BC Human Rights Tribunal

Teacher D v. The School District and others, 2025 BCHRT 144

Date Issued: June 18, 2025
File: CS-005446

Indexed as: Teacher D v. The School District and others, 2025 BCHRT 144

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:

Teacher D
COMPLAINANT

AND:

The School District and the Superintendent and the Human Resources Manager and Principal L and Principal M and Teacher S and Teacher B
RESPONDENTS

REASONS FOR DECISION
APPLICATION TO LIMIT PUBLICATION
APPLICATION TO DISMISS A COMPLAINT
Sections 27(1)(c) and 27(1)(g)

Tribunal Member: Andrew Robb

On her own behalf: Teacher D

Counsel for the Respondents: Kristal M. Low and Eve C. Moore

I          INTRODUCTION

[1]               Teacher D is employed by the School District. She is of South Asian descent, and she identifies as a person of colour. She says that for many years she has faced discrimination on multiple grounds, especially her race, in her employment. She filed a human rights complaint alleging the School District and six of its employees discriminated against her in her employment. The Tribunal accepted the complaint on the grounds of her race, colour, ancestry, place of origin, sex, and religion.

[2]               The respondents deny discriminating. They say they treated Teacher D fairly, in accordance with the School District’s policies and the collective agreement between the School District and Teacher D’s union. The respondents say there is a reasonable, non-discriminatory explanation for all the incidents that Teacher D says were discriminatory.

[3]               The respondents apply to dismiss the complaint without a hearing. They say the complaint should be dismissed, in its entirety, because Teacher D has no reasonable prospect of proving the incidents described in her complaint had an adverse impact on her employment, which was connected to her protected characteristics (i.e. her race, colour, ancestry, place of origin, sex, and religion). They say her allegations are based on speculation and conjecture, and they are reasonably certain to establish a non-discriminatory explanation for the incidents described in her allegations. In the alternative, they say some parts of the complaint should be dismissed because they were late filed, and the Tribunal should not exercise its discretion to accept those parts of the complaint. They also say the complaint should be dismissed against the individual respondents, because those respondents were acting in the normal course of their employment during the incidents described in the complaint, and the School District has taken responsibility for their actions, so it would not further the purposes of the Human Rights Code to proceed with the complaint against them.

[4]               Teacher D applies to anonymise her identity, and limit publication of information that would identify her. The respondents do not oppose this application, and request that their identities should also be anonymised.

[5]               For the reasons set out below, I allow the parties’ requests to limit publication of information that could identify them. I also allow the application to dismiss, and I dismiss the complaint. I dismiss one allegation in the complaint because it was late filed, and I am not persuaded that I should use my discretion to accept it. I dismiss the remaining allegations because I find they have no reasonable prospect of success. Whether I consider Teacher D’s allegations separately, as individual instances of discrimination, or cumulatively, as alleging a poisoned workplace based on multiple incidents of discriminatory conduct, I come to the same conclusion: there is no reasonable prospect that Teacher D will establish that her race, or her other protected characteristics, were a factor in the respondents’ conduct, or in the impact that conduct had on her.

[6]               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.

II       BACKGROUND

[7]               The School District operates two schools where Teacher D worked, at different times. She worked at School 1 until 2019, when she was transferred to School 2.

[8]               The individual respondents were employees of the School District during the events described in Teacher D’s complaint:

·       The Superintendent was Superintendent of the School District.

·       The Human Resources Manager, or HR Manager, was a manager of human resources for the School District.

·       Principal M was principal of School 1 while Teacher D worked there.

·       Principal L was principal of School 2 for part of the time Teacher D worked there.

·       Teacher S and Teacher B were both teachers at School 2 while Teacher D worked there.

[9]               Teacher D’s human rights complaint included a lengthy, detailed account of her experience at the School District, focusing on specific incidents which she says were discriminatory. Based on the information in her complaint, I have sorted these incidents into distinct allegations or sets of allegations. The following sections of this decision summarise the information provided by the parties about each set of allegations in Teacher D’s complaint.

A.    Transcript Allegation

[10]           Teacher D’s human rights complaint says that in the summer of 2012, she was required to complete a course in order to return to teaching the following school term. She successfully completed the course shortly before the term started, but she says the HR Manager delayed her return to teaching by insisting on receiving a mailed transcript certifying completion of the course, instead of accepting an email version, or calling the course-provider to confirm she completed the course. Teacher D says her union’s president, GC, asked the HR Manager to call the course-provider, but he refused. The transcript arrived by mail three days after the beginning of the school term, and Teacher D was unable to work for those three days.

[11]           In the HR Manager’s sworn statement in support of the application to dismiss, he says he has no knowledge of this incident. He says the Ministry of Education is responsible for teachers’ certification, and it would not be standard procedure for the School District to request documentation from a third party related to a teacher’s certification.

[12]           In response to the application to dismiss, Teacher D says the BC College of Teachers imposed the certification requirement, but the HR Manager insisted on receiving the transcript to confirm she obtained the certification. Teacher D’s response submission includes a written statement, apparently made by GC, saying the incident happened in 2011, not 2012. The statement says GC was in contact with the HR Manager that summer, and he said Teacher D would not be allowed to return to teaching until she completed the course, and he refused to accept a transcript except by mail, and refused to call the course-provider. According to the written statement, the HR Manager said, “people like her should know better”, and GC was concerned that this was a reference to women of colour or immigrants. The statement says GC was shocked that the HR Manager withheld work from Teacher D just because the transcript had not yet been received.

B.     School 1 Allegations

[13]           Teacher D’s next allegation is from January 2018, while Teacher D was working at School 1, and involved an incident between Teacher D and Principal M. Teacher D says she went to Principal M’s office for a meeting, and he raised his voice at her and verbally attacked her, in front of a vice-principal.

[14]           The respondents say that in this incident, Teacher D interrupted a meeting between Principal M and another staff member, AH. The respondents say Teacher D was upset about a decision made by AH, and she was physically aggressive toward AH. In his sworn statement in support of the application to dismiss, Principal M says he had planned to meet with Teacher D after meeting with AH. But when AH left, Teacher D remained agitated, so Principal M said their meeting should be postponed to the next business day. Principal M says he then politely asked Teacher D to leave his office multiple times, and she refused, before he raised his voice at her and demanded she leave. The respondents provided Principal M’s contemporaneous notes of the incident, and they are consistent with his sworn statement.

[15]           Teacher D submitted a harassment complaint to the Superintendent about this incident. The complaint said Principal M harassed her by raising his voice. The HR Manager investigated the complaint on behalf of the School District. His investigation report found that Teacher D’s behaviour was aggressive and verbally threatening. The report accepted that Principal M raised his voice at Teacher D, but found this did not constitute harassment in the circumstances. The report noted that Principal M had apologised to Teacher D for raising his voice, and said this was the appropriate resolution to the incident. The HR Manager recommended that Principal M and Teacher D should not have further direct communications, except in urgent situations, “until the relationship mends itself.”

[16]           Teacher D says the HR Manager’s investigation was dismissive of her concerns about this incident. She says the HR Manager told her that if she could not get along with Principal M, the HR Manager would transfer her to a different school.

[17]           Teacher D’s complaint says that in February 2019, Principal M complained to human resources about her, after she claimed that he was targeting her for poor treatment. She says that because of this incident, the HR Manager decided to transfer her, against her will, to School 2. Teacher D says this was unfair to her, and reflected racism by the HR Manager and the School District.

[18]           The respondents say that in this incident, Principal M discovered that Teacher D had authorised a student event, without notifying school administrators. Principal M sent her an email, asking her to notify administrators about any future student events, and she responded aggressively. Principal M provided a copy of his email correspondence with Teacher D on February 5, 2019. It shows that his email was brief, and explained why school administrators needed to be notified of student events. In response, Teacher D said the event had been authorised by a different teacher, not Teacher D. She accused Principal M of targeting her, and said she was “fed up of your continuous unwarranted accusations”. The email also said Principal M should let the HR Manager know about the incident. Principal M says he reported it to the HR Manager because Teacher D asked him to.

[19]           The HR Manager placed Teacher D on leave starting February 6, 2019, immediately after this incident. The respondents say this was because her email to Principal M, on February 5, alleged that Principal M was creating an unhealthy workplace for her, and the School District had a duty to reduce any risk to her health. Teacher D disputes that the decision to suspend her was based on concerns about her health. She says it shows she was targeted for poor treatment.

[20]           The HR Manager investigated the incident and submitted a report to the Superintendent. The report referred to Teacher D’s difficult relationship with Principal M and other concerns about her work, and concluded that School 1 was an unhealthy workplace for her, mostly because of her own behaviour and her own communications with others. The report said she lashes out when she feels questioned, and this has created a difficult and stressful environment for herself and others. The HR Manager suggested that the only way to give her a healthy work environment was to transfer her to a different school.

[21]           Shortly after receiving the report, the School District decided to transfer Teacher D. She then went on sick leave for the remainder of the school year. She returned to work in September 2019, at School 2.

[22]           Teacher D’s union filed a grievance about the transfer, but later withdrew the grievance. Teacher D also filed a complaint to WorkSafeBC about harassment by Principal M, but WorkSafeBC dismissed the complaint, finding there was no objective evidence that anyone acted in a way that could be considered bullying or harassment.

C.     2020 Department Head Allegation

[23]           When she first started teaching at School 2, Teacher D taught business courses. At that time, these courses were offered through School 2’s computers department. Teacher D says the computers department consisted of five white male teachers, in addition to herself, and they excluded her from activities, did not support her work, and were sometimes rude to her.

[24]           In June 2020, Teacher D applied to become the head of the computers department, for the following school year. She had previously been a department head at School 1. She says department heads are considered part of a school’s leadership team, and are paid more than other teachers. Teacher D says School 2’s leadership team was not diverse, and consisted entirely of white people.

[25]           The respondents say department heads act as liaisons between school leadership and teaching staff in their departments. At School 2, department heads are selected annually from the teachers in each department. Even if a teacher was a department head in the previous year, they must reapply annually to remain in the position.

[26]           At the interview for the department head position in June 2020, Teacher D says the principal of School 2 at the time, BM, asked her how she would teach students about issues related to Black Lives Matter. She says she was the only candidate who was a person of colour, and other candidates for the position were not asked this question. The respondents deny this. They say each candidate was asked the same set list of questions, with occasional follow-up questions based on their answers to the set questions. BM made a sworn statement, in support of the application to dismiss, denying that he asked Teacher D about Black Lives Matter, and denying that she was asked any questions that other candidates were not asked. The parties did not provide any contemporaneous notes from the interview.

[27]           Teacher D did not get the department head position. The position went to another teacher, RG, who had been head of the computers department for the previous 13 consecutive years. Teacher D says BM told her he decided to give the position to RG because she was too new to the school. In his sworn statement, BM says the decision was based on RG’s qualifications, experience, understanding of the department, and his answers to the interview questions.

D.    Early 2021 Allegations

[28]           Teacher D’s complaint refers to a number of incidents that happened between January and June 2021, each of which involved some reference or connection to her race or her anti-racism work. She says these incidents, along with other allegations in the complaint, contributed to a poisoned workplace, where racism went unaddressed by School District management.

[29]           In the first incident, Teacher D says that an online staff meeting, in January 2021, addressed issues related to anti-racism. She says staff were separated into virtual breakout groups to discuss these issues further. She says she was the only person of colour in her breakout group, and a white staff member in the group committed a microaggression when they talked about reverse racism by people of colour. Teacher D says School 2 administration did not take any steps to address this.

[30]           By this time, BM had left School 2, and Principal L was principal. Principal L says the staff meeting in question was actually in February 2021, not January. He was not present in the breakout room with Teacher D, but he says Teacher D and two other staff who were there reported the incident to him. Teacher D says Principal L refused her request for support to address this incident, and told her not to discuss it with other staff. Principal L denies this; he says he did not dismiss Teacher D’s concerns, but he understood the concerns had been resolved between the staff who were involved in the incident. He says Teacher D did not ask him to take any specific steps regarding this incident, and no one submitted a formal complaint about it, so he did not take any action. The parties did not provide any contemporaneous evidence about the communications between Teacher D and Principal L about this incident.

[31]           Another incident occurred in February 2021, during a school-sponsored “diversity week” event. Teacher D says that as part of diversity week, School 2 asked students to wear black t-shirts one day, apparently to raise awareness about racism and Black Lives Matter. Teacher D opposed this. She said it was performative and offensive, and a lack of clarity about the symbolism led to antagonism towards the topic of anti-racism. But she says her opinion was ignored, and the event proceeded. She says this was an example of how she was silenced in relation to issues of race.

[32]           The respondents say Principal L considered Teacher D’s concerns, and decided that instead of canceling black t-shirt day, the students who suggested the event should be asked to provide more information to the school community about the symbolism and intention of the event, and they did so. In the materials before me, Teacher D does not deny that black t-shirt day was suggested by students, or that the students who suggested the event shared information about the symbolism, after she expressed her concerns.

[33]           The next incident described in Teacher D’s complaint occurred at a meeting of School 2’s anti-racism committee. Teacher D was a member of the committee, as were Teacher B and Principal L. Teacher D says that during a committee meeting, Teacher B, who is white, became angry at Teacher D for using the term “white privilege”. Teacher D says that in a meeting with Principal L, shortly after this incident, he told her not to use terms like white privilege because other staff were not as educated as her about anti-racism, and may be offended by it.

[34]           Teacher D’s human rights complaint says this meeting happened in February 2021, but the respondents say it was actually in March 2021. The respondents say that during the meeting, Teacher D repeatedly interrupted speakers, Teacher B asked her to let a speaker finish before interrupting, and Teacher D then accused Teacher B of white privilege, and said Teacher B had previously been racist towards her. Principal L was taking minutes at the meeting. The minutes show that Teacher D and Teacher B had a heated discussion, with Teacher B demanding to know what Teacher D was accusing her of, before Teacher B abruptly left the meeting, and went to a nearby classroom space. Teacher D does not appear to deny this account of the meeting, including the fact that it happened in March 2021, not February.

[35]           Principal L says he met with Teacher D after this incident, and he told her that using the term “white supremacy” could be off-putting to some staff and could shut down conversations before they begin. He denies telling her not to use other terms, like white privilege or systemic racism.

[36]           The respondents say Teacher D and Teacher B later attended a form of mediation, and Principal L believed that the mediation resolved the dispute between them. Principal L provided an email from Teacher D, dated April 20, 2021, where she said positive things about the mediation, and said both she and Teacher B were committed to the anti-racism committee going forward.

[37]           Teacher D’s complaint describes another incident that took place around April 2021. She says she sent messages to other School 2 staff about holidays and celebrations from different cultures and religions. She says some staff responded with hostility, and school administrators asked her not to send similar messages in the future.

[38]           Principal L denies Teacher D’s version of events. He says he was supportive of Teacher D’s emails to other staff about different cultures and religions, and he denies that any school administrators asked her to stop sending them. He says Teacher D told him she had received some negative responses to the messages, but she also told him she had dealt with those responses, and she did not request any support from him.

[39]           Principal L provided his email correspondence with Teacher D from April 2021. It shows that Teacher D sent him a draft version of at least one of her messages about different cultures and religions, and asked for his approval before sending it to other staff, but the evidence before me does not show whether he responded. The email correspondence also shows that after sending a different message, Teacher D informed Principal L that she received questions from staff asking why her messages did not refer to Christian and Jewish holidays, and she responded to those messages. Her message said she hoped the anti-racism committee could respond to such emails in the future. Again, it is not clear whether Principal L responded.

[40]           Another incident took place in May 2021. Teacher D says she gave a presentation about anti-racism, along with two external presenters, in an online meeting with about 120 School 2 staff, most of whom joined the meeting from their respective classrooms. Teacher D says the meeting was continuously interrupted by a staff appreciation event that was happening at the same time. The event involved one staff member knocking on over 25 other staff members’ doors and giving them flowers for their birthdays or to commemorate other special events. This led to online comments and photographs, unrelated to the content of Teacher D’s presentation, being posted online in the meeting chat. Teacher D says this was distracting and disruptive, and disrespectful to herself and the external presenters. She says Principal L, who was at the meeting, should have stopped the staff appreciation event.

[41]           In Principal L’s sworn statement, he said he did not know of the event in advance, and when he saw that it was interrupting the meeting, he asked for it to be stopped, and he apologised to the presenters for the interruptions. He says Teacher D never brought it up with him again. Teacher D denies that Principal L tried to stop the staff appreciation event. She says Principal L himself participated in the event, during the anti-racism presentation. She provided a photo from the meeting chat, which apparently shows Principal L receiving a flower, during the meeting.

[42]           Principal L provided copies of his online messages with Teacher D during the meeting, in which she asks him to stop the posting of photos related to the staff appreciation event, during the anti-racism presentation, and he apologises and says he “got to that late”. Principal L also provided his online messages with other School 2 administrators during the meeting, where they acknowledge the poor timing of the staff appreciation event. Based on the message transcripts provided by Principal L, it appears some administrators tried to stop the staff appreciation event from continuing during Teacher D’s presentation, but the event continued despite their efforts.

[43]           The final incident from early 2021 involved Teacher D’s questions about the creation of a new position at School 2 for a Social Justice Department Head (the respondents also refer to this position as a department head for equity, diversity, and inclusion). Teacher D says Principal L and the School District refused to create such a position, despite her requests. She says other schools in the School District had such a position, and she was qualified to do it, but her requests for a Social Justice Department Head to be appointed at School 2, were delayed and dismissed.

[44]           The School District says that during the events described in Teacher D’s complaint, the School District was piloting a Social Justice Department Head position at another school, but had not yet decided whether to create a similar position at School 2. Principal L says he shared this information with Teacher D, when she asked about the position. He denies refusing Teacher D’s request to create such a position. The School District says School 2 did appoint a Social Justice Department Head, starting in the 2022-2023 school year. Teacher D does not deny this.

E.     2021 Department Head Allegation

[45]           In June 2021, Teacher D applied again to be a department head. At that time she was teaching courses in both the computers and career education departments, and she applied to be head of both departments.

[46]           Teacher D says the 2021 department head postings included responsibilities related to equity, diversity, and anti-racism, yet when she, a person of colour, applied for the positions, Principal L responded with hostility. She says he had not intended to do interviews for the positions, and he became angry when she told him he would have to interview her. Principal L says that since this was his first year as principal at School 2, he did not realise department heads were reappointed annually until Teacher D and other teachers pointed this out to him. But he denies that he responded to Teacher D with hostility upon learning that he had to interview her and other candidates for the department head positions.

[47]           Once again, RG and Teacher D both applied to be head of the computers department, and RG got the position. Teacher D did not get the careers department head position either. That position went to Teacher S, who had been head of the careers department for three consecutive years prior to 2021.

[48]           Teacher D asked for Principal L’s feedback about why she was not appointed as head of a department. She says he told her she was negative, her answers to questions were not articulate, she had not shown leadership, and she needed to build relationships. Teacher D says the suggestion that she was not articulate seemed to be related to her accent, and indicates discrimination based on her race and place of origin. She says the suggestion that she needed to build relationships reflected a backlash to her anti-racism efforts.

[49]           Principal L denies saying her answers were not articulate; he says he told her she had not articulated a clear vision for the departments she wanted to head. He says he clearly understood the words she used, and he did not perceive any communication barriers with her. He denies that her accent was a factor in the decision not to appoint her as a department head. He says her answers at the interview were negative in that she was critical about RG, and did not set out her own goals and objectives for the departments she wanted to head.

F.      Harassment and Transfer Allegations

[50]           In August 2021, Teacher S submitted a harassment complaint against Teacher D to the School District. The complaint alleged that Teacher D harassed Teacher S by saying Teacher S received special treatment from School 2 administrators, and by making false accusations about Teacher S, after Teacher S was reappointed as head of the careers department. Teacher D then submitted harassment complaints against RG and Teacher B. The respondents say Teacher D was initially told about the harassment complaint against her, but not who had complained, and it appears she assumed it was RG and Teacher B. Later, when Teacher D found out Teacher S had submitted the complaint, she submitted a complaint against Teacher S.

[51]           Teacher D’s harassment complaint about RG said RG did not welcome her in the computers department when she joined School 2 in 2019, and he did not include her in department activities and processes or communicate with her effectively. She also made allegations about his conduct in an online meeting, and said that on one occasion he looked through her things in her classroom. Teacher D’s harassment complaint about Teacher B referred to the incident in the anti-racism committee meeting in March 2021, and other incidents. Teacher D’s harassment complaint about Teacher S made numerous allegations about microaggressions and intimidation in their professional relationship.

[52]           Teacher D says she was put on leave as a result of Teacher S’s complaint against her, while the staff she complained about were not put on leave. She says this indicates that she was targeted for her anti-racism efforts. The HR Manager says he decided to put Teacher D on leave because Teacher S and Teacher B had expressed fear of working with Teacher D, and their concerns were shared by RG and Principal L, so removing Teacher D from the workplace was the least disruptive option to the school, compared to removing the multiple staff that Teacher D had complained about. The HR Manager says the School District was also concerned about retaliatory conduct by Teacher D, based on her filing a complaint against Teacher S only after she found out Teacher S had complained about her.

[53]           The School District hired an external lawyer to investigate the harassment complaints by and against Teacher D. The lawyer interviewed all the parties to the complaints, and other witnesses, and ultimately found all the complaints were unsubstantiated. They also found Teacher D’s complaints were speculative, frivolous, and vexatious, and were retaliation for the decision not to appoint her as a department head. After the School District received the report, Teacher D was transferred out of School 2, to an on-call teaching position. The respondents say this was because the relationships between Teacher D and other School 2 staff had irreparably broken down.

[54]           Teacher D’s union grieved the decision to transfer her out of School 2, but later withdrew the grievance. Teacher D returned to teaching with the School District, but not at School 2.

III     DECISION

A.    Application to limit publication

[55]           Complaints at the Tribunal are presumptively public: Mother A obo Child B v. School District C, 2015 BCHRT 64 at para. 7. This openness serves four main goals: maintaining an effective evidentiary process, ensuring that Tribunal members act fairly, promoting public confidence in the Tribunal, and educating the public about the Tribunal’s process and development of the law: Edmonton Journal v. Alberta (Attorney General), [1989] 2 SCR 1326 at para. 61; JY v. Various Waxing Salons, 2019 BCHRT 106 at para. 25. These goals align with the purposes of the Code, which include fostering a more equitable society and identifying and eliminating persistent patterns of inequality: Code, s. 3. The main way that the Tribunal furthers these purposes is through its public decisions: A and B v. Famous Players Films and C, 2005 BCHRT 432 at para. 14.

[56]           The Tribunal has discretion to limit publication of identifying information where a person can show their privacy interests outweigh the public interest in full access to the Tribunal’s proceedings: Tribunal Rules of Practice and Procedure, Rule 5(6); Stein v. British Columbia (Human Rights Tribunal), 2020 BCSC 70 at para. 64(a). The Tribunal may consider factors like the stage of the proceedings, the nature of the allegations, private detail in the complaint, harm to reputation, or any other potential harm: JY at para. 30. It may also consider whether the proposed limitation relates to only a “sliver” of information that minimally impairs the openness of the proceeding: C.S. v. British Columbia (Workers’ Compensation Appeal Tribunal), 2019 BCCA 406 at para. 37.

[57]           Teacher D seeks to limit publication of any information that would identify her, or her witnesses who provided information in support of her response to the application to dismiss. She says she is concerned about the sensitive matters described in her complaint becoming public knowledge, as it could affect her relationship with her students and her own mental health. She says that in one of the courses she teaches, her students read decisions by the Tribunal, so it is likely that if her name is not anonymised, her students could become aware of her complaint. She also says some of her witnesses are students who were minors at the time of the events described in the complaint, and their confidentiality should be respected.

[58]           The respondents do not deny that Teacher D teaches a course in which her students sometimes read decisions by the Tribunal. The respondents do not oppose anonymization of Teacher D’s identity, as long as their identities are also anonymised.

[59]           It will be evident by now that I have decided to anonymise the parties’ identities. In the circumstances of this case, especially considering that Teacher D teaches a course where her students read Tribunal decisions, I find the public interest in knowing Teacher D’s identity is outweighed by the risk that publication of her identity could affect her relationship with her students.

[60]           I agree with the respondents’ submission that in order to effectively anonymise Teacher D, it is necessary to anonymise the respondents too. Considering the detailed information about Teacher D’s interactions with the respondents set out in this decision, it would not be difficult for an interested person to determine Teacher D’s identity, if they knew the respondents’ identities.

[61]           I order that the Tribunal will not publish or make available to the public any information that could identify the parties to this complaint, in connection with the complaint.

B.     Scope of complaint

[62]           There is an issue about the scope of the complaint. In their reply submission, the respondents say Teacher D has improperly added new allegations in her response to the application to dismiss. The respondents refer to 42 statements in Teacher D’s response submission, which the respondents say are new allegations that were not in her complaint. The respondents say the Tribunal should not consider these statements.

[63]           A complainant who wants to amend their complaint during an outstanding application to dismiss must apply to do so: Rule 24(4)(b). The purpose of this rule is to ensure that a respondent who files an application to dismiss a complaint does not face a moving target: Pausch v. School District No. 34 and others, 2008 BCHRT 154 at paras. 28-29. Respondents are entitled to know the allegations against them to assess whether, or on what basis, to bring their application to dismiss the complaint: Purdy v. Douglas College and others, 2016 BCHRT 117 at paras. 35-37.

[64]           At the same time, the Tribunal’s complaint forms are not the equivalent of pleadings in a civil litigation process: White v. Nanaimo Daily News Group Inc. and Klaholz, 2004 BCHRT 350 at para. 23. It is not uncommon, or a violation of the Rules, for a complainant to add new details, or particulars of their complaint, in response to an application to dismiss.

[65]           The Tribunal described the distinction between details and new allegations at para. 20 of Powell v. Morton and others (No.2), 2005 BCHRT 282:

I must consider whether the amendment contains, on the one hand, further details of the facts on which the complainant intends to rely, or whether, on the other, it constitutes an expansion of the allegations made against the respondents. If the former, it will constitute particulars; if the latter, an amendment. This determination is not to be made in a narrow or technical way, but in a manner which will ensure that the parties are accorded procedural fairness, and that particulars are not used to expand a complaint beyond what can reasonably be said to have been alleged in it. Another way of looking at the questions is to ask whether the materials in issue come within the scope of the complaint filed with the Tribunal, or whether they seek to expand the scope of the complaint.

[66]           I now turn to the statements in the response to the application to dismiss that can be characterised as new allegations, not details or particulars of the allegations in the complaint. I will not specifically address all 42 of the statements referred to by the respondents. In the following paragraphs I will list all the statements identified by the respondents that I find are new allegations, and are not in the scope of the complaint. The remaining statements referred to by the respondents are closely related to allegations in the complaint and are properly characterised as details or particulars of those allegations.

[67]           Teacher D says the external investigation into the 2021 harassment complaints by and about her was biased and discriminatory. I find her claims about the investigation are not in the scope of the complaint. The investigation was not concluded until after the complaint was filed. Although the investigation was related to the 2021 Department Head Allegation and the Harassment and Transfer Allegations, those allegations do not refer to the investigation. I find Teacher D’s claims about the investigation being discriminatory amount to a separate, new allegation.

[68]           Teacher D’s allegations about the respondents’ failure to accommodate her medical needs are outside the scope of the complaint. Teacher D’s complaint did not indicate that she faced discrimination on the ground of her disability. The Tribunal accepted the complaint as alleging discrimination on multiple grounds, but not disability.

[69]           Teacher D’s claims that Principal M and the HR Manager ignored or dismissed Teacher D’s 2018 concerns about a confederate flag brought to school by students, and that Principal M failed to address racist remarks by a student in 2018, are not in the scope of the complaint. None of these incidents were referred to in the complaint, which refers to discriminatory conduct by School District staff, not by students. Teacher D does not explain how these incidents were related to the School 1 Allegations, or any allegations in the complaint. I find they are new allegations.

[70]           Teacher D’s claim that Teacher B continued to make discriminatory statements after the anti-racism committee meeting when Teacher D and Teacher B had a heated discussion, and Teacher D’s claim that Teacher B made an overtly racist statement about students, are not in the scope of the complaint. Teacher D does not provide any context for these alleged statements, including when or in what circumstances they were made. The complaint does not refer to these statements, or to any conduct by Teacher B, after the anti-racism committee meeting in March 2021. It is not clear how these allegations relate to the allegations in the complaint. I find they are new allegations.

[71]           I find some of the statements identified by the respondents are outside the scope of the complaint because there are no references to them in the complaint, and it is not clear how they are connected to the allegations in the complaint. These include:

a.    Teacher D’s claim about the Superintendent accusing her of hacking into a School District network.

b.   Teacher D’s claim that the HR Manager treated her differently than a white teacher by allocating less time for mandatory training for an e-commerce course.

c.    Teacher D’s claim that the HR Manager gave her a negative reference, in 2019, which prevented her from getting a different job.

d.   Teacher D’s claim that the HR Manager gave her a “golden handshake” offer if she agreed to leave the School District permanently.

e.    Teacher D’s claim that the HR Manager and another School District employee taunted and distracted her during a professional development event in 2016.

f.     Teacher D’s claims that the Superintendent dismissed her suggestion to create a business academy in the School District, and that he excluded her from a business educators’ forum.

g.    Teacher D’s claims about her interactions with Principal M and Teacher S when she ran into them, apparently by coincidence, at fitness classes in 2023 and 2024, respectively.

h.   Teacher D’s claim that Teacher S suggested Teacher D had PTSD and spoke negatively about her.

i.      Teacher D’s claims about a former principal of School 2 who wore blackface, years before Teacher D worked there.

j.      Teacher D’s claims that Teacher S made comments excusing the principal who wore blackface, and questioned whether an Indigenous colleague was genuinely Indigenous.

k.    Teacher D’s claim that Principal L assigned Teacher S to a desirable classroom space, and assigned a different teacher, who was responsible for international students, to a less desirable space.

l.      Teacher D’s claim that BM asked her about whether a “clique of white women” at School 2 liked him.

[72]           I find all of these are new allegations, not particulars or details of the allegations in the complaint. As noted above, the remaining statements listed by the respondents, that I have not included in the previous paragraphs, are details of the allegations in the complaint. Where they are relevant to my decisions under s. 27(1) of the Code, I refer to them below.

[73]           Teacher D did not apply to amend her complaint to include the new allegations. Nevertheless, the Tribunal may allow an amendment under Rule 24(4)(b) if it would be procedurally fair to do so, and further the purposes of the Code: Hawknes v. Vancouver Public Library (No. 2), 2017 BCHRT 250 at para. 86. In this case, however, I find that doing so would not be fair to the respondents. The respondents have not responded to or provided evidence in relation to the new allegations. Many of the new allegations lack context, and in some cases it is not clear how they are connected to Teacher D’s protected characteristics, so it would be difficult for the respondents to respond to them even if they had an opportunity to do so.

[74]           Some of the new allegations mirror allegations made in Teacher D’s harassment complaints, in 2021, which led to her transfer out of School 2. While some of the respondents may have had notice of those allegations before Teacher D filed her response to the application to dismiss, they had no way to know Teacher D would rely on these allegations in her human rights complaint. The human rights complaint was lengthy and detailed, and was filed after Teacher D made the harassment complaints, so she had an opportunity to include the allegations from her harassment complaints in her human rights complaint. But she did not include the new allegations in her human rights complaint, and she has not explained why she did not raise them, in the Tribunal’s process, until she filed her response to the application to dismiss. In these circumstances, I find it would not be procedurally fair to allow an amendment to her complaint, to include the new allegations, nor would it facilitate the just and timely resolution of the complaint.

C.     Section 27(1)(g) – Timeliness of complaint

[75]           Under s. 22 of the Code, there is a one-year time limit for filing a human rights complaint. Section 22 is meant to ensure that complainants pursue their human rights remedies promptly so that respondents can go ahead with their activities without the possibility of a dated complaint: Chartier v. School District No. 62, 2003 BCHRT 39 at para. 12. Section 27(1)(g) of the Code allows the Tribunal to dismiss part of a complaint where the contravention alleged in that part of the complaint occurred more than one year before the complaint was filed, unless that part of the complaint is accepted under s. 22(3).

[76]           Teacher D’s human rights complaint was filed November 1, 2021. The respondents argue that some of Teacher D’s allegations about events before November 1, 2020, are late filed and should be dismissed under s. 27(1)(g) of the Code. Specifically, the respondents apply to dismiss the Transcript Allegation and the School 1 Allegations, under s. 27(1)(g).

[77]           I find it more efficient to address the School 1 Allegations under s. 27(1)(c). In this section, I only address the Transcript Allegation.

[78]           I must decide two issues: (1) whether the Transcript Allegation is late filed, and (2) if so, whether to exercise my discretion to accept the allegation because it is in the public interest to do so and there is no substantial prejudice to any person because of the delay: Code, s. 22(3); School District v. Parent obo the Child, 2018 BCCA 136 at para. 68.

a.     The Transcript Allegation was late filed

[79]           A complaint is filed in time if the last allegation of discrimination happened within one year, and older allegations are part of a “continuing contravention”: Code, s. 22(2); School District at para. 68. A continuing contravention is “a succession or repetition of separate acts of discrimination of the same character” that could be considered separate contraventions of the Code, and “not merely one act of discrimination which may have continuing effects or consequences”: Chen v. Surrey (City), 2015 BCCA 57 at para. 23; School District at para. 50. If the Transcript Allegation is part of a continuing contravention of the Code, along with allegations from less than one year before the complaint was filed, then it was not late filed.

[80]           The assessment of whether discrete allegations are part of a continuing contravention is a “fact specific one which will depend very much on the individual circumstances of each case”: Dickson v. Vancouver Island Human Rights Coalition, 2005 BCHRT 209 at para. 17. A relevant consideration is whether there are significant gaps between the allegations: Dickson at paras. 16-17. Whether or not a gap is significant will be assessed contextually, considering the length itself and any explanations for the gap: Reynolds v Overwaitea Food Group, 2013 BCHRT 67, at para. 28. A significant, unexplained, gap in time will weigh against finding a continuing contravention: Bjorklund v. BC Ministry of Public Safety and Solicitor General, 2018 BCHRT 204 at para. 14.

[81]           The respondents do not offer any submissions about the continuing contravention issue, except a brief statement in their reply submission saying the Transcript Allegation is unrelated to any other allegation in the complaint.

[82]           Teacher D says all the incidents described in her complaint represent a pattern of structural racism, especially by the HR Manager. In her response to the application to dismiss, she says all these incidents demonstrate that the School District failed to take her complaints about racism seriously, and failed to address systemic racism by its employees.

[83]           I accept that the Transcript Allegation has at least one element in common with some of Teacher D’s later allegations, namely that it alleges a decision by the HR Manager that resulted in Teacher D being removed from teaching for periods of time. This element was also present in the School 1 Allegations, and in the Harassment and Transfer Allegations. All these allegations suggest the HR Manager decided to suspend Teacher D from teaching, for reasons related to her protected characteristics.

[84]           But even if the Transcript Allegation has some similarities to Teacher D’s later allegations, Teacher D has not explained how the Transcript Allegation can be seen as part of a continuing contravention, considering the long gap in time between the Transcript Allegation and the later allegations. In light of this gap, I find the Transcript Allegation is not part of a continuing contravention, so it is late filed.

b.     Discretion to accept late filed part of complaint

[85]           Because the Transcript Allegation was late filed, I now consider whether to accept it under s. 22(3) of the Code. The burden is on Teacher D to persuade the Tribunal to accept the late filed part of the complaint, considering whether it is in the public interest to accept it, and whether doing so would cause substantial prejudice to any person.

[86]           The Tribunal assesses the public interest in a late filed complaint in light of the purposes of the Code. These include identifying and eliminating persistent patterns of inequality, and providing a remedy for persons who are discriminated against: s. 3. It may consider factors like the length of the delay, the reasons for the delay, the complainant’s interest in accessing the Tribunal, the respondent’s interest in being able to continue its activities without worrying about stale complaints, whether the complainant got legal advice, and the public interest in the complaint itself: British Columbia (Ministry of Public Safety and Solicitor General) v. Mzite, 2014 BCCA 220 at para. 53 and 63; Hoang v. Warnaco and Johns, 2007 BCHRT 24; Complainant v. The Board of Education of School District No. 61 (Greater Victoria), 2022 BCHRT 44 at para. 18. These are important factors, but they are not necessarily determinative and not every factor will be relevant in every case: Goddard v. Dixon, 2012 BCSC 161 at para. 152.

[87]           In her complaint, Teacher D says she did not file a complaint sooner because she feared being disciplined, and she was experiencing trauma and health problems, as well as bereavement and anxiety, which made it hard for her to find the strength to file a complaint. In response to the application to dismiss, she says she did not immediately recognise the respondents’ conduct was due to racism, and she felt afraid to speak up. She says it was only in therapy that she was able to piece together the events described in her complaint in a way that made it possible for her to act. She provided notes from her doctors and counselors, dated between 2019 and 2023, but they do not specifically address why she could not have filed a complaint sooner, and they do not suggest she had health conditions that prevented her from filing a complaint before 2019.

[88]           The respondents say that even if Teacher D feared reprisal for filing a human rights complaint, this is generally not sufficient to justify accepting a late complaint, especially in light of the protections set out at s. 43 of the Code: Shen v. ToursByLocals Canada Inc. and another, 2024 BCHRT 31 at paras. 41-42. Teacher D has not explained any exceptional circumstances that would justify it in this case.

[89]           Teacher D says it is in the public interest to proceed with all her allegations because systemic racism must be taken seriously, and the Tribunal should send a message that the type of behaviour alleged in her complaint is unacceptable. But her submissions on this issue do not refer to the Transcript Allegation. Nor has she suggested the Transcript Allegation is novel or unique. For these reasons I am not satisfied that it is in the public interest to accept the Transcript Allegation. The main factor I consider is the length of the delay—it was at least nine years between the incidents described in the Transcript Allegation and the date when Teacher D’s complaint was filed. I find this long delay outweighs Teacher D’s explanations for why it would be in the public interest to accept all her allegations.

[90]           In light of my finding about the public interest, it is unnecessary for me to consider whether accepting the Transcript Allegation would give rise to substantial prejudice.

[91]           I dismiss the Transcript Allegation under s. 27(1)(g) of the Code.

D.    Section 27(1)(c) – No reasonable prospect of success

[92]           The respondents apply to dismiss the complaint under s. 27(1)(c) of the Code, on the basis that it has no reasonable prospect of success. Section 27(1)(c) 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. The onus is on the respondents to establish the basis for dismissal.

[93]           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. 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.

[94]           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.

[95]           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.

[96]           To prove her complaint at a hearing, Teacher D will have to prove she has characteristics protected by the Code, she was adversely impacted in her employment as a result of the respondents’ conduct, and her protected characteristics were a factor in the adverse impact: Moore v. British Columbia (Education), 2012 SCC 61 at para. 33.

[97]           There is no question that Teacher D has characteristics protected by the Code. The respondents do not dispute that she is a South Asian woman, of Indian and Ugandan ancestry, of the Hindu and Sikh religions, and a person of colour, as she describes herself in her human rights complaint. But they say that some of the incidents described in the complaint had no adverse impact on her employment, and she has no reasonable prospect of proving a connection between any alleged adverse impact and her race, colour, ancestry, place of origin, sex, or religion.

[98]           The respondents also say Teacher D’s allegations omit important details, and considering their full context, the respondents are reasonably certain to establish non-discriminatory explanations for the incidents she describes. They say Teacher D has not offered any objective or reasonable basis for asserting that these incidents are connected to her protected characteristics. They cite Low v. British Columbia Nurses’ Union and Sostad, 2004 BCHRT 358 at para. 23, to the effect that allegations based on a complainant’s subjective belief that they experienced racism are not sufficient to raise the complaint beyond speculation and conjecture, even if the respondents are white and the complainant is not.

[99]           Although the respondents bear the burden in this application, Teacher D must show that the connection between her protected characteristics and any adverse impacts she experienced is based on more than speculation or conjecture. When determining the likelihood of Teacher D proving her case at a hearing, I consider that complainants often face difficulty in proving discrimination based on race, colour, and ancestry, because people seldom express biases, prejudices, and unconscious beliefs openly: Ochebiri v. Corrpro Canada, 2019 BCHRT 99 at para. 66; Batson-Dottin v. Forensic Psychiatric Hospital (No. 2), 2018 BCHRT 246 at para. 4. Typically, whether these characteristics are a factor in the adverse impact a complainant experienced “is gleaned from reasonable inferences drawn from all of the circumstances”: Ochebiri at para. 66. But despite the subtlety of racial prejudice, any inference of discrimination must be rooted in the evidence before the Tribunal: Campbell v. Vancouver Police Board (No. 4), 2019 BCHRT 275 at para. 104.

[100]       Teacher D says she experienced microaggressions and other incidents of hostility, connected to her protected characteristics, which were not addressed by School District management, and this created a poisoned, non-inclusive workplace. I understand her argument to be that these incidents, combined with the fact that she is a person of colour whereas the leadership teams at the School District and the schools where she worked were white, are sufficient to bring the connection between her protected characteristics and all the negative treatment described in her complaint, out of the realm of conjecture.

[101]       In the following sections of this decision I first consider Teacher D’s allegations individually, and I explain why I find she has no reasonable prospect of proving the incidents described in these allegations, on their own, were discriminatory. I then consider the evidence before me as a whole, and explain why she has no reasonable prospect of proving she experienced a poisoned workplace, and why she has not brought the connection between her protected characteristics and the way the respondents treated her, in general, out of the realm of conjecture.

a.     School 1 Allegations

[102]       I begin with the School 1 Allegations, which are mainly about Principal M and the HR Manager. The respondents dispute some of the details of Teacher D’s account of the incidents in these allegations, but there is no dispute that:

a.    In January 2018, when Teacher D went to Principal M’s office, she became upset, and Principal M raised his voice at her and demanded she leave;

b.   She complained to the School District, and the HR Manager investigated;

c.    Principal M apologised for raising his voice, and the HR Manager’s investigation found no further action was necessary;

d.   In February 2019, Principal M notified the School District about Teacher D’s response to his email; and

e.    In response to the February 2019 incident, the HR Manager decided to temporarily suspend Teacher D, and later transferred her out of School 1, against her will.

[103]       Teacher D suggests that Principal M raising his voice at her in 2018, and the HR Manager’s decision not to take action against Principal M for this, but to transfer her out of School 1, reflect racism and discrimination. As I understand her argument she says the response to Principal M’s complaint against her, in February 2019, shows the School District gave preferential treatment to Principal M, at her expense.

[104]       The respondents provided contemporaneous evidence supporting their position that Teacher D acted in an aggressive manner in the January 2018 incident. They also provided the parties’ email correspondence from February 2019, which supports their position that Teacher D reacted aggressively to a reasonable request from Principal M, and that Teacher D asked Principal M to report the incident to the HR Manager.

[105]       In Teacher D’s materials she does not appear to deny the version of events alleged by the respondents, or to dispute that she acted aggressively in each incident. She says School 1 and School District administrators were all white, but her complaint does not cite any other evidence that could support a finding that the respondents’ conduct, or the way they treated her, was connected to her protected characteristics.

[106]       I have considered Teacher D’s allegation, in the response to the application to dismiss, that Principal M was responsible for discrimination against students of colour, in allocating scholarships. The respondents provided evidence that in the incident described in the January 2018 Allegation, when Principal M was meeting with AH, AH had recently decided that Teacher D’s family member would not receive a scholarship, and this was the reason why Teacher D became upset. Teacher D does not deny this, in the materials before me. Her allegation about Principal M discriminating against students of colour appears to be about her own family member not getting a scholarship. She does not explain why she believes the reasons for this decision were discriminatory. Without any explanation for this, and considering all the evidence before me about the January 2018 incident, I am satisfied there is no reasonable prospect that Principal M’s involvement in allocating scholarships could support an inference that Teacher D’s race or other protected characteristics were a factor in his conduct.

[107]       I am also satisfied that Teacher D has no reasonable prospect of proving the incidents described in the School 1 Allegations, or their impact on her, were connected to her protected characteristics. On the evidence before me, I find the respondents are reasonably certain to prove they treated her no differently than they would have treated any other person, in the same situation. I understand Teacher D’s concern that transferring her out of School 1, to separate her from Principal M, was unfair to her, but she has not taken the connection between this unfairness and her protected characteristics beyond conjecture.

b.     2020 and 2021 Department Head Allegations

[108]       Teacher D says the decisions by School 2 administrators about her applications for department head positions at School 2 were discriminatory. She says she was the only person of colour who applied for the positions, and the leadership team at School 2 consisted entirely of white people. I understand her argument to be that the lack of diversity on School 2’s leadership team, considered in light of her evidence about being singled out based on her race at various times while she worked at School 2, is sufficient to bring the connection between her protected characteristics and the decisions about her department head applications, out of the realm of conjecture.

[109]       The respondents say Teacher D has no reasonable prospect of proving this connection. They say Teacher D was not selected as department head, in 2020 or 2021, because she lacked experience at School 2, she did not perform as well as other candidates in interviews for the positions, and she was not the most qualified candidate. There is no dispute that in each case, the successful candidate was the incumbent: RG had been head of the computers department for over a decade before 2020, and Teacher S had been head of the careers department for three years before 2021.

[110]       Teacher D says she was the only candidate for the computers department position to be asked about Black Lives Matter, in 2020. In light of the conflicting evidence about whether Teacher D was asked about Black Lives Matter, and in the absence of any contemporaneous records, I am not persuaded that Teacher D has no reasonable prospect of proving she was the only candidate who was asked about Black Lives Matter. But I must decide whether she has brought the 2020 Department Head Allegation beyond conjecture in light of all the evidence before me.

[111]       Even if Teacher D was the only candidate who was asked about Black Lives Matter, in 2020, that would not necessarily be sufficient to establish a connection between her protected characteristics and the decision not to appoint her as department head. Teacher D says this question shows she was treated differently from other candidates, but she does not suggest the question, or her response, was the reason why she did not get the position.

[112]       Teacher D’s complaint says most department heads at School 2 had been heads of their respective departments for many years, and this is evidence of favouritism and bias in the selection process. I do not accept this argument. It stands to reason that experience in the position was an asset for candidates reapplying for the position. There is no evidence before me that either RG or Teacher S were unsuccessful in their previous experience as department heads. Teacher D appears to question their performance as department heads, but her concerns are about her own relationships with them, and there is no evidence before me that anyone else shared these concerns. For these reasons, I find the respondents are reasonably certain to establish non-discriminatory reasons for appointing RG and Teacher S as department heads, and not Teacher D: their previous experience in the same position they were applying for made them the most qualified candidates for the positions.

[113]       Teacher D says Principal L’s feedback about why she was not appointed as head of a department, in 2021, supports her claim that she did not get the position for reasons related to her protected characteristics. She says Principal L faulted her for being negative and not building relationships, which she says was a reference to her efforts to combat racism in the school. She says his reference to her not being articulate was connected to her accent. Principal L says he had no issue with her accent, and he was using “articulate” as a verb, not an adjective, in telling Teacher D why she did not get the job: he says she failed to articulate a clear vision for the departments she wanted to lead.

[114]       I am not persuaded that Principal L’s feedback, or BM’s question about Black Lives Matter (assuming he asked this question), or Teacher D’s evidence about other incidents at School 2, are sufficient to bring the connection between Teacher D’s protected characteristics and the Department Head Allegations out of the realm of conjecture. Considering that the successful candidates had previously been department heads for several years, and there is no evidence before me that they had not performed their duties competently, I am satisfied the respondents are reasonably certain to prove the decisions were based solely on the candidates’ experience and qualifications. I find Teacher D has no reasonable prospect of proving the decisions not to appoint her as department head, in 2020 and 2021, were connected to her protected characteristics.

c.      Early 2021 Allegations

[115]       The respondents say Teacher D did not experience discrimination as a result of the incidents described in the Early 2021 Allegations. Regarding some of these incidents, they say their conduct was justified, either because they took appropriate steps to address Teacher D’s concerns, or because the incidents appeared to be resolved. Regarding other incidents, they say Teacher D misapprehended the relevant facts, and a full picture of the incidents shows that there was no adverse impact on Teacher D’s employment, in which her protected characteristics were a factor.

[116]       As I understand Teacher D’s argument, she says the incidents described in the Early 2021 Allegations disclose a pattern of negative treatment against her, in relation to her protected characteristics and her anti-racism efforts, by different members of the School 2 community. She says these incidents contributed to a poisoned workplace, where school administrators failed to address racism and other discriminatory conduct by staff, and sometimes participated in that conduct themselves.

[117]       For the following reasons, I am satisfied that Teacher D has no reasonable prospect of proving she experienced an adverse impact on her employment, which was connected to her protected characteristics, as a result of the incidents described in the Early 2021 Allegations.

[118]       I am satisfied that Teacher D has no reasonable prospect of proving any adverse impact on her employment resulting from the diversity week incident in February 2021, when students were asked to wear black t-shirts to raise awareness about racism. Teacher D says Principal L ignored her concerns about this event being performative and offensive, and about the lack of clarity around the symbolism. But she does not appear to deny Principal L’s evidence that, after hearing Teacher D’s concerns, he asked the students who proposed the black t-shirt idea to explain its symbolism to the school community, and they did. Teacher D did not explain how this incident had any impact on her employment, in light of the undisputed facts.

[119]       I am also satisfied that Teacher D has no reasonable prospect of proving discrimination based on the School District’s failure to create a Social Justice Department Head position at School 2, in 2021. The respondents’ evidence is that the position was created the following year, after being piloted in a different school in 2021. Again, Teacher D does not dispute this. Nor does she explain how the School District’s decision to wait until 2022 to create the position at School 2 was connected to her protected characteristics.

[120]       Regarding the January or February 2021 incident in which a School 2 staff member referred to reverse racism, in a breakout room during an online staff meeting, Teacher D’s human rights complaint says Principal L dismissed her concerns about the incident, but also that he apologised about it. The respondents say Teacher D did not ask Principal L, or anyone else, to take any steps to respond to the incident. Teacher D does not appear to deny this, in her response to the application to dismiss.

[121]       I am satisfied that Teacher D has no reasonable prospect of proving this incident, on its own, had an adverse impact on her employment. There is no evidence that she asked Principal L to take any action, when she spoke to him about the incident, or that she expressed any concern to Principal L about his response to the incident, before she filed her human rights complaint. Teacher D does not explain how Principal L’s response was inadequate, or what he should have done differently.

[122]       Regarding the incident between Teacher D and Teacher B at the anti-racism committee meeting in March 2021, there appears to be no dispute that, after Teacher B asked Teacher D not to interrupt another speaker, a heated dispute ensued in which Teacher D used the term white privilege, and Teacher B understood this to be an accusation of racism. Nor is there any dispute that Teacher D later attended a form of mediation with Teacher B, or that Teacher D told Principal L she was satisfied with the outcome of the mediation. Teacher D’s human rights complaint says Principal L later told her not to use terms like white privilege, systemic racism, and white supremacy culture, because it could offend other staff, and this amounted to “tone-policing” and silencing her. Principal L acknowledges asking her not to say “white supremacy” but denies that he told her not to say “white privilege”.

[123]       Again, I am satisfied that Teacher D has no reasonable prospect of proving this incident, on its own, had an adverse impact on her employment. Based on her account of the incident, it appears Teacher B and Principal L were involved in a process that aimed to address racism in the school community, and there were mis-steps in that process, and some inappropriate comments were made. But the evidence before me does not suggest this had any adverse impact on Teacher D’s employment. She does not deny that she later told Principal L the incident was addressed to her satisfaction.

[124]       Regarding Teacher D’s allegation that School 2 administrators discouraged Teacher D’s emails to school staff, in April 2021, about holidays and celebrations from different cultures and religions, Teacher D does not specify who discouraged this, among School 2 administrators, or how they discouraged it. Principal L denies that anyone discouraged this, and says he was supportive of these emails. While there is some contemporaneous evidence before me, in the emails Teacher D sent to Principal L about her emails to other staff, this evidence does not show Principal L or anyone else in School 2’s administration discouraging Teacher D from sending similar messages in the future.

[125]       I find this allegation has no reasonable prospect of success because it is vague and does not include sufficient particulars to take it beyond conjecture. I am unable to speculate about what further information Teacher D may provide about this incident. In the absence of information about which School 2 administrators discouraged the emails, or when, or what they said, I find Teacher D has no reasonable prospect of proving the facts underlying this allegation.

[126]       Regarding Teacher D’s allegation about her anti-racism presentation in May 2021, which was interrupted by a staff appreciation event, there is no dispute that she was interrupted, but there is evidence that Principal L and other school administrators attempted to stop the interruptions. The respondents provided copies of Principal L’s online messages with Teacher D, and with other administrators, during the presentation. These messages appear to show that Principal L expressed regret about the interruptions, and that he and other school administrators realised, while the staff appreciation event was ongoing, that it was interrupting the anti-racism presentation. The messages suggest that Principal L and another school administrator tried to stop the people who were posting the photos that were interrupting Teacher D’s presentation, although it appears the interruptions did not actually stop.

[127]       Teacher D says Principal L and other school administrators did not try to stop the interruptions to her anti-racism presentation. Her submissions in response to the application to dismiss do not address the messages provided by the respondents, which suggest otherwise. She does not dispute Principal L’s evidence that she did not report any concerns to him about this incident, after the presentation was over.

[128]       I am satisfied that Teacher D has no reasonable prospect of proving this incident breached the Code. Based on the evidence before me, I find the respondents are reasonably certain to prove that some steps were taken to stop the people who were interrupting Teacher D’s presentation. Even if Principal L and other school administrators could have done more to stop the interruptions, Teacher D does not explain how their failure to do so resulted in an adverse impact on her employment. There is no dispute that Teacher D was able to complete the anti-racism presentation, even if some staff were distracted.

[129]       I have found that Teacher D has no reasonable prospect of proving that the incidents described in the Early 2021 Allegations, considered separately, were discriminatory, but that does not necessarily mean the complaint based on these allegations has no reasonable prospect of success. I understand Teacher D also argues that all her allegations, considered together, demonstrate a pattern of systemic racism and a poisoned workplace. I consider the evidence about the Early 2021 Allegations again below, where I address all of Teacher D’s allegations as a whole.

d.     Harassment and Transfer Allegations

[130]       Under this heading I consider whether Teacher D has no reasonable prospect of proving her allegation that the decision to suspend her from employment, pending investigation of the harassment allegations by and against her, was discriminatory. I also consider whether she has no reasonable prospect of proving that the decision to transfer her out of School 2, in late 2021, was discriminatory.

[131]       Teacher D’s complaint was filed before the investigation into the harassment allegations was complete, and before the School District decided to transfer her out of School 2. As noted above, I do not consider her allegation that the investigation was discriminatory to be in the scope of her complaint. However, the respondents do not suggest the decision to transfer her out of School 2 is outside the scope of the complaint, and their application to dismiss the complaint specifically addresses whether her transfer out of School 2 was discriminatory. Considering this, and the apparent factual connections between the allegations in Teacher D’s complaint and her transfer out of School 2, I find it is appropriate to consider her transfer out of School 2, even though it post-dated the complaint.

[132]       For the following reasons, I find Teacher D has no reasonable prospect of proving the decision to suspend her pending the investigation, or the decision to transfer her, after the investigation, were connected to her protected characteristics.

[133]       Teacher D’s argument about the decision to suspend her is based on the fact that she was suspended after being accused of harassment, while the people she accused of harassment were not suspended. I accept that the respondents are reasonably certain to prove a non-discriminatory explanation for this. As the respondents point out, Teacher D accused three teachers of harassment, and suspending all three of them would have been more disruptive than only suspending Teacher D. There is no dispute that Teacher D and the teachers she complained about would have had difficulty working together, while the harassment complaints were outstanding, and there is no suggestion that anyone other than Teacher D had expressed concern about working with any of the teachers she complained about. In these circumstances, I am satisfied the respondents are reasonably certain to prove the decision to suspend Teacher D was made for legitimate operational reasons, and was not connected to her protected characteristics.

[134]       I now turn to the decision to transfer Teacher D out of School 2. The respondents say this decision was made because Teacher D’s relationships with other School 2 staff were irrevocably broken. They say this breakdown resulted from her making retaliatory complaints against RG and Teacher B, even though they had not complained about her, and against Teacher S, after she found out Teacher S was the one who complained about her. In making this decision, the respondents say the School District relied on the external investigation report about the harassment allegations, which found that Teacher D’s complaints were retaliatory, frivolous, and vexatious.

[135]       Teacher D’s response to the application to dismiss says the decision to transfer her out of School 2 was discriminatory because only she was transferred, while the people about whom she made complaints were not. She does not offer any other submissions in support of the connection between the decision and her protected characteristics, other than referring to the fact that the people about whom she complained are white, and she is not. I find she has not brought the connection between her protected characteristics and the decision to transfer her out of the realm of conjecture. I agree with the respondents’ submission that allegations based on a complainant’s subjective belief that they experienced racism are not sufficient to raise the complaint beyond speculation and conjecture, even if the respondents are white and the complainant is not.

e.     Teacher D’s allegations considered cumulatively

[136]       I have considered Teacher D’s allegations separately. I now consider them cumulatively, to determine whether, on all the evidence before me, there is no reasonable prospect that she will prove she experienced a poisoned workplace, where racism and discrimination were not addressed by management, and where she was excluded by other, non-racialised staff. Teacher D argues that all the events described in the complaint establish a pattern of discrimination against her as a woman of colour, in a workplace dominated by white people.

[137]       Even when I consider all her allegations together, I remain satisfied that Teacher D has no reasonable prospect of proving she experienced an adverse impact on her employment, in which her protected characteristics were a factor. I have reviewed all the evidence before me, and considered Teacher D’s arguments about systemic discrimination and the challenges faced by women of colour in the workplace, and I still find the complaint has no reasonable prospect of success.

[138]       I acknowledge that racialised people experience micro-aggressions and “everyday racism”, which may be difficult for others to perceive even if it is obvious to the person experiencing it. Individual acts that may be ambiguous or explained away, when viewed in context and with an understanding of how racial discrimination takes place, may lead to an inference that race was a factor in treatment that might otherwise seem neutral: Francis v. BC Ministry of Justice (No. 3), 2019 BCHRT 136.

[139]       However, despite the subtlety of prejudice and a social context of racism, there is no presumption of discrimination: Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Bombardier Inc. (Bombardier Aerospace Training Center), 2015 SCC 39 at para. 88. A complainant must point to evidence from which it can be inferred that their protected characteristics were connected to the adverse treatment they experienced: Mezghrani v. Canada Youth Orange Network (CYONI) (No 2), 2006 BCHRT 60 at para. 28.

[140]       On all the materials before me, I find Teacher D has no reasonable prospect of bringing this connection out of the realm of conjecture. Regarding all her allegations other than Early 2021 Allegations, the respondents are reasonably certain to prove there was no connection between their conduct and Teacher D’s protected characteristics, and that Teacher D was treated the same as any other person would have been.

[141]       Finally, I turn to the Early 2021 Allegations considered together. The evidence about these allegations suggests that the School District and School 2 administrators undertook a process to address racism in the School 2 community, while Teacher D worked there, and that there were problems in the process, including mis-steps, setbacks, and disagreements. While some of these incidents were understandably frustrating for Teacher D, I find that, viewed in context, there is no reasonable prospect that the evidence could support a finding that Teacher D experienced an adverse impact in which her race or other protected characteristics were a factor, as a result of the Early 2021 Allegations or any other allegations in her complaint. Teacher D was able to continue doing her anti-racism work, she was not disciplined or terminated in relation to any of the incidents described in the Early 2021 Allegations. Nor did Teacher D find the cumulative effects so distressing she felt she had to leave her job because the workplace was poisoned. In these circumstances, I find there is no reasonable prospect that her complaint would succeed at a hearing.

IV    CONCLUSION

[142]       The application to limit publication is allowed. The Tribunal will not publish or make available to the public any information that could identify the parties to this complaint.

[143]       The application to dismiss the complaint is allowed. The complaint is dismissed.

[144]       My decision to dismiss the complaint does not mean there is no racism or discrimination in the School District. The evidence suggests that School 2 administration and staff recognised that racism in the school community needed to be addressed. But on the evidence before me, Teacher D has no reasonable prospect of proving her rights under the Code were violated.

Andrew Robb

Tribunal Member