for away from me. And so that process made me think that my life isn’t worth anything. And I had some really deep thoughts about what purpose I have in society or in a community in which no one wants me or no one would give me the time of day to give them my knowledge or to help them.
[97] Mr. T’s mother saw firsthand how the manner of Mr. T’s termination triggered a set back in his mental health. She says that Mr. T isolated himself, slept a lot, and was losing weight. Eventually, with the support of his family, Mr. T was able to start to regain his sense of self-worth and, once again, move forward.
[98] I turn now to the appropriate amount of an award. At the outset I reject the submission that I should consider only the awards in other cases involving the ground of criminal conviction. There are very few such awards. The parties have referred me to three, which were made between 1989-1991 and ranged from $1,000 to $1,500: Thompson v. Granny’s Fried Chicken Ltd, 1989 CanLII 9049 (BC HRT); Blevins v. Christine’s Food Supplies Ltd, 1991 CanLII 13160 (BC HRT); Mans v. British Columbia Council of Licensed Practical Nurses, 1990 CanLII 12489 (BC HRT). I can discern no principled reason to isolate and elevate the significance of the ground of discrimination as a proxy for the damages to a person’s dignity from discrimination. Again, I reject MotiveWave’s invitation to treat unrelated criminal conviction as a lesser ground of discrimination.
[99] Considering all the circumstances, I exercise my discretion to award $10,000 to Mr. T. This is the amount that the Tribunal awarded in the only case that Mr. T has referred me to: Singh v. Dodd’s Furniture (No. 2), 2021 BCHRT 85. It accounts for the fact that Mr. T’s employment would have been terminated anyway, but that the way he was terminated had a significant impact on his mental health and wellbeing. In my view, this amount is a proportionate response to the injury to Mr. T’s dignity in this case.
VII ORDERS
[100] I have found that MotiveWave discriminated against Mr. T in his employment based on an unrelated criminal conviction. My orders are:
a. I declare that MotiveWave’s conduct contravened s. 13 of the Code: Code, s.37(2)(b).
b. I order MotiveWave to cease the contravention and refrain from committing the same or similar contraventions: Code, s. 37(2)(a).
c. I order MotiveWave to pay Mr. T $10,000 as compensation for injury to his dignity, feelings, and self-respect: Code, s. 37(2)(d)(iii).
d. I order MotiveWave to pay Mr. T post-judgment interest on this amount until paid in full, based on the rates set out in the Court Order Interest Act.
[101] Finally, I acknowledge again the difficult circumstances that the parties found themselves in this case. I wish each of them all the best.
Devyn Cousineau
Vice Chair