BC Human Rights Tribunal

Employee v. Company and others (No. 2), 2025 BCHRT 157

Date Issued: July 8, 2025
File: CS-001476/18674

Indexed as: Employee v. Company and others (No. 2), 2025 BCHRT 157

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:

Employee
COMPLAINANT

AND:

Company, President, and Supervisor
RESPONDENTS

REASONS FOR DECISION

Tribunal Member: Jessica Derynck

Counsel for the Complainant until November 24, 2023: Aleem Bharmal, KC

On his own behalf from November 24, 2023: Employee

On his own behalf and agent for the Respondent Company: President

On his own behalf: Supervisor

Dates of Hearing:
May 30, 31, June 1, 2, 3, July 11, 13, 14,
August 11, 25, 26, 2022,
January 3, 4, 5, 6, May 29, September 28,
October 5, November 27, 2023,
with written submissions closing July 29,2024

Location of Hearing: Videoconference

I          INTRODUCTION

[1]               Employee worked at the Company as a video game programmer beginning in November 2016. On November 29, 2018, he filed a complaint alleging that the Company, President, and Supervisor [Respondents] discriminated against him in employment because he is from Iran. On March 15, 2019, Employee filed a retaliation complaint against the Company. The Tribunal joined the two complaints on September 29, 2020.

[2]               Employee alleges that the Respondents discriminated against him starting in July 2018 after he raised concerns about comments Supervisor and President made about a world cup soccer game between Iran and another country. At President’s direction, Supervisor met with Employee several times asking him to sign a document acknowledging that his concerns were oversensitive and agreeing to take steps to better tolerate others’ views and discussions in the workplace [Document]. Employee says this process was discriminatory because the Respondents expected him to tolerate comments other people made about Iran even if they were offensive, the process made him feel as if he did not fit in at the Company or in Canada, and he feared that he would lose his job if he did not agree with the Respondents’ views and sign the Document.

[3]               The Respondents deny discriminating. They say Supervisor engaged in a collaborative process with Employee, which was meant to address his concerns, did not have any negative impact on him, and had nothing to do with his being from Iran.

[4]               The Company terminated Employee’s employment on February 7, 2019. Employee alleges that this was retaliation for filing his discrimination complaint.

[5]               The Company denies retaliating. The Company says it only terminated Employee’s employment because of a shortage of work and loss of revenue.

[6]               For the following reasons, I find that the Respondents discriminated against Employee, and that Company retaliated when it terminated Employee’s employment. I order remedies accordingly.

II       Issues and summary of findings

A.    Discrimination

[7]               Section 13(1) of the Human Rights Code prohibits discrimination regarding employment or any term or condition of employment because of personal characteristics including place of origin.

[8]               To establish discrimination in employment based on place of origin, Employee must establish that he experienced an adverse impact in employment and that the fact that he is from Iran was a factor: Moore v. British Columbia (Education), 2012 SCC 61 at para. 33. His being from Iran does not need to be the only factor, an overriding factor, or a significant factor: Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Bombardier Inc., (Bombardier Aerospace Training Center), 2015 SCC 39 at paras. 45-52; Stewart v. Elk Valley Coal Corp., 2017 SCC 30 at para. 46.

[9]               The Respondents do not need to have intended to discriminate for Employee to make out his case: Code, s. 2. Discrimination may result from conduct that the Respondents perceived as neutral but adversely impacted Employee because he is from Iran.

[10]           Employee may make out his case by establishing an inference that his being from Iran was a factor in an adverse impact. It is more common for the Tribunal to find discrimination based on an inference because people do not often openly express prejudice based on characteristics like place of origin or race. Respondents may not even recognize prejudice in themselves: Kondolay v. Pyrotek Aerospace Ltd., 2020 BCHRT 208 at para. 107. An inference of discrimination may arise "where the evidence offered in support of it renders such an inference more probable than the other possible inferences or hypotheses": Vestad v. Seashell Ventures Inc., 2001 BCHRT 38 at para. 44; Kondolay at para. 108.

[11]           I must decide whether an inference of discrimination based on place of origin is more likely than the Respondents’ explanations for their conduct towards Employee. It is not necessary that the Respondents’ conduct be consistent only with the allegations of discrimination and not any other rational explanation: Kondolay at para. 108. Employee only needs to prove that his being from Iran was a factor in an adverse impact to establish his case.

[12]           If Employee establishes his case, the Respondents may establish a defence to the complaint by proving that the adverse impact was justified based on a bona fide occupational requirement [BFOR]: Code, s. 13(4). To do this, the Respondents must establish that the standard or conduct creating the adverse impact was for a purpose rationally connected to the performance of Employee’s job, was adopted in good faith, and was reasonably necessary, meaning that they could not have accommodated Employee without experiencing undue hardship: British Columbia (Public Service Employee Relations Commission) v. BCGSEU, [1999] 3 SCR 3.  

[13]           I find that the Respondents discriminated against Employee in employment contrary to s. 13(1) of the Code.

a.    The Respondents’ process of engaging Employee in various drafts of the Document and asking him to sign it was an adverse impact in employment.

b.    Employee being from Iran was a factor in the adverse impact.

c.     The Respondents’ conduct is not justified. They did not demonstrate that they could not have accommodated Employee without undue hardship.

[14]           I order remedies for this breach of the Code.

[15]           Next, I had to decide which of the Respondents are responsible for remedying the breach.

[16]           I find the Company to be responsible for remedying the discrimination under s. 44(2) of the Code. Supervisor was an employee of the Company at the time of the discrimination and President is an agent of the Company. Under s. 44(2) of the Code an act of an employee or agent of an employer within the scope of the person’s authority is deemed to be an act of the employer.

[17]           I had to decide whether it would further the purposes of the Code to also find President and/or Supervisor responsible for remedying the discrimination.

[18]           To decide whether individual respondents are responsible for remedying a breach of the Code, the Tribunal considers whether the institutional employer – in this case, the Company – has the capacity to fulfill any remedies the Tribunal might order, whether it has acknowledged the acts of individual respondents as its own and acknowledged its responsibility to satisfy any remedial orders, and the nature of the individual respondent’s conduct. Relevant factors to considering the nature of the individual’s conduct include whether the conduct took place within the regular course of their employment, whether they were the directing mind behind the discrimination or substantially influenced the course of action taken, and whether the conduct has a measure of individual culpability: Daley v. B.C. (Ministry of Health) and others, 2006 BCHRT 341 at paras. 60-62.

[19]           I find that it furthers the purposes of the Code to hold President responsible for the discrimination, and I find it does not further the purposes of the Code to hold Supervisor responsible.

a.    The Company did not enter evidence about its capacity to fulfill any remedies the Tribunal might order.

b.    The Company does not acknowledge the discrimination as its own conduct and does not acknowledge a responsibility to fulfill any remedial orders for the discrimination. The Company says the Supervisor should be responsible for any discrimination.

c.     The nature of the conduct is the most persuasive factor in this case. Supervisor’s conduct took place within the regular course of his employment, he was not the directing mind and did not have a substantial influence over the course of action taken, and his conduct does not have a measure of individual culpability. In all the circumstances of this case it would not further the purposes of the Code to hold him personally responsible for remedying the discrimination.

d.    President is the main decision-maker at the Company, and I find he was the directing mind behind the discrimination. It furthers the purposes of the Code to find him personally responsible for remedying the discrimination.

B.     Retaliation

[20]           Section 43 of the Code prohibits retaliation against a person because the person made a complaint under the Code.

[21]           To establish that Company retaliated against him, Employee must show that the Company knew that he made or might make his discrimination complaint at the time of the termination and show a sufficient connection between the termination and his discrimination complaint. He may show a sufficient connection by proving that the Company intended to retaliate, or he may establish an inference of a connection by showing that a reasonable complainant apprised of the facts at the time of the termination can reasonably have perceived the Company to have terminated his employment in retaliation: Gichuru v. Pallai, 2018 BCCA 78. 

[22]           I find that the Company retaliated against Employee by terminating his employment.

a.    There is no dispute that the Company knew about Employee’s discrimination complaint before terminating his employment.

b.    Employee has established an inference that the termination was connected to his discrimination complaint. A reasonable complainant apprised of the facts at the time can reasonably have perceived the termination to be retaliation.

[23]           I order remedies for the retaliation.

C.     Costs

[24]           I find that the conduct for which Supervisor seeks costs is not improper conduct and I deny his applications against Employee, and Company and President.

D.    Order limiting publication

[25]           Early in the complaint process Employee sought an order limiting publication of his name. The Tribunal issued an order in a letter decision dated September 27, 2019, limiting publication of Employee’s name and anonymizing the other parties to give effect to Employee’s anonymization. At the outset of the hearing Employee asked the Tribunal to extend his anonymization to the final decision.

[26]           I find that Employee’s privacy interests outweigh the public interest in knowing his identity and I extend the order limiting publication.

E.     Appendix – preliminary decisions

[27]           My reasons for denying two adjournment applications during the hearing are appended to this decision.

III     Evidence and credibility

[28]           In this section I explain how the Tribunal assesses credibility and summarize my findings about the witnesses’ credibility.

A.    How the Tribunal assesses credibility

[29]           Credibility involves an assessment of the extent to which a decision maker can rely on a witness’s testimony, considering both the sincerity of the witness and the accuracy of their evidence: Bradshaw v. Stenner, 2010 BCSC 1398, aff’d 2012 BCCA 296, leave to appeal refused, [2012] S.C.C.A. No. 392 (QL) at para. 186. This involves consideration of factors including a witness’s ability and opportunity to observe events, firmness of memory, ability to resist the influence of interest to modify recollection, consistency within the witness’s own testimony, harmony with independent evidence that has been accepted, whether the witness’s evidence seems unreasonable or unlikely, whether there is a motive to lie, and the witness’s general demeanour: Bradshaw at para. 186.

[30]           In some cases, a witness’ evidence may not be reliable because they have “made a conscious decision not to tell the truth”: Youyi Group Holdings (Canada) Ltd. v. Brentwood Lanes Canada Ltd., 2019 BCSC 739 at para. 89. In other cases, a witness may make an honest effort to give truthful evidence, but their testimony may not be reliable because of their inability to accurately observe, recall, or recount the event: R. v. H.C., 2009 ONCA 56 at para. 42; Youyi at paras. 89-90. In that case, if their testimony conflicts with the testimony of other witnesses who are better positioned to testify accurately, their evidence is not reliable: Klewchuk v. City of Burnaby (No.6), 2022 BCHRT 29 at para. 15.  

[31]           Many issues in this complaint are about differences in perspective rather than disputes about what happened, but the parties’ credibility is essential to several aspects of the case. Employee’s and Supervisor’s evidence conflicts in some areas where I must decide which evidence to prefer. Employee’s credibility is also important to my findings about the impact of the discrimination and retaliation on him. President’s credibility is important to my decision about liability of individual respondents for the discrimination complaint and is essential to my decision on the retaliation complaint.

[32]           When I must make findings of credibility to make my decision, I do so on a balance of probabilities, applying the principles in Bradshaw set out above, and considering whether each witness’ evidence is in “harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions”: Overseas Investments (1986) Ltd. v. Cornwall Developments Ltd., 1993 CanLII 7140 (AB KB) at para 13; Bradshaw at para. 187. In doing so, I may accept none, part, or all of a witnesses’ evidence, and may attach different weight to different parts of their evidence: MP v. JS, 2020 BCHRT 131 at paras. 20-21.

[33]           I have considered all of the evidence admitted at the hearing. I recount only the evidence necessary to make my decision.

B.     Employee’s evidence

[34]           Employee was the only witness for his case. Overall, I find that he made genuine efforts to give accurate evidence. Employee was distressed throughout much of his testimony but remained sincere. His evidence was not always accurate and clear, but I attribute any inaccuracies and moments of confusion in his evidence to the passage of time and the difficulty of testifying in English, which is not Employee’s first language. 

[35]           Supervisor submits that Employee contradicted statements in his complaint form and his direct evidence under cross-examination. Supervisor also submits that Employee’s evidence about the impacts of the Respondents’ conduct on him conflicts with the Respondents’ witnesses, and that I should prefer the Respondents’ evidence. I address these contradictions and conflicts as necessary in the analysis below to explain my decision. Overall, these issues do not impact my finding that Employee made a sincere effort to give accurate evidence.

[36]           The areas where Employee’s evidence conflicts with Supervisor’s are mainly about details of what happened in conversations between them in 2018. Supervisor says Employee’s evidence about these interactions is not credible because Employee says Supervisor yelled at him and there is no evidence that anyone else heard yelling, which would have carried through the office.

[37]           Where I need to accept evidence from either Employee or Supervisor and reject evidence from the other, I explain this in my analysis. In all of these cases this is a matter of which evidence I find more likely to be accurate, and not a question of whether Employee or Supervisor were sincere in giving their evidence. For example, I find that the lack of evidence that any other employees heard yelling does not impact Employee’s credibility because the volume and intensity of Supervisor and Employee’s conversations is more a matter of perspective. There is no dispute that they had heated conversations, and whether or not they both agree that there was “yelling” is not crucial to my decision. 

[38]           President and the Company submit that Employee’s lack of participation at the end of the hearing process signifies a concession in his case. In the Appendix to this decision, I explain that Employee’s legal counsel withdrew from representing him after I denied an application Employee made for an adjournment before the Respondents were finished putting in their evidence. President submits that when Employee opted not to cross-examine the Company’s accountant, this signifies that Employee had “no additional outstanding concerns” about the termination of his employment. I understand this submission as saying that Employee’s lack of participation impacts the weight I should give to his evidence in support of his retaliation claim.

[39]           I find that Employee’s lack of participation in the latter part of the hearing does not signify a lack of concern about any aspect of his complaint. Employee gave evidence that the process was very stressful for him. His counsel later submitted that he sought adjournments because his mental health was suffering. Employee submitted medical letters in support of his adjournment requests. Employee’s lack of participation at the end of the case indicated that the process became extremely difficult for him and he was not able to carry on with the process while he was taking care of his mental health and attending to other things in his life. His lack of participation towards the end of the process does not impact his credibility. I do not find any of his evidence less reliable or give it less weight because he did not cross-examine all of the Respondents’ witnesses or make closing submissions.

C.     Respondents’ witnesses

1.      Supervisor

[40]           Supervisor testified for the Respondents. I find him to be a sincere witness who made efforts to give accurate evidence.

[41]           Employee’s counsel asked Supervisor in cross-examination about the content of the Respondents’ application to dismiss the discrimination complaint. Supervisor provided a written statement in support of the application, and some assertions in the application itself were not accurate. Employee’s counsel suggested to Supervisor that the application materials were misleading.

[42]           At the time of the application to dismiss, President represented all of the Respondents, including Supervisor. Supervisor testified that he provided his statement to President but did not review the application and submissions because at the time he left it up to President to deal with the issue and President did not ask him to review them.

[43]           Supervisor’s approach to the discrimination complaint and application to dismiss when President represented him does not raise any concerns about his credibility. Supervisor’s statement in support of the application to dismiss is accurate and he did not contradict himself throughout this process. The inaccuracies are in the application materials that President prepared. There is some lack of diligence on Supervisor’s part in declining to review the application and submissions that were filed on his behalf as well as for the other Respondents, but I find that relying on President to respond to and defend against the Complaint on his behalf is understandable for an employee in his position at the time. The inaccuracies in the application to dismiss were President’s and they do not indicate that Supervisor intended to mislead the Tribunal or negatively impact the process. Supervisor diligently represented himself in the Tribunal’s process to the best of his ability once President stopped representing him and made a sincere effort to give accurate evidence.

2.      President

[44]           President testified for himself and the Company. He was not a credible witness.

[45]           In a preliminary decision on this complaint dated April 11, 2024, Employee v. Company and others, 2024 BCHRT 112 [Preliminary Decision] I found that President, after making a solemn promise to tell the truth in his testimony, denied writing and sending a letter that he did in fact write and send, and fabricated a different letter and email in response to Employee’s application to admit the genuine letter as evidence.

[46]           My findings in the Preliminary Decision significantly undermined President’s credibility and put the reliability of any evidence from him into serious question. In some cases, it may be open to the Tribunal to accept some evidence from a witness as reliable even where their credibility is adversely impacted: Ma v. Dr. Ianin G. M. Cleator and another, 2014 BCHRT 180 at para. 137. That is not the case here. President was not sincere when he solemnly promised to give the Tribunal truthful evidence. This makes his evidence unreliable overall.

[47]           I would also find President’s evidence to be unreliable based on other issues with his testimony at the hearing. His evidence was often insincere, self-serving, or internally inconsistent. For example, President denied in cross-examination that he viewed an email that Employee sent to President as “off base” even though he wrote in an email to Supervisor that Employee’s email was “way off base on this and needs to acknowledge as such”. President also denied that if Employee repeated his conduct probation would be warranted despite having written in an email to Supervisor that probation would be warranted if Employee wrote another similar email again. President then testified that, in any case, probation is not a punishment but is a positive way to bring up issues and work through them. Then, later in his cross-examination in the context of giving evidence that Employee’s job performance was poor, President testified that employees who struggle will not necessarily be put on probation because probation means something is serious.

[48]           Throughout his testimony, President tried to give evidence that he thought would help his case, rather than trying to give accurate evidence. I say more about his credibility when I explain why I do not accept certain evidence from President in the analysis below. 

3.      Producer – Mr. R

[49]           The Respondents called a Company employee who was a producer at times relevant to the complaint as a witness. I call him Mr. R. Mr. R was the only employee of the Company who reported directly to President. Supervisor reported directly to Mr. R.

[50]           I find that overall Mr. R made a sincere effort to give accurate evidence. When I rely on his evidence to make my decision, I explain this in my analysis below. 

4.      Lead Programmer – Mr. S

[51]           Another Company employee who is lead programmer also testified. I call him Mr. S. Mr. S supervised Employee’s team and worked daily with Employee, including assigning him tasks.

[52]           I find that Mr. S made a sincere effort to give accurate evidence, and where I rely on his evidence, I explain this in the analysis below.

5.      Accountant – Ashwin C. Maharaj

[53]           President introduced affidavit evidence on Company’s behalf from the Company’s accountant, Ashwin C. Maharaj, in response to the retaliation allegation. Employee had an opportunity to cross-examine Mr. Maharaj and did not do so. I accept Mr. Maharaj’s evidence and explain my use of it in the retaliation analysis below.

6.      Other comments on the Respondents’ evidence

[54]           The Respondents called two other witnesses who were employees of the Company at times relevant to the complaint and are from Iran. On an application for adjournment during the hearing I determined that their evidence was not relevant to the issues I must decide. Therefore, I do not consider any of their evidence to make my decision.    

IV    Discrimination

A.    Background to discrimination allegation

[55]           This complaint arose after a world cup soccer game between Iran and Portugal that was on TV in the Company lounge. The night before the game, some Iranian fans made noise outside the Portugal team’s hotel to disturb the players in hopes of affecting their game. Supervisor commented on this while Employee was watching the game in the Company lounge, saying that the Iranian fans “are kind of cheating”. President also emailed everyone at the Company after the game commenting on the Iranian fans’ tactic, saying “it almost worked” [President’s Email] (the game ended in a tie).

[56]           Employee felt uncomfortable in response to Supervisor’s and President’s comments. Employee felt that the comments were negative ones about the Iranian fans, highlighting that they had done something that others might perceive as wrong. Employee did not consider Supervisor’s and President’s comments to be discriminatory and the comments are not within the scope of his complaint, but he was uncomfortable enough that he decided to raise his concerns with Supervisor and President.

[57]           In his cross-examination by Supervisor at the hearing, Employee explained that other people’s comments related to Iran sometimes offend him, and he explained why. Employee’s place of origin is part of his identity. People sometimes make comments about Iran that involve unfortunate or concerning events. When this happens and the comments are simply factual, or have an element of truth to them, Employee explained that this may be embarrassing but is not necessarily offensive to him personally. A comment about Iran rises to the level of offending Employee if his impression from the person’s tone, facial expression, and from the context, is that the person who made the comment did so for no reason other than to embarrass Employee or ridicule Iran. In other words, Employee does not find all comments about Iran to be offensive.

[58]            For example, Supervisor once mentioned to Employee that Iran supported a terrorist group that had killed people in Lebanon. This offended Employee because he perceived Supervisor’s tone and facial expression as unfriendly, and the comment was out of context. Employee did not see any reason for Supervisor to make this comment other than to embarrass him because he is from Iran. Employee did not raise his concern with Supervisor at the time of this comment and this comment is not within the scope of the complaint, but I explain below that Employee raised it with Supervisor during the events that are the subject of the complaint.       

[59]           On June 25, 2018, after the game, Employee told Supervisor that he felt uncomfortable when Supervisor commented that the Iranian fans were “kind of cheating”. Supervisor did not understand why Employee was uncomfortable because Supervisor did not intend any harm. Supervisor acknowledged in cross-examination that he intended his comment to be ridicule of the Iranian fans, but he did not intend to offend Employee personally.

[60]           Employee and Supervisor misunderstood each other during their conversation about Supervisor’s comment and their conversation became heated. Employee told Supervisor that he had mumbled something under his breath in the lounge because he was upset. They each apologized, but then Supervisor asked Employee what he had mumbled. Employee said he had mumbled “that’s bullshit”, and Supervisor said he had not heard. Employee says the conversation continued for a short time and he was uncomfortable, and Supervisor then became angry and yelled “I didn’t say your country is shit.” Employee did not know what Supervisor meant but felt offended. Supervisor does not recall saying this but acknowledges that he may have said something along these lines if he thought Employee was accusing him of insulting Iran.

[61]           After their conversation Supervisor did not understand what he had said to trigger Employee’s hurt feelings. Supervisor’s understanding was that Employee did not want Supervisor to talk to him about Iran. He was concerned that Employee appeared oversensitive to workplace comments that Supervisor believed were innocuous, and Employee’s concerns might impact others in the workplace.  

[62]           Employee also replied to President’s Email on June 25, 2018. Employee said:

Hi [President],

I know the news is true and it was wrong doing. However, I was irritated by others mentioning this matter directly to me in the studio today and your email did not help and may annoy other Iranian in the studio as well. As a member of [Company], I think we should be more considerate of each other’s feelings.

Thanks for your consideration,

[Employee] [reproduced as written]

[63]           President forwarded Employee’s email to Supervisor and other leads at the Company, starting off an email discussion between them [Leads’ Email Chain]. In the final email in the chain, President directed Supervisor to deal with Employee’s oversensitivity and get it under control by having Employee agree to a “reality check process” that he would follow before raising any similar concerns in the future.

[64]           The process of Supervisor engaging with Employee to sign the Document, which is the subject of the discrimination complaint, followed over the next two months. The process involved several meetings between Employee and Supervisor about the issue, and at least six drafts of the Document. Employee did not agree with how the Respondents characterized the events that led to the drafts of the Document, or with the “reality check process” that the Respondents asked him to agree to rather than bring up any similar concerns in the future. Employee did not sign any version of the Document, and President eventually directed Supervisor to place the unsigned Document in Employee’s file.

B.     The Document process was an adverse impact in Employee’s employment

[65]           The Tribunal explained how it distinguishes between an employee’s subjective experience of a negative impact and an adverse impact for the purposes of the Code in Singh v. A & M Enterprise Ltd., 2023 BCHRT 148 at para. 57:

Under human rights law, an employee’s subjective perception of adverse impact or treatment is not always enough to prove discrimination. Employers are entitled to manage their workplace. The discrimination analysis distinguishes between "reasonable conduct arising from management of a workplace and conduct that is degrading or otherwise demeaning of an employee’s dignity": Gaucher v. Fraser Health Authority and others, 2019 BCHRT 243 at paras. 62-63. The entire context of the situation is considered to determine whether any impacts on the employee rise to the level of discrimination contrary to the Human Rights Code: see also Brito v. Affordable Housing Society, 2017 BCHRT 270 at para. 40.

[66]           For this analysis it is the impact on Employee that matters, not Supervisor’s intentions: Code, s. 2. I consider Employee’s evidence about how he felt when Supervisor engaged with him and asked him to sign the Document in the context of the concerns Employee raised, how he raised them, and the Respondents’ right to address concerns that come up in the workplace.

[67]           Supervisor submits that there was no adverse impact because he revised the Document based on Employee’s input, Employee was allowed to stop participating in the process without signing the Document, Employee’s claims of the harm from the various drafts of the Document are exaggerated, the Document accurately captures Employee’s perspective of Supervisor’s and President’s comments about the Iranian news fans, and Supervisor did not threaten or verbally abuse Employee during any of their discussions. Supervisor further submits that Employee’s issue is only based on his subjective interpretation of the process, not on any evidence. 

[68]           I find that the Respondents engaging Employee in the Document process in reaction to Employee’s concerns was an adverse impact in employment for two reasons. First, the Document process was not collaborative but was essentially a disciplinary process that caused Employee to fear for his employment. Second, the content of the various drafts of the Document and Supervisor’s discussions with Employee went beyond reasonable conduct required to manage the workplace and was degrading and demeaning.

1.      The Document process was disciplinary

[69]           Employee says he feared for his employment throughout the Document process. The Respondents say Employee had no reason to fear for his employment and that the process was not disciplinary, but President made it clear in his emails to Supervisor that he wanted to get Employee and his concerns in line.

[70]           In one email in the Leads’ Email Chain, President included some links that, he said, “show how [Employee’s] oversensitivity can cause much larger problems with the rest of the team.” He said it was important to sit Employee down and point out that no one else, including the other Iranian employees at the Company, found President’s Email about the news story to be offensive. President directed Supervisor to talk to Employee to tell him that he was being oversensitive and had to get it under control, and that his email to President was inappropriate and could not be repeated to anyone in the future. President went on to say, “The problem is that if you ‘walk on eggshells’ around this issue with [Employee], it will likely crop up again in the future and may already have who knows how many times.” President repeated that Employee was being oversensitive and needed to get it under control. He said Employee was probably also oversensitive about any criticism of his work, which is not healthy. President directed Supervisor to email him the result of this meeting.

[71]           Mr. R responded in the Leads’ Email Chain to say he would like to push the conversation to the following week because he did not want Employee’s mind drifting from focus on his tasks to meet an upcoming deadline. Supervisor responded to ask for some guidance, and said:

I agree that his actions is toxic, and he needs to own up to his actions. I am putting him to task to resolve bottled up past resentment with some follow up actions, I had planned a follow up meeting with him next week to track progress. I want him to learn to either control his emotions or find out how to resolve resentments that have been stewing for a long time.

One more point, I find nothing inappropriate about his email, although I can see how agitated the writer is, his language is respectful and expresses his own feelings. If you can explain what’s inappropriate with it, I’ll address the issue of that email in my meeting as well. [reproduced as written]

[72]           President responded to say that Supervisor perceiving that Employee was agitated was a clear sign that using email was inappropriate. This was the final email in the Leads’ Email Chain. President set out a list of eights points, which I summarize by paraphrasing:

1.      Email is the worst form of communication to use when someone is emotional.

2.      Employee assumed other Iranian employees were irritated but did not check with them, and they were not bothered.

3.      Employee’s email caused the Company leads to waste a lot of time dealing with his oversensitivity.

4.      Employee should have done a “reality check”, including checking with others to see if they were bothered, talking to the person he has an issue with face-to-face, asking President in person whether he meant his email the way Employee took it, giving others the benefit of the doubt instead of making assumptions about their intentions, not carrying around negative emotions but dealing with issues face-to-face when they come up, and “If it can’t be dealt with to both parties satisfaction, everyone’s employment contract outlines the process. i.e. ask for a mediator, etc.”

5.      Employee is off base and needs to acknowledge this.

6.      Employee needs to use the “reality check process” in the future.

7.      Two copies of the “reality check process” should be printed out and Employee should sign both, one copy for himself and one for his file.

8.      “We can not have a repeat performance. If it happens again, the only solution at that point is probation.” 

[73]           President directed Supervisor to tell Employee that he had crossed a line and must agree not to engage in similar conduct in the future and intended to keep Employee’s signed acknowledgement of this in Employee’s file. This is a manner of disciplining an employee.

[74]           When Supervisor engaged Employee in the Document process, he also indicated to Employee that his employment was on the line. I accept that Supervisor did not intend to scare Employee and meant the process to be collaborative, but that was not the reality.

[75]           When Supervisor first spoke to Employee about his response to President’s Email on July 3, 2018, he told Employee that after the email he had sent to President, they may have to “cut ties”. Supervisor denies using this expression with Employee at any time, but I find that Supervisor did use it, and it stuck with Employee.

[76]           Employee recalled Supervisor also using the expression “cut ties” or “cutting ties” during his probation period when he first started at the Company, in the context of Supervisor saying that if Employee did not improve his performance, they would “cut ties”. Employee says it stood out to him that Supervisor used the same phrase at this meeting. Employee also recalls returning to this phrase in a subsequent discussion with Supervisor on July 17, 2018, where Employee says Supervisor acknowledged using the phrase on July 3 but suggested that Employee took it out of context.

[77]           I accept Employee’s evidence that Supervisor talked to him about a possibility of “cutting ties” during the Document process. Employee recalled this because he was afraid of losing his employment and this had a significant impact on him.

[78]           The Document also set out directions to Employee for how to conduct himself in the workplace, and the first draft of the Document referenced the possibility of termination of employment. Supervisor emailed the first draft of the Document to Employee on July 6, 2018, with the subject line “HR: Please review the documentation regarding our discussion”. In the body of the email, Supervisor said “And let me know if there are any parts of it you’d like to change.”

[79]           Under the heading “Grievance”, the Document says Employee confronted Supervisor on June 25, 2018, about his comment on the news story, and emailed President implying that the news story should not be brought up due to a potential injurious effect on other people of Iranian background.

[80]           Under the heading “Conversations that took place”, Supervisor wrote that Employee had “admitted to keeping some lingering resentment” toward another employee, Mr. S, since the start of the World Cup, “caused his hypersensitivity toward any negative comments made towards Iran.” This was another misunderstanding. Employee was upset when he believed Mr. S laughed at Supervisor’s comment about the Iranian fans, but this was not lingering resentment.

[81]           The Document says Employee resolved his resentment toward Mr. S. It then says Employee and Supervisor “went through a retrospective exercise to see how things could have been better handled”, and came up with six points, which I summarize here:

1.      In Canada we encourage diversity of thought and respect others’ feelings on any matter; “…it follows that any attempt of censure will be viewed as an affront to this shared societal value.” The guarantee of freedom of speech does not extend to hate speech or abusive language.

 

2.      Keeping anger bottled up inside is not good for anyone; Employee did this and it resulted in “misdirected anger that triggered more emotional response from everyone around him.”

 

3.      Employee took Supervisor’s comments and Mr. S’ actions out of context and misunderstood them, which caused his anger to “swell up”. “One’s understanding of an event is really a matter of perspective, and it is important to try and control one’s emotion until they can gain the right perspective on the matter.”

 

4.      Email is a poor medium to communicate when emotion is involved and sending an email when one is emotional is highly discouraged. “In an extreme case sending an email in an emotional state can result in termination if the email contains verbal assault on another person.”

 

5.      Employee feels “very strong pride in his country of birth and cultural background”, views any negative comments about Iran as a personal insult, and this is a valid perspective if it is not imposed on others or assumed to be shared with others. “To live in a multi-cultural society demands one’s awareness and tolerance of this fact.”

 

6.      Employee admitted to being socially awkward and at a loss on how to interact with people in social settings, and wants to improve.

[82]           The next heading in the Document is “Steps to improvement”, and it lists four points, which I summarize here:

1.      Employee will handle negative feelings caused by others’ comments directly and as soon as possible.

 

2.      Employee will “need to find a working strategy to get his emotion under control.” Suggested methods include taking time out from a situation and asking clarifying questions.

 

3.      Employee “will attempt to improve tolerance towards dissenting/conflicting perspectives and learn from the differences with an open mind. He can start by listening and talking to others in/out of the studio that does [sic] not share his views of the world.”

 

4.      Employee is encouraged to find ways to engage in casual conversations about topics he cares about at lunch, or join a Company swim club, to practice communication and address social awkwardness. Outside of the Company, he “can join meetup groups for a casual social conversation designed especially for expats living in Vancouver.”

[83]           The end of the Document says that Employee and Supervisor fully discussed the context, Employee agrees with the content and points raised, and will work towards implementing the steps to improvement. There are spaces for both Supervisor and Employee to sign.

[84]           Employee was concerned about the reference to termination of employment even though he knew that his email to President was not a “verbal assault”. Employee was afraid that he had acted out of place by emailing President and the possibility of termination caused him anxiety.

[85]           Supervisor emailed Employee on July 9, 2018, to send him the second draft of the Document, and asked Employee to note that the Document is not a reprimand and does not imply any wrongdoing on anyone’s part. However, the second draft of the Document kept the reference to termination of employment for “verbal assault”, and again set out steps to improvement, including that Employee needed to “find a working strategy to get his emotion under control”. The impact on Employee was feeling that his job depended on his agreeing to and signing the Document. This was a reasonable perspective given the content of the Document.

[86]           I also find that in a meeting on July 13, 2018, where Supervisor showed Employee a third draft of the Document, Supervisor told Employee that the Document was President’s response to Employee’s email to President, and Supervisor did not want to be involved in the Document process himself, but he was following President’s orders. Supervisor does not recall saying this, and says he was not aware that Employee was stressed and did not pressure Employee to sign the third draft of the Document. I accept that Supervisor told Employee that he was engaging Employee in the Document process under President’s direction. I accept that Supervisor did not appreciate the impact the process was having on Employee, but it was reasonable for Employee to feel pressure to sign the Document for the sake of his employment when he knew that Supervisor was acting on President’s directions.

[87]           Supervisor then emailed Employee on July 17, 2018, and said that he would need to submit the Document that week with or without Employee’s signature, and that he would note Employee’s refusal to work on contentious issues if Employee did not send concrete feedback within two days. This further reenforced Employee’s view that he had a reason to fear for his employment if he did not sign a version of the Document that the Respondents found acceptable.

[88]           Employee spoke to Supervisor after receiving the July 17 email and raised concerns with the Document process. Employee says he told Supervisor that he did not want to engage in the process anymore, and Supervisor frowned and told him that quitting the process would be against the will of the other managers, and that a couple of them viewed Employee’s email to President as an attempt to censor. Employee says he said that he did not think his email was an attempt to censor, and Supervisor said that did not matter. Employee says he raised concerns with how Supervisor had conducted the process so far, like Supervisor’s previous reference to “cutting ties”. Employee says Supervisor told him that he took the “cutting ties” comment out of context, and that it just meant that if Employee did not cooperate with the Document process that he could either leave himself or they would consider removing him. This was what Employee had understood it to mean, so he did not believe he took it out of context.  

[89]           Supervisor did not testify about this meeting and did not dispute Employee’s recollection of it, other than to dispute that he talked about the concept of “cutting ties” at any point.

[90]           I accept Employee’s evidence that this meeting occurred and that his conversation with Supervisor was along the lines of his recollection. Employee’s recollection is consistent with the emails back and forth between him and Supervisor. Supervisor was not aware of the impact the process had on Employee at the time and was focused on what he was trying to do, which was resolve the issue as President had directed him to do, so he could move on from it. Employee, on the other hand, felt that he had to sign the Document despite concerns and disagreement with what it said if he wanted to keep his job.

[91]           Employee and Supervisor continued to exchange emails and drafts of the Document. On July 18, 2018, Supervisor sent Employee a fifth draft of the Document. Supervisor reinserted a section that Employee had asked to remove, added additional steps for Employee to follow to “improve our working relationship”, and added sentences at the end to say that the Document had been fully discussed by both signing parties, and that Employee agrees with the content and points raised and will refer to the Document again if similar issues arise in the future.

[92]           Employee felt at this point that signing the Document would put his employment in danger, because the Respondents would use it to hold him accountable to what he agreed to by signing it. He emailed Supervisor to say that the Document was “inaccurate at best”. Supervisor responded the next day. He said he knew Employee was resenting the Document, but they needed to write it together and come to an agreement. He apologized for missing some of Employee’s changes and said he had put them back into the Document, but it was destructive to say the Document was “inaccurate at best”. Supervisor said:

We’re in an unlucky circumstances together and I want to get out of this as much as you do. However I also sensed that you wanted to put the blame on others when I have stated and I truly believed that there is no one to blame. The events that unfolded was truly an unlucky circumstances. If the world was black and white we can easily see who the bad guys are, everyone would be locked up in jail including ourselves.

The leads need to see a report that is balanced and explains what happened that day without this turning into a blame game, so to this end I suggest that you need to own up your emotions and the actions that did happen without pointing fingers to other people that you feel are responsible for your emotions and actions. [reproduced as written]

[93]           Employee was still concerned about his employment at this point, and I find that his concern was understandable and reasonable in the circumstances. Supervisor’s communications and the Document itself suggested that Employee had done the wrong thing by raising his concerns, and that he needed to acknowledge his wrongdoing and agree that he would conduct himself differently in similar situations in the future.

[94]           Employee sent Supervisor the sixth version of the Document with his own comments on it in red. Supervisor did not reply to Employee’s email. Supervisor testified that he did not respond to Employee at that time because he wanted Employee to focus on work deadlines. Supervisor also testified that he did not read Employee’s comments on the sixth draft until the hearing of the complaint.

[95]           By the time of the hearing Supervisor felt that it was a mistake not to read Employee’s comments at the time and respond to them. I agree. Not reading Employee’s comments and failing to respond to him seriously undermined Supervisor’s intention to make this a collaborative process.

[96]           By mid-August Employee was concerned enough about the Document issue that he had consulted lawyers. He emailed Supervisor on August 23, 2018, to say that he had an appointment with a lawyer on September 10 and wanted to move forward with writing the Document after that. Supervisor was shocked that Employee would be meeting with a lawyer. An email exchange followed in which Supervisor told Employee that if he showed a lawyer the Document, he would be breaching his non-disclosure agreement [NDA] with the Company, and that talking to a lawyer indicated a lack of trust and he hoped that Employee could continue working with him on the basis of mutual respect. Supervisor told Employee that he had no choice but to tell President if Employee would be consulting a lawyer, and he did not know what President would do.

[97]           Employee felt that he had a basic right to seek legal advice about his work situation, but he felt threatened by Supervisor’s response, and was worried about what President would do. Employee emailed Supervisor and said that he would not consult with a lawyer and would continue engaging in the Document process with him. 

[98]           By the time he testified at the hearing, Supervisor understood that consulting a lawyer would not have been a breach of Employee’s NDA with the Company. I accept that Supervisor did not intend to mislead or scare Employee, but he was concerned himself about what might happen if Employee consulted a lawyer. However, Employee was afraid there would be consequences of consulting with a lawyer about his workplace issue despite believing it was his right to do so. This contributed to Employee’s fear for his employment.

[99]           Employee ultimately did not sign the Document. When Supervisor updated President on the situation, President emailed Supervisor and said:

Tell him if he’s not prepared to sign the document then that’s fine. You’ll just make a note on the document that after several revisions that he’s refused to sign it and that you’ll put it in his file with that note on it. Then let it be.

I would recommend in future that for these kinds of things that one go round is enough. It’s not worth the effort to go several rounds. If an employee refuses to sign a document the first time around, then immediately go to the stage as outlined above.

[100]       President’s Email to Supervisor is not consistent with the Respondents’ position that the process was collaborative. Supervisor was acting on President’s directions, and President’s view was that it was not worth the effort to try to come to a common understanding, but that the Document would be in Employee’s file whether he agreed with the contents or not.

[101]       On August 31, 2018, after the work deadline they had previously discussed, Employee emailed Supervisor to ask whether he had to go back to the issue of the Document. Supervisor replied and asked Employee to meet him the following week to discuss the final copy. Employee responded and said:

I will not sign this document without legal consultation in anycase. You may inform [President] and tell him to fire me if he wants. [reproduced as written]

[102]       Supervisor responded and said he was really confused because they had not discussed anything yet, and asked Employee if he was saying he did not want to proceed with the process. Employee replied and said that no matter what the final version of the Document would look like, he would not sign it without legal consultation. Supervisor responded to say that he would conclude the report on his own without Employee’s signature and would use the last edited version with a note that Employee refused to sign the Document. 

[103]       In summary, the Document process was a disciplinary one that caused Employee to reasonably fear for his employment. This was an adverse impact in employment.

2.      The Document process was degrading and demeaning

[104]       The Respondents also made the issue about more than the concerns Employee raised with Supervisor and President about their soccer fan comments. They did not focus on whether it was appropriate for Employee to raise his concerns in the manner that he did, or how to address his particular concerns. Instead, in various drafts of the Document they directed Employee to tolerate any comments others made about Iran even if they were offensive. This went beyond directing and managing Employee’s conduct in the workplace to trying to direct and manage his perspective and emotional reactions to others’ comments about Iran. They directed him to read dissenting voices on Iran and report his findings to Supervisor monthly. They suggested to Employee that he did not fit in at the Company and did not understand basic Canadian values like freedom of expression and directed him to sign the Document agreeing with this perspective. Telling Employee that he was so far off base that he must not understand basic Canadian values, and directing him to change his personal perspective, went well beyond appropriate workplace management and was degrading and demeaning.

[105]       The Respondents did not need to agree that Employee’s concerns were valid, or even understand his perspective, to respond to his concerns in a manner that would not have been an adverse impact. In response to the complaint the Respondents maintained that Employee’s concerns made no sense because their comments about the soccer fans were innocuous and were about the game of soccer, not about Iran as a country or Employee personally. Even with this perspective, there was no reason for the Respondents to suggest to Employee that he did not fit in and did not understand basic Canadian values simply because they did not understand where he was coming from and were confident that they had done nothing wrong. Doing so deeply hurt and scared Employee and was an adverse impact in employment.

[106]       When Employee and Supervisor met on July 3, 2018, Employee says Supervisor implied that if he thought that the email he sent to President about his concern was acceptable, he could go back to Iran because there is freedom of expression in Canada. Supervisor says he never told Employee to go back to Iran, but he acknowledged that he may have said something along the lines of “we cannot do this in Canada, we cannot do this at [Company], because we need to adhere to the Charter of Rights and Freedoms.” This is consistent with the first draft of the Document, which says that we encourage diversity of thought in Canada, and any attempt at censure is an affront to this value, and references freedom of speech.

[107]       Employee understood Supervisor’s comments on July 3 as conveying that Employee’s concerns might make sense in Iran but do not make sense in Canada. Employee reasonably understood Supervisor as implying that if Employee did not understand, he did not fit in here. Supervisor believed that Employee was asking for a degree of “filtering” that, in Supervisor’s view, we do not do in Canada and sought to convey this to Employee. The impact of Supervisor saying that in Canada we do not “censor” or “filter” to the degree that he understood Employee to want, was that Employee felt he did not belong here. Supervisor treated Employee like an outsider who did not understand Canadian values and does not belong in Canada or at the Company.

[108]       Employee found it very offensive and disturbing that Supervisor felt the need to tell him that diversity of thought is encouraged in Canada, because this implied that he is an outsider who did not understand this. Employee felt that Supervisor’s view was that he did not understand that he was in Canada and not Iran. Employee was similarly offended by the implication that he did not understand freedom of expression or censorship. Employee explained that he participated in activities fighting against censorship in Iran and was attacked by police for his participation in these activities, and it was very disturbing to him that Supervisor felt the need to explain that Canada values freedom of expression. He felt that Supervisor portrayed him as a “cultural misfit” in Canada.

[109]       Employee found the “Steps to improvement” in the various drafts of the Document confusing and offensive. He did not understand how Supervisor, who is a computer programmer like him and not a psychiatrist, could suggest such ways for him to “improve”. Employee explained that he has some anxiety and communication struggles, which he had spoken to Supervisor before as if Supervisor was a friend, but he did not understand why the Document referenced those issues.

[110]       Overall, on reading the first draft of the Document, Employee was hurt, confused, and felt he was perceived as a “cultural misfit” who did not have an open mind and was not fit to live in Canada. This did not accord with Employee’s view of himself, which was that he had lived and interacted with people of diverse religions and beliefs, talked about various issues with diverse people, and was open-minded.

[111]       This was demeaning treatment that continued throughout the Document process even though Employee raised his concerns about the process with Supervisor.

[112]       When Employee and Supervisor met again on July 6, 2018, to discuss the first draft of the Document, Employee wanted to convey to Supervisor that the comments about the Iranian soccer fans on June 25 were not the first time others said something related to Iran that bothered him. Employee told Supervisor that Supervisor had made a comment in the past that was not considerate. Employee was referring to the time when Supervisor made a comment about Iran’s involvement in killings in Lebanon, which Employee says happened in 2017, although he did not tell Supervisor the details of the conversation. Employee also had a previous experience in mind of another person making offensive comments about Iran when he was in university, but he did not tell Supervisor about those conversations. Supervisor told Employee that he should raise concerns like this immediately when they come up and not wait, and Employee said to Supervisor, “I think you are Islamophobic”. Supervisor was offended and told Employee that he had created a prayer space at the Company for another Muslim employee, and his own family was half Muslim. Employee apologized, but distinguished between calling Supervisor an Islamophobe and saying that he thought Supervisor was being Islamophobic.

[113]       Supervisor recalls this conversation being part of his discussion with Employee on June 25 when Employee first raised his concern about Supervisor’s comment about the Iranian fans. I find it is more likely that this conversation happened on July 6 after Employee received the first draft of the Document. This matters because Supervisor refers to this conversation in his submissions about why the Document process was justified, but I find that the Respondents had already set the process in motion by the time this conversation occurred.  

[114]       Employee and Supervisor were stuck in a significant misunderstanding by the time of their July 6 meeting. The Respondents believed that Employee had overreacted to innocuous comments about the soccer game and Supervisor was trying to address this apparent overreaction through the Document. Employee felt that the Document was an attempt to silence him about any concerns he may have at any point about comments others made about Iran in the workplace. He felt that the Respondents believed he did not understand what type of expression and censorship are appropriate in Canada, and that he had no choice but to resolve the issue with Supervisor through the Document if he wanted to keep his employment. Employee tried to explain why the Document was problematic to him by explaining that Supervisor had previously made a comment about Iran that concerned him. Employee tried to convey that he felt Supervisor was being Islamophobic, and Supervisor understood Employee as calling him an Islamophobe and became defensive. Supervisor did not understand Employee’s concern about possible broader implications of the Document and carried on with the Document process.

[115]       Supervisor was not able to appropriately respond to Employee’s concerns. Instead, he continued to tell Employee that his perspective was not valid. As Employee put it in his evidence, Supervisor repeatedly conveyed to Employee that his perspective was “nonsense” or “stupid and crazy”. For example, on July 8, 2018, when sending him the second draft of the Document, Supervisor told Employee that there was an issue with his level of tolerance to any negative comments about Iran, and questioned whether Employee could have a productive discussion about Iran with others who do not share his views. In this draft of the Document Supervisor said that Employee viewed any negative comments towards Iran as an insult towards his background, culture, and person, and that his perspective was valid only if he did not impose it on others or assume others shared it. In the “Steps to improvement”, Supervisor directed Employee to learn how to tolerate negative comments directed at Iran and encouraged him to read dissenting voices on Iran written by Iranians to broaden his horizons. Employee understood Supervisor as setting out a requirement for Employee to stay silent and suffer because, in Supervisor’s view, Employee’s perspective was nonsensical and the culture in Canada required him to keep it to himself no matter what.

[116]       In an email on July 10, 2018, Employee told Supervisor that he wanted to focus on his work and that he had no interest in changing his personal views:

Before I write about what I still want to be changed, I need to point out that at work I need to focus on my job and in personal line I need to focus on improving the quality of my life. I have no interest or intention to engage in political dicsussions, read more political news or spend time and energy to change my boundry on Iran (which is when a negative point is brought up by a person, with a tone or facial expression that I feel like they redicule my nation or intend to embarrass me). For the time being, I choose to avoid all discussions on politics, religion, etc especially in the workplace and in particular about Iran.

About the document:

In number 4 of points to discuss: Please take out the phrase: "even when the comments made by the person of another culture seems to offend one’s pride." Since my view is this: we have every right to react within the limits of laws of the society that we live in (Canada) when a comment offend over pride.

Number 3 Steps to improve: Please take it out. I don’t want to waste time on reading more unfortunate politlcal stuff that already make me unhappy. I don’t want to engage in discussing sensitive topics with my coworkers.

The points in the document about anger management and bottled up anger are the "only" source of the problem as I don’t think I am any more sensitive on my country of origin than an average person is. Having them are sufficient and I work seriously toward solving this emotional issue. However I ask not to be tested on purpose, since changing the way that I react to the anger emotion will take some time.

I am really sorry for the trouble that my email to [President] has caused.

Thanks for your consideration. [reproduced as written]

[117]        Supervisor responded and again told Employee to change his personal perspective:

Bear in mind that intolerance is an attitude not an act. You may never act on this intolerant attitude for many years, but the reality is that this attitude has harmed yourself and people around you, and will continue to do so unless we find a solution to this.

I think we’ve arrived at the crux of the problem, your perspective of what constitutes a personal attack does not agree with most people’s definition of personal attack. Both [President] and I were bringing up news story regarding Iran, which was not a personal attack, but was considered one. Your refusal to even hear dissenting voices on the topic of Iran is further documented proof that you’re intolerant to world views that does not agree with yours. Like I said we are all intolerant of something, I consider myself intolerant to Donald Trump, but not to the degree that I want to shut out any mention of him and his actions.

I really believe this is a really sensitive subject for you, but after 6 years of living in Canada and resenting anyone who ever brought up negative things against Iran, isn’t time that you take a look at this attitude and evaluate if it’s really productive ?

I want to help, and I can’t relabel the intolerant attitude any other way. I can’t even remove it from our conversation/report because it was self evident in the actions you took out in the open and in front of me. Now I’m asking you to do your part, do you have another suggestion on how we can improve upon this intolerance that doesn’t include shutting people out ? [reproduced as written]

[118]       In this email Supervisor made it clear that the issues he sought to address with Employee went well beyond reasonably addressing a workplace issue. Employee and Supervisor had different perspectives on the comments about Iranian fans and whether they were appropriate workplace discussion, and Supervisor did not understand Employee’s perspective, but Employee did not accuse Supervisor or President of “personal attacks”. Supervisor also reiterated his view that Employee was intolerant and said that Employee’s “refusal to even hear dissenting voices on the topic of Iran” was further proof of this. Supervisor continued to convey that it was his role to help Employee change his attitude and become more tolerant to “dissenting views” at a level acceptable to President, Supervisor, and the other leads. Supervisor also said in this email that Employee refused to even hear dissenting voices on the topic of Iran even though Employee had explained that his boundary is others bringing up negative points about Iran with a tone or facial expression that he feels signifies intention to ridicule Iran or embarrass him. This was degrading and demeaning conduct. 

[119]       In summary, the Document process was an adverse impact in Employee’s employment because the process was disciplinary, and went beyond reasonable conduct arising from management of the workplace to the point that it was degrading and demeaning. 

C.     Employee’s place of origin was a factor in the adverse impact

[120]       Supervisor submits that Employee being from Iran was not a factor in the Respondents’ conduct. Supervisor says the Respondents needed to address Employee’s issues about others’ comments about the Iranian fans and help him process his strong emotions so leads and other employees would not have to walk on eggshells around him. Supervisor says Employee’s place of origin was only part of the conversation because he had to try to navigate potential clashes in the future based on Employee’s deeply held beliefs, and that he tried to affirm Employee’s beliefs in his drafts of the Document.

[121]       President and Company submit that discussion of Iran only arose because Employee brought it up in the first place, forcing Supervisor to respond. They say Employee took any and all mentions of Iran as negative, no matter how positive they were, and that his negative interpretations led to accusations of others that needed to be addressed. They submit that President’s Email was a positive comment about the Iranian fans’ conduct, not a negative one, which he sent because the fans’ tactics reminded him of German fans’ actions at a world cup in 1954, but Employee misinterpreted it because it was related to Iran. 

[122]       I find Employee has established that his being from Iran was a factor in the adverse impact in two ways. First, Employee has established an inference that his being from Iran was a factor in the Respondents’ strong reaction to his concerns. Second, Employee has established that the Respondents’ reaction was particularly harmful to him because of his experiences as an Iranian person.

1.      Employee has established an inference that his being from Iran was a factor in the Respondents’ reaction to his concerns

[123]       A finding of discrimination based on an inference that Employee being from Iran was a factor in the adverse impact must be grounded in evidence of how Employee being from Iran factored into the Respondents decisions or how they treated Employee. I need to consider Employee’s conduct that the Respondents addressed, and their explanation for how they addressed his conduct, within the broader social context, to decide whether his being from Iran was a factor. 

[124]       I must assess Employee’s complaint within its broader social context to understand his allegations and give meaning to the purposes of the Code, including “to identify and eliminate persistent patterns of inequality associated with discrimination”: Perry v. Honu Boat Charters and another (No. 2), 2022 BCHRT 68 at para. 67; Code, s. 3. This broader context includes persistent stereotypes that immigrants to Canada, particularly those whose names, accents, appearance, and culture are noticeably different from white settlers in Canada, have less of a right to exist here: Perry at paras. 72-73. These stereotypes may also involve assumptions that a person perceived as an outsider is manipulative – for example, that they are “playing the race card” to suggest mistreatment that does not exist – which delegitimizes the person’s experiences: Perry at para. 75. 

[125]       I do not find that Employee’s place of origin was a factor in the adverse impact just on the basis that his concerns related to comments about Iranian soccer fans and he is from Iran. Employers need to address issues that arise that may impact the workplace, and generally direct and manage their employees. If an employee raises workplace concerns that are somehow related to the employee’s place of origin, or another protected characteristic, it is possible for an employer to respond to the concerns in a neutral way so that a protected characteristic is not a factor in any adverse impact.

[126]       The content of the first and second drafts of the Document support an inference that stereotypes about Iranian people informed how the Respondents treated Employee. I do not accept that the Respondents would have had the same concerns or used the same language with an employee who was from Canada or from a country the Respondents perceive as having values more similar to Canada. Stating that in Canada we encourage diversity of thought and respect others’ feelings, and that any attempt at censure will be viewed as an affront to this shared value, implies that it was necessary to tell Employee this because the Respondents thought he did not know or understand this already. This is also the case for the statement that living in a multicultural society demands awareness and tolerance by not imposing one’s pride in their birth country and cultural background on others. Directing Employee to improve his tolerance towards different perspectives by talking to others who do not share his view of the world assumes that he did not already know how to do this and was not tolerant of different views. It is more likely than not that the Respondents held underlying beliefs about Iranian people having different values, and assumed Employee’s understanding and values were problematic on this basis. 

[127]       The second draft of the Document says Employee would learn how to tolerate negative comments directed at Iran and learn the difference between personal attacks and political discussions and encouraged him to look at political discourse in Canada and other countries and read dissenting voices on Iran. This assumes that Employee held views about Iran that were not compatible with others’ views in the workplace and could not tolerate others’ views, did not know the difference between a political discussion and personal attack, and did not already read about different perspectives of Iran and political discourse generally. Supervisor also reiterated in an email to Employee that he needed to expand his tolerance of others’ views.

[128]       The Respondents’ assumption that Employee did not understand Canadian values and needed to be educated was more likely than not based on stereotypes of Employee as a person from Iran who raised concerns that they did not understand. As Employee put it in his evidence, the Respondents assumed that his perspective was “nonsense and crazy”. They did not try to understand why Employee was bothered, but assumed that he was not capable of understanding, or even tolerating, other points of view. In his cross-examination Supervisor acknowledged that his “kind of cheating” comment was meant as ridicule of the Iranian fans, but he could not understand why Employee would be personally bothered. The Respondents jumped to conclusions that Employee’s perspective was nonsensical, he was not capable of understanding other perspectives, he was lashing out, his actions were toxic, and he was making unreasonable demands. The suggestions in the Document drafts for how Employee should “improve” support an inference that Employee being from Iran was a factor in the Respondents jumping to these conclusions.     

[129]       Employee testified that when Supervisor spoke to him on July 3, 2018, Supervisor said that he would not have been insulted in Employee’s place, and he was working on his own accent. Employee says Supervisor said that if someone insults Iran that they are not insulting Employee personally, and “your country is not you”. I accept Employee’s evidence that he took this to mean that Supervisor did not have strong emotions tied to his home country and wanted Employee to similarly let go of any strong emotions related to his Iranian background. There was no reason for Supervisor to tell Employee how he would have responded in a similar situation or how he was working to fit in himself other than to imply to Employee that he should conduct himself the same way. This supports an inference that Supervisor viewed Employee as not fitting in as well as an ideal immigrant to Canada would fit in, because of his emotions related to his home country.

[130]       While the Respondents may not have been conscious of the stereotypes underlying their response to Employee’s concerns, Employee did understand that the Respondents stereotyped him as someone who had a “nonsense and crazy” perspective on his feelings about Iran and did not understand basic Canadian values. He understood that the Respondents perceived him as not fitting in as an Iranian employee with a different perspective who had the audacity to raise concerns. This is why the Respondents’ reaction, and the Document process, negatively impacted Employee.

[131]       I also find that Employee’s concerns, and his way of expressing them, does not fully explain the Respondents’ decision to address the issue through the Document process. The Respondents’ reaction was disproportionate. I accept that the Respondents needed to address Employee’s concerns and that doing so was not straightforward for them because they did not understand Employee’s perspective, but their response was much more than necessary. This supports an inference that the Respondents’ reaction was not simply about addressing Employee’s concerns.

[132]       When Employee told Supervisor about his concerns on June 25, 2018, Supervisor did not understand the concerns and their discussion became heated. Supervisor viewed Employee as oversensitive, specifically in relation to comments regarding Iran. I do not agree that Employee was oversensitive to all comments related to Iran. Employee’s manner of raising his concerns with Supervisor was also reasonable. If Supervisor was concerned, this was not based on any misconduct on Employee’s part. The assumption that Employee was oversensitive meant that Supervisor was unable to address Employee’s concerns. It was not reasonable for Supervisor to view Employee’s actions as “toxic”, or to conclude that Employee expected a high level of censorship in the workplace that would not be compatible with the workplace culture or Canadian values.

[133]       President’s reaction to Employee’s email was also out of proportion. His strong reaction to Employee’s email supports a finding of an inference that Employee’s place of origin was a factor in his reaction.

[134]       I accept that President did not understand why his email bothered Employee. However, his reaction was not in response to any misconduct on Employee’s part. Employee simply sent a polite and respectful email expressing that comments earlier in the day bothered him, President’s Email did not help, and asking his employer to respect people’s different perspectives in the workplace. It was not proportionate to characterize Employee’s communications as “lashing out”, conclude that following Employee’s “demands” would mean never having news on the TV, conclude that it was necessary to get Employee’s oversensitivity “under control”, or assume that Employee likely also had a healthy insensitivity to any criticism about his work. It was an overreaction to say that Employee’s email was inappropriate and could not be repeated, and that any repeat performance would mean probation, just because President did not understand Employee’s perspective.

[135]       The Respondents’ assumption that Employee had no legitimate basis for his concerns because other Iranian employees were not concerned, supports an inference that stereotypes informed how they treated Employee. Supervisor, President, and the other leads immediately concluded that Employee was oversensitive compared to the other Iranian employees. This suggests that President and Supervisor held underlying beliefs that an ideal Iranian employee, who did fit in at the Company and in Canada, would have taken comments about the Iranian soccer fans in stride, and Employee did not fit that ideal. It is more likely than not that the Respondents’ comparison of Employee to the other Iranian employees, who did not have similar reactions to President’s Email, informed their perspective that Employee was oversensitive and demanding a level of censorship that would not fit the workplace culture.

[136]       I next explain my finding that the Respondents’ reaction and process particularly impacted Employee because of his life experiences as an Iranian person.

2.      Employee has established that his place of origin was a factor in how the content of the Document drafts impacted him

[137]       Discrimination may occur when negative treatment particularly impacts a complainant differently than it might impact others because of the complainant’s protected characteristic: Campbell v. Vancouver Police Board (No. 4), 2019 BCHRT 275 at para. 98.

[138]       In this case, Employee being from Iran was not only a factor behind the Respondents’ decisions and actions, but the degrading treatment also particularly impacted Employee because of his life experiences as an Iranian person in Canada, and demonstrating against censorship in Iran. This is another way in which his place of origin was a factor in the adverse impact.

[139]       Treating someone as if they do not belong in Canada, or in their workplace, because of where they are from, may be an adverse impact on any employee no matter where they come from. In Employee’s case, when the Respondents treated him as if he does not understand basic Canadian values like freedom of expression because he is from Iran, this disturbed and impacted Employee deeply because of his experiences as an Iranian person. Employee does understand and care about values like freedom of expression and he made personal sacrifices to stand up for those values in Iran. Employee testified, and I accept, that he participated in activities to fight against censorship in Iran and was beaten by police for doing this. When the Respondents assumed that Employee personally held values that they associated with Iran, like desiring censorship and devaluing freedom of expression, this especially hurt Employee because of his experiences.  

[140]       The Respondents’ assumption that Employee’s concerns were, as Employee put it, “nonsense and crazy”, and their expectation that he tolerate others’ negative comments about Iran, also delegitimized Employee’s experiences as an Iranian person in Canada.

[141]       Before June 25, 2018, Employee had been on the receiving end of comments about Iranian policies and activities that embarrassed him as an Iranian person. Two of these situations were when he was at university, and one was Supervisor’s comment about Iran in 2017. When Supervisor cross-examined Employee, Employee also testified about another comment Supervisor made at some point before the 2018 world cup game. Employee says there was a bombing in Iran’s parliament, Supervisor was reading about it out loud to Employee and another Iranian employee, and Supervisor laughed and said that a big war was going to start. Employee did not raise this incident with Supervisor at the time or during the Document process, although the comment upset him at the time. 

[142]       The Respondents’ response to Employee raising his concerns suggested to him that he must accept others’ views and comments about Iran, even if there is no reason to make those comments to Employee other than to associate him with Iran’s actions and embarrass him, because there is no scenario in which it would be reasonable to raise concerns. Even if the Respondents initially only meant to address Employee’s reaction to others’ comments about the Iranian soccer fans, the message to him from the Document and his conversations with Supervisor was that if anyone said anything related to Iran that bothered him, he could not speak up.

[143]       This concludes my reasons for finding that the Respondents’ conduct was an adverse impact in employment in which Employee’s place of origin was a factor. Employee has established his case. Next, I explain why I find the Respondents’ conduct is not justified.

D.    The Document process was not justified as a BFOR

[144]       I accept that the Respondents conducted the Document process for a goal rationally connected to the performance of Employee’s job, which was to maintain collegiality in the workplace. I also accept that the Respondents tried to address Employee’s concerns in good faith. Whether the adverse impacts on Employee from the Document process are justified depends on whether the process was reasonably necessary to achieve their goal. Subjecting Employee to the Document process was not reasonably necessary. The Respondents could have addressed Employee’s concerns to maintain workplace collegiality with less impact on him without incurring undue hardship.

[145]       First, conduct or standards based on stereotypes cannot be justified as reasonably necessary to achieve a workplace purpose or goal: R.R. v. Vancouver Aboriginal Child and Family Services Society, 2025 BCCA 151 at paras 167 and 176. I have found that the Respondents’ conduct was at least partly based on stereotypes about Employee as an Iranian person in Canada, including that he needed to be educated to fit into the workplace culture. The Respondents cannot justify disproportionately reacting to Employee’s concerns based on assumptions about him because he is from Iran. Even if the Respondents did not mean to make assumptions about Employee and did not realize that they were overreacting to his concerns based on stereotypes, it is an employer’s responsibility to make efforts to address workplace concerns in a manner that is not based on stereotypes to avoid a discriminatory impact.

[146]       The Respondents also cannot justify the degrading and demeaning treatment. It is not possible to justify going well beyond workplace management into matters of Employee’s personal beliefs by, for example, directing him to read more dissenting voices about his home country, or to tolerate other people’s negative comments about Iran even if he understands the comments to be ridiculing or embarrassing.  

[147]       Jumping to conclusions that Employee did not understand concepts like freedom of expression, instead of attempting to understand his perspective and the reasons for his concerns, also did not help the Respondents meet their goal of addressing Employee’s concerns. The Document, particularly the parts of the first two drafts suggesting that Employee did not understand Canadian values and was not able to tolerate different points of view, intensified Employee’s concerns rather than address them.

[148]       Supervisor submits that the Respondents’ actions were necessary to address Employee’s issues that arose on June 25, 2018. Supervisor says that Employee’s reaction to his and President’s comments, and Mr. S’s reaction to the news about the Iranian fans, was out of proportion, and if this were not addressed with Employee it would be necessary to walk on eggshells around him, which would negatively affect Employee’s working relationships with others and overall morale at the Company. Supervisor says that for the Respondents to address Employee’s concerns as he requested, they would have had to create a policy that would have put undue pressure on all other employees to avoid triggering Employee’s sensitivities verbally or by email, which could potentially have triggered discrimination complaints from others.

[149]       President testified that it was necessary to investigate Employee’s potential anger over President’s Email, and that Employee later acknowledged his anger during his conversations with Supervisor. President said that it was necessary to come to a mutual resolution to Employee’s anger and make sure it did not spread through the Company, which would affect their ability to meet deadlines. President says the process was for everyone’s benefit, including Employee’s, because if the Company did not meet deadlines, clients would not pay, and that would affect all employees.

[150]       The Respondents could not justify the negative impacts on Employee from the Document process even aside from the crucial issue that they stereotyped him and went beyond conduct related to reasonable management in the workplace. They have not established that their only option to avoid the adverse impact on Employee was to enact a policy that would negatively impact everyone else at the Company. Even if the Respondents believed that Employee was overly concerned about innocuous comments that were consistent with the workplace culture, they did not have to react as they did to address the issue and avoid an impact on others in the workplace or the general workplace culture. They have not established that it was necessary to take a disciplinary approach to addressing Employee’s concerns and essentially bring him in line, causing him to fear for his job security. They could have addressed Employee’s concerns without engaging him in the Document process, and did not try to do so in a way that was less reactive, such as by talking to him to try to understand his concerns, explain their own perspectives, and give him information about what sorts of comments and conduct were acceptable in the workplace.  

[151]       Supervisor submits that it was necessary to address Employee’s lingering issues from comments about Iran that another person subjected him to in university. Supervisor says that at the time Employee said that his issue with the other individual at university was not resolved, and this suggested to Supervisor that Employee had a pattern of unresolved anger. However, this was not what the Respondents were trying to address with the Document. Supervisor engaged in the Document process with Employee to follow President’s direction to address Employee’s reply to President’s Email.

[152]       There is no evidence that Supervisor was aware of Employee’s experiences at university before he engaged Employee in the Document process. Employee says he did not specifically talk about his experience at university with Supervisor. Whether he did, does not matter. I have found that Employee raised Supervisor’s 2017 comment about Iran with Supervisor on July 6, 2018, after Supervisor gave Employee the first draft of the Document. Employee did not make Supervisor aware of any “lingering concerns” before this point.

[153]       Before the start of the Document process Supervisor believed that Employee had “lingering resentment” against another Employee at the Company, but did not have any basis for a concern that Employee had unresolved anger from experiences before he was at the Company. On June 25, 2018, before President’s Email, Employee was only concerned about Supervisor’s “kind of cheating” comment. He was concerned about the comment itself and Mr. S’s reaction to it. By the time Supervisor gave Employee the first draft of the Document he had confirmed that Employee had resolved his concern about Mr. S’s reaction to the news story through a brief conversation with Mr. S. The concerns Employee raised on July 6 were in reaction to the Document. 

[154]       In any case, even if the Respondents had known that comments Supervisor and the individual at university made in the past still bothered Employee, this would not justify their insistence that he refrain from raising similar concerns again. The Respondents do not suggest that they considered other ways of addressing Employee’s concerns to maintain a collegial workplace.

[155]       Supervisor relies on evidence from Mr. S that Employee was an awkward communicator, and that it would take people a few tries to communicate with and understand Employee, to suggest that the Document process was the only way to get through to Employee. This submission is not persuasive in the context of the Respondents making no effort at all to understand Employee’s concerns before addressing the Document process. Supervisor spoke to Employee on July 3, and Employee says they may have had a second similar but shorter conversation on July 4, but I do not find that Supervisor made efforts to understand Employee’s perspective during any conversation. In any case, by July 3, President had already decided that Employee had to agree to and sign a “reality check” document and that if there was a repeat offence the only other option was probation.

E.     Conclusion on discrimination

[156]       I find that the Respondents discriminated against Employee contrary to s. 13 of the Code.

[157]       At the outset of the hearing and throughout the process, the Respondents were incredulous at the suggestion that they may have discriminated against Employee, because they never intended to do so. Employee’s counsel explained after the Respondents’ opening statements that the case is not about intention but is about the impact on Employee.

[158]       In the Leads’ Email Chain and in the course of the Document process the Respondents said that Employee should raise concerns about comments that bothered him directly with the people involved. This is exactly what Employee did in the first place when Supervisor’s and President’s comments about the Iranian soccer fans bothered him. Despite having no intention to discriminate, the Respondents reacted defensively because they did not understand Employee’s concerns or relate to his perspective. They assumed that Employee was oversensitive to any comments related to Iran.

[159]       In response to Employee’s concerns, the Respondents engaged him in the Document process, which was an adverse impact in employment because it was a disciplinary process and because the Respondents’ conduct was degrading and demeaning. Employee being from Iran was a factor in the adverse impact because the Respondents stereotyped him, and because the Respondents’ negative treatment particularly impacted him as an Iranian person. The Respondents’ conduct was not justified because it is not possible to justify stereotypes or degrading and demeaning conduct, and in any case, it was not necessary to engage in a process like the Document process to respond to Employee’s concerns. This led to a finding of discrimination.

F.      President and Company are responsible for remedying the discrimination

[160]       President and the Company submit that Supervisor is solely responsible for any discrimination. President says his only direction to Supervisor was to resolve any anger issues Employee had about President’s Email in a manner that was positive for all parties. President says he was not involved in Supervisor’s discussions with Employee or the wording of the various drafts of the Document, and that any discussions of cultural differences between Canada and Iran are not related to the Company’s business. President says the Company makes video games, including many sports-related games, and his email about the world cup soccer game was a normal and important aspect of this work and of interest to everyone at the Company. He submits that any statements Supervisor made in the drafts of the Document or elsewhere that are found to be discrimination were completely outside of Supervisor’s job description and the Company’s business.

[161]       I find that the Company is responsible for the discrimination under s. 44(2) of the Code.

[162]       I have found that the Respondents’ reaction to Employee’s concerns, and the Document process that came out of their reaction, was discriminatory. The discrimination is not limited to discrete statements Supervisor made or specific words in the Document drafts. Rather, Supervisor’s meetings with Employee and the content of the Document drafts are evidence supporting a finding of discrimination.

[163]       For his part in the discrimination, Supervisor was acting within the scope of his authority as an employee of the Company. President’s strong reaction to Employee’s email was the basis for his direction to Supervisor to deal with Employee, and this direction was the basis for Supervisor’s interactions with employee and the Document drafts. This makes the Company responsible. 

[164]       I find it does not further the purposes of the Code to order Supervisor to fulfill a financial remedy for the discrimination.

[165]       The first factor to consider from Daley is the Company’s capacity to fulfill any remedy that the Tribunal may order. This is a neutral factor in this case. The Company and President did not enter evidence or make submissions about this factor, so there is nothing before me about the Company’s ability to fulfill a remedy.   

[166]       The second factor from Daley to consider is whether the Company acknowledges the discrimination as its own conduct and acknowledges a responsibility to fulfill any remedial orders. I also find this to be a neutral factor.

[167]       The Company does not acknowledge the discrimination as its own conduct and does not acknowledge any responsibility to remedy it. At this stage, however, I have found that the Company is responsible for the discrimination under s. 44(2) of the Code because Supervisor was acting within the scope of his authority. Since I order the Company to remedy the discrimination in any case, Company’s position on the issue does not weigh in favour of also holding Supervisor responsible.

[168]       The third Daley factor is the nature of the conduct. This factor weighs against ordering Supervisor to remedy the discrimination.

[169]       Supervisor’s actions took place in the regular course of his employment. President directed Supervisor to resolve the issue with Employee, and Supervisor tried to do that. Supervisor was planning to speak to Employee again about the concerns Employee raised about the “kind of cheating” comment and Mr. S’s reaction, but Supervisor did not intend to have Employee sign anything until President directed him to do this as part of his job. The various drafts of the Document and Supervisor’s discussions with Employee after June 25, 2018, all happened in the course of his following President’s directions to deal with the issue.

[170]       Supervisor was not the directing mind behind the discrimination and did not have a substantial influence over the action taken. In an email to the other leads, Supervisor said he would follow up with Employee to make sure he had no lingering hard feelings with Mr. S, then would report back. In response, President suggested Supervisor was “making excuses” for Employee. President said that Employee’s email to him was inappropriate and could not be repeated, and directed Supervisor to sit Employee down and tell him that President’s Email did not offend the other Iranian employees. Supervisor responded that he did not find Employee’s email to President to be inappropriate, and that Employee was respectful even if he was agitated. President then directed Supervisor to have Employee sign and agree to a “reality check process” based on President’s view that Employee’s email was not appropriate and said that probation was the only option in case of a “repeat performance”.

[171]       Supervisor wrote the drafts of the Document and chose his words when speaking with Employee about the issue, but he did this based on President’s directions, which President set out in the Leads’ Email Chain. Addressing Employee’s reaction and response to President’s Email, particularly in comparison to other Iranian employees at the Company, for the purpose of getting Employee’s perceived oversensitivity under control, was President’s decision.

[172]       Finally, I find that Supervisor’s conduct does not have a measure of individual culpability. I have accepted that Supervisor genuinely wanted to resolve Employee’s concerns in a collaborative way. He did not know how to do this.

[173]       President directed Supervisor to deal with Employee’s concerns and ensure that Employee would not raise similar concerns again, but did not equip Supervisor with any tools or training for addressing workplace concerns like Employee’s. President’s expectation was that Supervisor would keep Employee and his concerns under control. This expectation caused Supervisor stress, and his way of dealing with this was to try to get Employee in line with President’s expectations and directions. Supervisor adversely impacted Employee as a result. This is not the type of conduct that calls for individual culpability.

[174]       I find that it does further the purposes of the Code to order President to remedy the discrimination along with the Company.

[175]       I said above that there is no evidence before me about the Company’s capacity to fulfill any remedies, that the Company does not acknowledge the discrimination as its own conduct, and that these are neutral factors.

[176]       I find that the nature of the conduct weighs in favour of ordering President to remedy the discrimination. There is no doubt that President was acting as an agent for the Company when he directed Supervisor to deal with Employee, but I find that President was the directing mind behind the discrimination and that his conduct has a measure of individual culpability. These factors weigh in favour of an order that President remedy the discrimination. 

[177]       President testified that he did not get involved in the Document process between Supervisor and Employee because he had a lot on his plate as President and CEO of the Company and he does not have time to micromanage. He says he trusted Supervisor, who had no complaints against him after 15 years at the Company, and that he trusted Mr. R as an experienced manager. President says he got periodic updates about Supervisor making progress, but he has not explained why he did not know that Mr. R was not involved. He also says that he gave Supervisor directions to deal with the issue, then let it go and thought it was all done and dusted. He says he invited Employee to the Company Christmas party and Employee came and ate the free food, and he thought everything with Employee was fine. He says he could have put Employee on a 90-day probation but did not, he did not pressure Employee to sign the Document, and he believed everyone had moved on from the issue.

[178]       President’s evidence about his lack of personal responsibility for the Document process is not credible and his submissions are not persuasive.

[179]       I explained above that President was not a credible witness and that I do not accept any of his evidence that is not supported by other evidence. Even without that overarching issue impacting the reliability of his evidence, I would find that his evidence about the Document process was not sincere. He testified that he had no responsibility whatsoever for the Document process as if the Leads’ Email Chain did not exist, and he did not acknowledge or address that Supervisor acted on his directions.

[180]       President did not address the fact that the only acceptable outcomes for him were for Employee to agree with his perspective and sign a “reality check” document or have the Document placed in Employee’s file, and did not acknowledge that he viewed Employee’s email as inappropriate to the level that a repeated offence would mean probation. In cross‑examination, Employee’s counsel asked President whether he was concerned enough about Employee’s email that he wanted certain follow up actions taken. President denied this and said he did not have concerns, he had questions. This is not at all consistent with his emails in the Leads’ Email Chain. When counsel asked President whether he was concerned enough that another similar email from Employee would warrant probation, President denied this and said he only said in his email to Supervisor that they should be open to all possibilities if things were to go in a wrong direction. He reiterated that he did not put Employee on probation although he could have. This is despite saying in his June 27, 2018, email in the Leads’ Email Chain, “We can not have a repeat performance. If it happens again, the only solution at that point is probation.” His evidence was evasive in an effort to avoid any personal responsibility.

[181]       The process Supervisor engaged in with Employee followed President’s strong reaction to Employee’s email, observation that Employee reacted differently from other Iranian employees, direction that Employee sign a reality check document, and statement that any repeat offence would lead to probation. President also gave Supervisor further directions to place the unsigned Document in Employee’s file if Employee refused to sign it, and not to collaborate so much in similar situations in the future. President would have had Supervisor put the first or second draft of the Document in Employee’s file without regard for exactly what it said as long as it stated that Employee’s email was not appropriate and that he would not repeat his conduct.

[182]       President’s conduct does not have the same measure of individual culpability as I would find in cases of harassment or other intentional discrimination, but I find that there is a degree of carelessness to President’s actions that warrants some individual culpability. President is in charge at the Company. He strongly overreacted to Employee’s email and decided that Employee must be put in his place with a “reality check” because he raised a concern when the other Iranian employees did not. Supervisor was under pressure to resolve the issue with Employee in an amicable way; President created the pressure and did so with no regard for how this might impact Employee.

[183]       For these reasons, I find President responsible, along with the Company, for remedying the discrimination. I set out the remedies ordered for discrimination and retaliation at the end of my decision after I explain my reasons for finding that the Company retaliated against Employee by terminating his employment.

V       Retaliation analysis

A.    Background to retaliation allegations

[184]       The Company made yearly versions of a sports-themed game [Game] for a certain client [Client]. Mr. R was the producer for the Game as well as other projects. Mr. S was the lead programmer for the team working on the Game. Employee worked on this team with Mr. S and two other programmers, Ms. L and Mr. L. Employee’s salary was $65,000 per year at the time of termination.

[185]       Employee filed the discrimination complaint against the Company on November 29, 2018. On December 10, 2018, the Tribunal notified the parties that the discrimination complaint would proceed. The Respondents filed their response to the discrimination complaint on January 14, 2019.

[186]       On or about January 28, 2019, Employee asked to have February 14, 2019, as a day off. His request was denied.

[187]       On February 7, 2019, Mr. R and Supervisor met with Employee to terminate his employment. Employee says they told him there was a shortage of work at the Company and that his termination was part of a Company-wide layoff. Employee says he did not believe there was a shortage of work, and he told Mr. R that he would file a retaliation complaint.

[188]       Employee testified that in early February 2019, several days before the Company terminated Employee’s employment, representatives from Client came to the Company for a meeting with management. Employee believes that the Company learned at this time that it would be making the next version of the Game, and President decided to fire Employee before this was widely known so he could use shortage of work as an excuse.

[189]       President testified that Client did not come to tell the Company that the next version of the Game would go ahead, but came to tell the Company that Client’s head office wanted to cancel the project entirely because the Client’s revenue from the 2019 version had dropped significantly over the 2018 version. President says this visit happened sometime before the end of January 2019. He says that after several hours of discussions, the Client representatives said they were trying to get a smaller 2020 version of the Game approved for the Company to start work on later in 2019, but there were no guarantees, and they would let the Company know by the end of January. President says employees were not privy to this information at the time.

[190]       In any case, the Company worked on both the 2019 and 2020 versions of the Game after Employee’s termination. President says the contract with Client required fewer programmers working on the 2019 version by that time, and only one programmer working on the 2020 version, and he knew by fall of 2018 that the Company would have a $71,000 loss in the fiscal year ending on March 31, 2019, so it was necessary to lay off a programmer. President says it made sense to lay Employee off instead of another programmer because of Employee’s level of education, experience, performance, and seniority at the Company.

[191]       In the next section of my decision, I explain why I find that a reasonable complainant apprised of the facts at the time can reasonably have perceived the Company to have terminated Employee’s employment in retaliation.

B.     There is a connection between Employee’s discrimination complaint and the termination of his employment

[192]       There is no dispute that the Company terminated Employee’s employment about two and a half months after he filed the complaint, and three weeks after the Respondents filed their response. This timing supports an inference of a connection between the termination and the discrimination complaint. The Tribunal explained this in its decision denying the Company’s application to dismiss the retaliation complaint and explained that the circumstances required an explanation from the Company to rebut this inference: Employee v. Company, 2020 BCHRT 178 at paras. 30-35.

[193]       My decision on the retaliation allegation depends on the Company’s explanation for terminating Employee’s employment and its evidence in support of that explanation. I must decide whether a reasonable complainant apprised of the facts at the time of the termination can reasonably have perceived the Company to have terminated his employment in retaliation: Gichuru at para. 58. If the Company’s alternative explanation and evidence are not persuasive, a reasonable complainant would reasonably perceive the termination to be retaliatory based on the timing.

[194]       The Company says Employee was laid off because fewer resources were needed for the project he was working on, and there was a drop in revenue. Employee was the only programmer who was let go; President’s evidence was that this was because Employee had the lowest seniority, least experience, worst performance record, and fewest academic qualifications.

[195]       The Company introduced some documentary evidence in response to the retaliation allegation, but its case largely depends on President’s testimony. President is the head of the Company and the decision to terminate Employee’s employment was his alone. His credibility was essential to the Company rebutting the inference that arises from the timing. I find that President is not a credible witness. I do not accept that the Company needed to terminate one programmer’s employment at the time it did for financial and workload reasons, and I do not accept that this simply ended up being Employee because of his seniority, experience, performance, and qualifications.

[196]       Issues that impacted President’s credibility include my finding in the Preliminary Decision that President was intentionally dishonest in an attempt to mislead the Tribunal when he gave evidence in response to an application from Employee to admit certain documents into evidence. I also find that President’s evidence relevant to the retaliation allegation is internally inconsistent, and that evidence from other Respondent witnesses contradicts President’s evidence. I set out my reasons for not accepting President’s evidence about the Company’s reasons for the termination below. Based on the timing and the lack of a credible alternative explanation, I find it is reasonable to perceive Employee’s termination as retaliation for filing the discrimination complaint.

1.      Company’s evidence that it was necessary to terminate two employees’ employment, including one programmer, because of a projected financial loss 

[197]       The Company introduced sworn letters with documents attached from its accountant, Ashwin C. Maharaj, in response to the retaliation allegation. The Company made Mr. Maharaj available for cross-examination, but Employee’s counsel had withdrawn as Employee’s representative by that point and Employee opted not to conduct the cross-examination. I accept Mr. Maharaj’s evidence as accurately representing the number of employees at the Company during the six months before and after Employee’s termination, and the Company’s loss in the fiscal year ending March 31, 2019. 

[198]       Mr. Maharaj says the Company incurred a loss from its business operations of $71,938 for the March 31, 2019, fiscal year. He also says that 29 employees worked at the Company as of August 16, 2018. One computer artist left on August 31, 2018, and one game designer left on November 23, 2018. A second computer artist left on January 11, 2019, so shortly before Employee’s termination there were 26 employees at the Company. Then Employee’s employment was terminated on February 7, 2019, at the same time as the Company terminated a third computer artist’s employment. The Company paid Employee and the third computer artist until February 22, 2019.

[199]       The Company subsequently hired a game designer in May 2019 and a computer artist in June 2019. The Company had not hired another programmer by August 15, 2019. The Company did not introduce any evidence about whether or when it hired any programmers after that date.

[200]       President says that by fall of 2018 he knew that the Company projected a loss of $71,000 for the fiscal year. He says he could have laid off Employee and the third computer artist before Christmas because he knew about the projected loss at that point, but he chose to wait to see if circumstances would change.

[201]       The Company’s evidence about its finances at the time of Employee’s termination does not provide a full enough picture to establish that the projected loss explains Employee’s layoff. I do not accept that the layoffs were a financial necessity simply based on the amount of the financial loss and Employee’s salary. The second computer artist who left in January gave notice of his resignation on December 10, 2018, so by this point in time President knew that the Company would have three fewer employees before the start of the next fiscal year. The Company did not provide evidence about its projections for the 2019 to 2020 fiscal year, so I am not able to make findings about whether having three fewer employees than the Company started with in the 2018 to 2019 year may have made enough of a difference to avoid layoffs if the Company chose to do so.

[202]       The Company’s explanation also is not credible in the context of its evidence about its general approach to layoffs. President’s evidence is that he went to great lengths to avoid layoffs at the Company. He says there have been very few layoffs over 15 years, which is unique in the industry even though the industry is not very high-profit unless a company has its own independent hit game, which the Company did not have. Mr. R’s evidence was consistent with this. Mr. R was not aware of any layoffs before Employee’s and the third computer artist’s during his time at the Company. President also testified that the industry is not very profitable, the Company is always breaking even, and he even went several years without taking a salary for himself at one point in time to avoid layoffs. The Company’s evidence does not establish that it was necessary to make an exception to the Company’s usual practice of avoiding layoffs to terminate two employees’ employment in February 2019.

[203]       The Company also did not introduce any evidence about the number of programmers, or about its finances, beyond the date six months after Employee’s termination. The Company only introduced the financial evidence it did because Employee applied for disclosure of these documents during the hearing, and I ordered the Company to disclose them for this time period. It was the Company’s responsibility to rebut the inference based on the timing and support its explanation for Employee’s termination with evidence. I find that the evidence about the Company’s situation up to August 2019 does not establish that Employee’s termination was necessary or unavoidable. 

[204]       Next, I explain evidence about a Company job posting that I find further undermines the Company’s explanation.

2.      Job posting evidence

[205]       Employee testified about a Company job posting he found online for a programmer position, which is the same position he had at the Company. Employee found the job posting on a website called Eluta through a google search on February 10, 2019, three days after his termination, and saved a screenshot of the posting. Eluta is a website that looks for and picks up job postings from other websites. The posting Employee found on Eluta on February 10 was dated “17 days ago”, which was two weeks before Employee’s termination.

[206]       President extensively cross-examined Employee about this job posting. President suggested that Employee changed the date of the screenshot file to make it look like he found the posting three days after his termination. Employee denied this. I find Employee’s evidence of when and how he found and saved the job posting to be credible and I accept it.

[207]       President put a screenshot of a different job posting to Employee in cross-examination, which is for the same position and uses the same wording as Employee’s screenshot. President’s job posting document appears to be a screenshot of a posting in progress. It says “Status: Privately Published”, “Visibility: Private”, and “Published on: Sep 3, 2018”. It also says it was last edited by President on February 8, 2019, which is the day after Employee’s termination. President initially suggested to Employee in cross-examination that the Company published this posting on September 3, 2018, to get extra help before Christmas. Then President said during his cross-examination of Employee that the posting was never actually published at all, but that he may have been messing around with it on February 8, 2019. Either way, there is no reason Employee would have knowledge of President’s job posting document, or of when or how the Company created, edited, or published the job posting he found online on February 10, 2019.

[208]       I find it is more likely than not that the Company had a job posting for Employee’s position up on the Company website between January 24, 2019, and the day after it terminated Employee’s employment. This undermines the Company’s explanation that Employee’s termination was for financial reasons that President was aware of by fall 2018. 

[209]       President did not give any evidence about either job posting document in his direct testimony. Employee’s counsel questioned President about the postings, and about statements President made about the postings in the Company’s application to dismiss the retaliation complaint, in cross-examination. In the application to dismiss, President said the job posting document he put to Employee was a “Screen capture of the removal from the Respondent’s website of a mobile programmer job ad on February 8, 2019, the day after Complainant was laid off”. In cross-examination President said the Company had the ad up in August 2018 because they thought they may have issues with delivery for Christmas, but they ultimately did not need to hire anyone. He denied that he only removed the posting from the Company website the day after Employee’s termination and said that the February 8, 2019, “last edited” date on the document only reflected that he took the screen capture of the posting on that date. When Employee’s counsel pointed President to his statement in the application to dismiss that the posting was only removed after Employee was dismissed, President said the only thing that was important was that no one was hired, and that sometimes job ads are up and he forgets about them.

[210]       I do not give any consideration to President’s cross-examination questions to Employee where he contradicted himself about whether or not the Company ever published the job posting. President was not giving evidence at that time under a solemn promise to tell the truth, and the contradictions in his questions may be attributed to poor preparation for his cross-examination of Employee. However, the contradictions between President’s statement about his job posting document in the application to dismiss and his evidence at the hearing raise serious questions about his credibility, even aside from the general concerns that arise from my findings in the Preliminary Decision.

[211]       President also did not provide a logical explanation for the job posting document. He did not explain why the job posting would say it was published in September 2018 if he put it up in August 2018, or why the posting was for a full-time position and did not say that it was for very short-term work if its only purpose was to potentially hire help to meet Christmas deadlines. President also testified at the hearing that the Company is unique in that it has a low turnover rate and does not hire and lay off employees based on peaks and valleys in work, and he did not explain why he considered making an exception to hire someone for a short time in this instance. When President cross-examined Employee, he put to Employee that his team was late in meeting a deadline for the 2018 version of the Game in the Christmas season, and Employee agreed there was an issue with that version although he could not recall whether they ultimately missed the deadline or not, but there is no evidence of similar issues with the 2019 version. President did not say when he decided that no help was needed to meet a deadline for the 2019 version around Christmas and took the posting down, or why he would then take a screenshot of an unpublished posting the day after the Company terminated Employee’s employment.

[212]       I find it more likely than not that the Company put the job posting up on the date it says it was published, which is September 4, 2018, it was still up on January 24, 2019, at which time Eluta picked up the posting, President took the posting down on February 8, 2019, and President was deliberately dishonest about having done so at the hearing because having the posting up throughout fall of 2018 is not consistent with his evidence that he knew he would need to terminate Employee’s employment because of the projected financial loss.

[213]       Next, I explain that even if I had accepted the Company’s explanation that it needed to terminate a programmer’s employment in February 2019, I do not accept its explanation that Employee was the logical choice to let go.

3.      The Company’s evidence that it was logical to terminate Employee’s employment because he was the least valuable programmer who worked on the Game

[214]       Mr. Maharaj’s evidence is that gross revenue for the 2019 version of the Game had a contractual reduction of 54%, with average gross monthly revenue dropping 62%, for the seven-month period of January to July 2019 over the period from May 2018 to December 2018. President’s evidence is that the contract with the Client for the Game specified that the team working on the Game would downsize starting in January 2019, and that work on the 2019 version of the Game was pretty much done by November 2018. President says that in early 2018 the Company was also producing another sports-related game that Employee could work on when there was less work to do on the Game, but that project was cancelled in early fall 2018 so was not an option for Employee in early 2019.  

[215]       President says he could have done the layoffs in December 2018 because he knew about the projected loss and that another project to replace the Game would not start immediately, but he did not think it was right to let employees go just before Christmas and he hoped the Company would have another project lined up in early 2019. President says he then learned at the end of January 2019 that the next version of the Game would be much smaller and would only need one programmer, and there was no budget to keep Employee on at that point.

[216]       President says that work continued on the 2019 version of the Game after Employee’s termination and this work overlapped with the 2020 version of the Game, but the contract with the Client required that only one programmer work on the 2020 version. President introduced the credits for both versions of the Game into evidence. For the 2019 version Mr. S is credited as the Lead Programmer. Employee and two other programmers, Ms. L and Mr. L, are credited as Programmers. There are also three “Additional Programmers”. President says an “Additional Programmer” is one who helps out on the project from time to time. For the 2020 version Ms. L is credited as the “Lead Programmer”, and Mr. S and Mr. L are credited as “Additional Programmers”.

[217]       The Company’s evidence does not establish that Employee was the logical choice of programmers to let go based on the changes to work needed for the Game. There is no evidence about revenue from the 2020 version of the Game, whether the change in revenue from the Game over the course of the year was unexpected or different from other years, or whether this change in revenue simply made sense based on the contract with the Client. The Company did not produce copies of its contracts with the Client to show that the Client required the Company to put fewer resources into the Game.

[218]       The Company’s evidence about the Game credits does not support a credible explanation for terminating Employee’s employment. President said the 2020 version only needed one programmer, but he did not explain why there were two “Additional Programmers” credited on the 2020 version and why Employee could not have also been an additional programmer working on this version of the Game. The credits for the 2019 version of the Game are also not consistent with witnesses’ evidence about who worked on that version. Employee says a fourth programmer, Mr. H, worked on his team for the Game. Mr. H is not listed in the credits as a programmer or additional programmer. President asked Employee in cross-examination whether Mr. H only worked on the Game for a short time to help the team, and Employee testified that Mr. H did not work on the project for the entire time but worked on it for more than a short time. Mr. S’s evidence is consistent with Employee’s. Mr. S testified that Mr. H was a regular employee on the team. I accept Employee’s and Mr. S’s evidence that Mr. H regularly worked on the Game for some time. I cannot accept that the Game credits are an accurate representation of who actually worked on the Game, how much each employee worked on the Game versus other projects, or what level of resources was needed for the 2019 and 2020 versions. 

[219]       Employee’s counsel asked Mr. R about the situation at the time of Employee’s termination in cross-examination. Mr. R said that the contract for the Game was dying down, there was no sign it would be renewed, and the Company had taken on more people than they needed. Mr. R then did not respond to a question about usual peaks and valleys in revenue because he said he does not deal with the financial side of the Company.

[220]       Mr. R’s evidence does not assist the Company in establishing a credible explanation for Employee’s termination. President says he did know by the time of the termination that the Company would work on the 2020 version of the Game. Mr. R was not privy to financial information and may not have known when the Game was renewed. I find he did not know enough about the Company’s finances to know whether or not terminating Employee’s employment was unavoidable, or that Employee was the logical choice if one programmer would be terminated.

[221]       Employee believes that President timed his termination when he did because he wanted to let Employee go before the rest of the Company knew that work would continue on the 2020 version of the Game so he could use a shortage of work as an excuse. I am not able to make any finding to that effect, but I do not need to make a finding about President’s motivation for the timing to make my decision. The timing is a basis for an inference of a sufficient connection between the discrimination complaint and the termination in the absence of a credible non-retaliatory explanation, and I find that the evidence about the changing nature of the work on the Game does not support a credible explanation: Gichuru at para. 58.  

[222]       Even if the Company did not need Employee to work on the 2019 or 2020 versions of the Game after February 2019, the Company’s evidence does not explain enough about what was happening at the Company at the time to establish that there was no other work for Employee to do.

[223]       President did not explain what projects Mr. S and Mr. L worked on in addition to the 2020 version of the Game, or what Mr. H worked on if he was no longer working on the Game for the 2020 version. Mr. Maharaj’s evidence also lists six other programmers or software engineers (the parties used these titles interchangeably) who remained at the Company, but President did not explain what projects they worked on. President referred to two other client projects and one internal project in his evidence. He said that there was no additional budget for the client projects to provide work for Employee, and that work on the internal project ended by the time of Employee’s termination, but he did not provide any documentary evidence in support of his assertion. President also testified that one client project had a team of people working on it for four years and that the client expected that to continue, but there is evidence that some programmers were moved from that project to work on the Game at times, and no evidence about the level of work needed on this project at the time of Employee’s termination.

[224]       President also testified that Employee was not capable of working on other projects, and that it would have cost the Company $30,000 to train Employee to work on a different project. President says Employee listed experience on his resume using programs that he struggled with in reality, and that when Employee worked on the internal project for a short time, he struggled and did not do any productive work.

[225]       President’s evidence about Employee’s lack of ability to work on other projects is not credible and I do not accept it.

[226]       Employee testified about his work on the internal project. He says he was on that project for a few days at most but was brought back to work on the Game, which was his main project, before any of his work on the internal project could be finalized. He did not testify that he struggled. I accept Employee’s evidence. 

[227]       Employee also testified that at the time of his termination President was still hopeful that the internal project would pay off. This is consistent with Mr. R’s evidence, which was that the Company was still deciding what to do with the internal project at the time of Employee’s termination, not that work on it had ended. I do not accept President’s evidence that the internal project was not an option for Employee to work on at the time of his termination.

[228]       President’s evidence about Employee’s abilities is also internally inconsistent. On one hand, President says he expected Employee to be able to immediately work independently from the time he started at the Company and emphasized that Employee needed a second probation period at the start of his employment, which President said was unusual. On the other hand, President says that one reason the Company avoids layoffs is because, ultimately, it costs the Company more to lose employees who have worked there for some time because it takes new employees many months to get up to speed, even they are experienced in the industry.

[229]       President’s evidence about Employee’s probation is also inconsistent with Mr. R’s evidence in his direct examination by Supervisor. Mr. R testified that there are often times when new recruits reach the end of their initial 90-day probation period and there are some things that are not quite working, but if there is potential, the Company will extend their employment for a period of time and let them know where they want to see improvements. Mr. R recalled that Employee’s probation was extended in this manner.

[230]       President did not ask Mr. R questions about Employee’s initial probation and whether it was a unique situation. I do not accept President’s evidence that it was a unique situation. 

[231]       President’s evidence about Employee’s abilities is also inconsistent with Mr. S’s evidence. Mr. S worked directly with Employee on the Game for a year and a half and was in the best position to testify about Employee’s abilities at the time of his termination. Mr. S worked with Employee and the rest of his team daily and used scheduling and task management software that gave him a good idea of each team member’s performance. Mr. S viewed himself and Ms. L as “superstar performers”, and says that Employee did not perform at their level, but neither did Mr. L or Mr. H.

[232]       Mr. S testified that Employee was adequate at programming tasks, and he trusted Employee to work with certain features. He said that the Company did not have an android debugging setup until Employee set one up and made it testable, which was something other programmers might have struggled with. This gave Mr. S confidence in Employee’s ability to learn new things. I accept Mr. S’s evidence.

[233]       President is the only witness who testified that Employee was not capable of working on different projects. Employee’s evidence is that after he passed his extended probation period, he did not receive any negative feedback about his work and that he understood it to be satisfactory. The Company increased his salary after his first year. He enjoyed working on a team with the common goal of delivering the Game before the deadline, always succeeded at this, and found it rewarding to develop the Game and fix problems. Employee testified that his work on the Company’s internal project was brief, and he did not have time to finalize a coding task before Supervisor asked him to go back to working on the Game because more help was needed there.

[234]       President did not cross-examine Employee about his capabilities. I accept Employee’s evidence, which suggests that there were no issues with his work.

[235]       President also testified that the Game was the Company’s largest source of revenue. It would not make sense for Employee to be a regular programmer on the Game if his work was not satisfactory.  

[236]       President also introduced a document into evidence that he calls a “shortage of work lay off decision matrix” [Matrix]. President says he does not take layoffs lightly, and he put the Matrix together to make his decision of which programmer to lay off. The Matrix lists seven employees who worked on the Game, including Employee, Mr. S, Ms. L, Mr. L, and three others who are listed as “support only”. Mr. H is not listed on the Matrix. The information on the Matrix includes the seven employees’ years of experience, start dates at the Company, academic qualifications, awards and publications, main projects, other internal projects, and job titles. The Matrix ranks the employees from one to seven, with Employee ranked seventh and last.

[237]       I do not accept President’s evidence that he created the Matrix to make his layoff decision for the following reasons.

[238]       Aside from the serious concerns about President’s credibility based on my findings in the Preliminary Decision, I also find that President’s evidence related to the retaliation allegation, including his evidence about Employee’s abilities, is self-serving and disingenuous. Further, a finding that President created the Matrix at the time of the layoffs does not fit with all of the evidence. President has not explained why he did not include Mr. H on the Matrix. He also did not disclose the Matrix until July 28, 2022, well after the start of the hearing, and did not explain why he would not have disclosed it much earlier in the process if it had existed then.

[239]       The Company has not established that, even if it were necessary to lay off a programmer in February 2019, it simply made sense to choose Employee. 

4.      Conclusion on retaliation

[240]       Employee has established a sufficient connection between his discrimination complaint and the termination of his employment to establish retaliation. A reasonable complainant apprised of the facts at the time of Employee’s termination would reasonably perceive the termination to be retaliatory based on the timing and the absence of a credible explanation from the Company that it was necessary to lay off a programmer in February 2019, and that Employee was simply the logical choice.

[241]       Next, I set out and give reasons for the remedies I order for the discrimination and retaliation.

VI    Remedies

A.    Sections 37(2)(a) and (b) of the Code

[242]       I declare that the Respondents’ conduct related to the Document process was discrimination contrary to s. 13 of the Code. I order the Respondents to cease the contravention of the Code and not commit the same or similar contravention in the future.

[243]       I declare that the Company violated s. 43 of the Code by terminating Employee’s employment in retaliation. I order the Company to stop the contravention and not commit the same or similar contravention in the future.

B.     Wage loss – section 37(2)(d)(ii) of the Code  

[244]       The determination of wage loss for a breach of the Code is discretionary and based on a case-by-case analysis: J.J. v. School District 43 (Coquitlam), 2013 BCCA 67 at paras. 35 to 45. The purpose of a wage loss award is to put the complainant in the position they would have been in had the breach of the Code not occurred. The complainant must establish a causal connection between the breach of the Code and the loss claimed: Ms. K v. Deep Creek Store and another, 2021 BCHRT 158  at para. 118.

[245]       Employee seeks an order that the Company pay him $19,761 in lost wages to remedy the retaliatory termination of his employment.

[246]       Employee set out the remedies he seeks in Form 9.4 – Remedy Sought and testified about his remedies sought at the hearing. He also introduced documents related to his earnings at the Company into evidence.

[247]       Employee’s yearly salary at the time of termination was $65,000 per year. The Company paid him $2,500 gross salary every two weeks. The Company paid him until February 22, 2019, and he says he looked for work from that point until the end of August 2019, at which time he returned to school. The amount he seeks is based on his net pay of $1,882 every two weeks. Although Employee says he seeks wage loss until the end of August 2019, $19,761 is equal to 21 weeks of net pay, which covers the period from February 25 to July 19, 2019.

[248]       The Company notes that Employee did not submit a written argument in this proceeding and never provided any case law in support of his claims. The Company says it does not agree with the amount Employee seeks in these circumstances.

[249]       I find that I may decide on the appropriate amount of wage loss and order the Company to pay this amount based on Employee’s Form 9.4 – Remedy sought and his evidence in the hearing. The Company had notice of exactly what Employee seeks, an opportunity to present its own evidence at the hearing in response to Employee’s evidence, and an opportunity to make submissions on remedy, which it did. There is no unfairness to the Company in ordering a payment for wage loss in these circumstances.

[250]       The Company submits that Employee is not entitled to any wage loss because there were over 100,000 jobs available in Canada that Employee was qualified for at the time of his termination, and he would have been in high demand because there was a massive shortage of workers in the industry. In any case, the Company says it was Employee’s choice to leave the industry and return to university studies, and he is not entitled to wage loss in these circumstances.

[251]       The Tribunal considers whether a complainant took reasonable steps to find other work and reduce the amount of wages lost. The burden is on a respondent to show that a complainant failed to avoid losses that reasonably could have been avoided: Ms. K at para. 119.

[252]       I accept Employee’s evidence that he would have continued working at the Company in February 2019 if not for the termination of his employment. His wage loss claim only runs until July 2019, so even if there is a possibility he would have stopped working to return to school in September 2019 if his employment had not been terminated, this does not impact his wage loss claim.

[253]       Employee testified that he looked for work during the wage loss period, applying for programming positions in the gaming industry, and tutoring and teaching positions. He was not successful in finding another job. He also says he was having a difficult time because he was dealing with this complaint on his own with no representation at the time.  

[254]       The Company did not cross-examine Employee about his evidence of looking for other work, and did not introduce evidence that there were jobs available that Employee was qualified for at the relevant time.

[255]       I accept Employee’s evidence that he looked for work between his termination and starting school in September 2019, and that he was not successful in getting a job. The Company has not established that Employee failed to avoid losses that reasonably could have been avoided in the 21-week time period of the wage loss claimed. This is not a long time period after a termination, and I accept Employee’s evidence that he was having a difficult time after experiencing discrimination and retaliation. There is also no evidence of any relevant jobs available at the time, let alone 100,000 as the Company submits.

[256]       I order the Company to pay Employee a wage loss award of $26,250 gross salary. The net amount of this is appropriately the $19,761 he seeks.

C.     Injury to dignity, feelings, and self-respect – section 37(2)(d)(iii) of the Code 

[257]       The Tribunal explained the basis for awards of compensation for injury to dignity, feelings, and self respect, in Ms. K at paras. 124 and 125:

A violation of a person’s human rights is a violation of their dignity: Nelson v. Goodberry Restaurant Group Ltd. dba Buono Osteria and others, 2021 BCHRT 137 [Nelson] at para. 33. Section 37(2)(d)(iii) of the Code exists to address that violation. Under s. 37(2)(d)(iii) of the Code, the Tribunal has the discretion to award damages as a way to compensate a complainant for injury to their dignity, feelings and self-respect. 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 impact on the complainant: Nelson at para. 33.

[258]       In his Form 9.4 – Remedy Sought Employee seeks an award of “$50,000 or higher, as the Tribunal deems just.” He relies on Francis v. BC Ministry of Justice (No. 5), 2021 BCHRT 16, in which the Tribunal awarded the complainant $176,000 compensation for injury to dignity, feelings, and self-respect, for nine incidents of racial discrimination and two incidents of retaliation that, taken together, amounted to a poisoned work environment. By the date of the decision the complainant in Francis had been unable to work for seven years because of deteriorations in his health caused by the respondent’s breaches of the Code.

[259]       Supervisor says the amount Employee seeks is not reasonable because the Document process ended when Employee asked to end it, there were no changes to his employment during or after the process, and the harm Employee claims came out of his own interpretation of the situation.

[260]       The Company and President did not make submissions about the appropriate amount of an award.

[261]       The Respondents entered evidence and made submissions about whether the Document process really impacted Employee and argued he had difficulties before the process started and exaggerated the impact of the Respondents’ conduct.

[262]       I start by addressing the nature of the discrimination.

[263]       First, I am only awarding compensation for injury to dignity, feelings, and self-respect for the discrimination. Ordinarily the Tribunal would award compensation for retaliation under this category as well as remedying the wage loss, but Employee did not ask for this in his Remedy Sought form or describe any impacts of the termination in his evidence at the hearing. The Company therefore has no notice of a claim for compensation for injury to dignity for the retaliation.

[264]       In assessing the nature of the discrimination, the Tribunal may consider whether there was one instance of discrimination or it persisted over time, and may consider the power imbalance between the parties. Although any discrimination is serious, the seriousness of particular discriminatory conduct will depend on the facts of that case: Ms. K at para. 126.

[265]       The nature of the discrimination in this case was the Respondents subjecting Employee to the ongoing Document process, during which he feared for his employment, and felt the Respondents perceived him as a misfit and an outsider, all because he raised concerns from his particular perspective. The process went on for two months, from early July to the end of August 2018, at which time the Respondents placed Supervisor’s latest version of the Document in Employee’s file.

[266]       There is an inherent power imbalance in many employment relationships and that was the case here, where President had full control over Employee’s continued employment at the Company. The power imbalance was especially significant in this case because the work permit Employee held at the time of the discrimination did not allow him to work for any employer other than the Company. Employee had an open work permit when he first started at the Company, but it expired in May 2018 while Employee was in the process of applying for permanent resident [PR] status, and his work permit issued May 13, 2018, only permitted him to work at Company. Employee obtained PR status in September 2018, so throughout the Document process the Respondents had control not only over Employee’s employment at the Company, but also whether he could work in Canada at all. This meant that when the Document process disturbed Employee he did not have the option of leaving the Company to look for work elsewhere.

[267]       I find that the nature of the discrimination warrants a relatively high amount of compensation for injury to dignity. Exercising power over Employee in a way that suggested to him that his perspective meant he did not belong in Canada, let alone at the Company, was a serious affront to Employee’s dignity.

[268]       I also find that Employee’s vulnerability in the social context warrants a relatively high amount of compensation.

[269]       Employee was in a vulnerable position due to his immigration status at the time of the discrimination. He was in the process of applying for his PR status, and the Respondents treated him as if he did not belong in Canada unless he shifted his perspective to one that they could understand and relate to. Employee knew that the Respondents did not have control over his PR application, and told Supervisor on July 17, 2018, that Supervisor was not the government of Canada and could not tell him to go back to Iran, but the Respondents did control whether Employee was able to continue working at this time. They conducted themselves as if their own perspectives were the measure of whether or not someone belongs in Canada, and Employee had no choice but to be an audience to this because he did not have the option of looking for work elsewhere. This intensified Employee’s vulnerability.

[270]       Employee was also vulnerable to mistreatment as an immigrant from Iran. This is evident from his experiences at university, Supervisor’s comment to him about Iran in 2017, and Supervisor’s comment to him after a bombing in Iran’s parliament. In these instances, Supervisor and the individual at university made comments about harmful acts on the part of the country of Iran that had nothing to do with Employee personally. There was no reason to comment on these issues to Employee other than to embarrass him. Employee was vulnerable to generalizations and personal mistreatment as a person from a country that engages in actions that many people find objectionable. The Respondents took advantage of Employee’s vulnerability to attempt to force him to shift his perspective and attitude into one that they could understand and relate to, instead of making any effort to understand his perspective and experience.

[271]       Finally, I consider the impact of the discrimination on Employee. I find that the impact warrants a significant award, but not to the extent that he seeks.

[272]       Employee testified that he found the Document process very disturbing. He felt that the various drafts of the Document portrayed him as an outsider and a “cultural misfit”, suggested that his employer needed to re-educate him, and suggested that he did not understand freedom of expression even though it was something he fought for in Iran and he paid a price for doing so. The act of asking Employee to sign and agree with what was in the Document, and to agree with statements about him such as that he kept anger bottled up, repeatedly invalidated his feelings. He also felt anxious about the possibility of losing his employment. Employee testified that he suffered emotional pain during the Document process that continued until the time of the hearing.

[273]       Employee testified that the Document process was on his mind so much at the time that it kept him from being able to focus on his actual work, so he was less confident and less productive. He says he was emotionally drained, mentally exhausted, and had trouble sleeping and was up at night thinking about the issue. On July 11, 2018, he sent Supervisor an email at 3:58 a.m. asking him to remove a sentence from the Document that said one must be aware and tolerant of cultural differences, because this implied that he was not, and it was important to him to convey that this was not true. He feared going to work during the process because Supervisor could have brought up the Document at any time to ask Employee to sign and agree to it. In August 2018 he was afraid to consult a lawyer about his situation even though he understood that he had a right to do so, because he felt the Respondents could react negatively and there may be significant consequences.

[274]       Employee says the impact on him continued even after the Document process concluded. He did meet with lawyers about his concerns, which meant he missed time from work, and this caused him anxiety. He found himself falling asleep at work in September 2018, and Mr. R spoke to him about this on September 18 and 19. By November 2018 Employee was deciding whether or not to file the discrimination complaint within the timeline or let the issue go and possibly regret it for the rest of his life, which caused him considerable anxiety. Supervisor and Mr. R met with Employee and told him he appeared to be staring into blank space. Employee told them that he was fine, even though his mental state was far from fine. He testified that he held on to a draft of the discrimination complaint for some time and ultimately filed it because the Document process weighed heavily on his mind, and he knew he would not forget it.     

[275]       Employee wrote in his Remedy Sought form, and testified about, the impact on him of Supervisor’s conduct in their meetings during the Document process. Employee says Supervisor yelled at him and had a threatening pose during their meetings.   

[276]       I have accepted Supervisor’s evidence that he intended the process to be collaborative and found that Supervisor was under pressure himself and did not intend his conduct towards Employee to be threatening or intimidating. However, I also accept that Employee experienced Supervisor’s conduct towards him as threatening. The discriminatory Document process scared Employee and had a lasting impact.

[277]       Supervisor submits that the process did not impact Employee’s ability to do his work, and that Employee suffered from sleep issues before the Document process so this issue could not have been a result of the discrimination. The Respondents introduced evidence on this point at the hearing. Supervisor says he would have known if Employee’s performance dropped because of how that would have impacted the rest of the team working on the Game, and that no one else had to put in extra effort to make up for any lack of productivity from Employee.

[278]       Supervisor also testified that Employee did not raise concerns about the Document process to him or other managers like Mr. R or Mr. S at the time.

[279]       President asked Employee in cross-examination about three emails that Employee sent to others at the Company and suggested that the emails indicate that Employee had sleep issues before the discrimination. Employee sent the first email to President at 2:57 a.m. on a Saturday morning to reply to an email that President sent him at 5:26 p.m. on March 15, 2018. President did not include the content of his email, and Employee’s email simply says “Thanks [President]!” Employee did not recall what the email was about but agreed that President may have sent him information he needed to apply for his work permit. Employee sent the second email to Mr. R on Saturday, January 14, 2017, at midnight, to say that he had fixed an issue in the Game and an issue in the other sports game he worked on for a short time. Employee sent the third email to everyone at the Company on September 21, 2017, at 5:37 a.m. to say he was not well and would not be in that day.

[280]       President suggested to Employee that his three emails sent late at night or in early morning hours indicate that he had sleep problems before the discrimination. Employee denied this. He did not recall the particular emails, but thought that he may have been up late for no particular reason other than it being a Friday night in the first instance, he was likely working late to fix urgent issues in the second instance, and likely awake early because he was sick in the third instance. Employee says that any sleep issues at the time of those emails were a result of working late to fix important issues. Mr. R’s evidence is consistent with this – he testified that they were all working late and under pressure at times.

[281]       Supervisor points to evidence from Mr. S that Employee had some struggles throughout his employment. Mr. S testified that he saw Employee doze off at work a few times, but was not sure when that started. Mr. S also says he found Employee to be awkward and he felt he needed to accompany Employee for conversations with employees in other departments, such as design, to make sure there were no miscommunications, although Employee’s English skills were “pretty good”.

[282]       I accept Employee’s evidence about the impact of the discrimination on him. The Document process deeply disturbed and hurt him, and he was anxious about the possibility of losing his job and about being forced to stand up for himself against his employer if he did not want to sign the Document.

[283]       None of the Respondents’ evidence suggests that Employee may have struggled with fear, anxiety, and hurt feelings before the discrimination to the extent that he did during the Document process and afterwards. I find it is not surprising that others in the workplace did not notice that Employee was suffering during and after the Document process. Supervisor did not appreciate the impact of the Document process on Employee even though they met about it several times and Employee was distressed and scared during their conversations. It is not surprising that Employee did not raise his concerns about the process to any other managers, because the process started after he raised a concern in the first place. Others did not notice impacts on Employee’s work because he managed to keep up despite his struggles. Mr. R’s evidence is also that work on the Game was winding down from the busiest level by the time period of the discrimination; it is less likely that Employee’s struggles would impact others at a time when work on the Game was less intense and demanding.

[284]       The impact of the discrimination on Employee was significant, although, as Employee acknowledges in his Remedy Sought form, his case is different from Francis. Employee worked through the period of discrimination, although he was suffering at work. Although the discrimination continued to impact him, he fortunately was able to start attending school in September 2019.

[285]       Parts of Employee’s basis for seeking a high amount of compensation for injury to dignity are related not to the discrimination itself, but to the Tribunal process. In his Remedy Sought form, and in his evidence at the hearing, Employee says the Respondents continued to emotionally hurt him by asking the Tribunal to dismiss his complaint because his feelings about Iran are stupid and crazy.  

[286]       The Respondents were allowed to defend against the complaint and make submissions about their position to the Tribunal. It was clear that the process was difficult and stressful for Employee, but compensation for injury to dignity is for the impact of the discrimination, not the difficulty of the Tribunal process.

[287]       Considering Employee’s particular vulnerability as an Iranian employee with a work permit tied to the Company, the ongoing nature of the discrimination for two months, and the significant impact on Employee throughout this time period and up until the hearing dates, I find that an order of $35,000, as compensation for injury to Employee’s dignity, feelings and self-respect, is warranted. President and the Company are liable for this amount and liability among them is joint and several.  

D.    Steps to address effects of discriminatory practice – section 37(2)(c)(i) of the Code

[288]       In his Remedy Sought form Employee seeks an order that the Respondents develop a human rights policy with strong deterrence for everyone, including President, against violating human rights, and that the Human Rights Clinic hold a “Human Rights in the Workplace” workshop at the Company. Employee testified that he seeks these remedies because he wants to prevent similar events from happening to others in the future. Employee did not know that place of origin is a protected characteristic under the Code and did not know that the Document process might be a violation of the Code while it was happening. He wants others at the Company to have a stronger chance of being able to exercise their rights and to know that they have a right to file a complaint, so it is less likely that the Code will be violated, and management will not be able to take advantage of ignorance of the Code.

[289]       Supervisor no longer works at the Company. President and the Company did not make submissions about these requested remedies.

[290]       The remedies Employee seeks are consistent with the purposes of the Code, particularly the purpose of preventing discrimination: s. 3(c). However, there is no evidence before me about whether ordering the Company to hold a human rights workshop would have the desired effect, and I decline to make this order. It is likely that the Respondents will be in a better position to avoid the sort of unintentional discrimination that I found occurred following the outcome of this case and this decision.   

VII  Costs

[291]       Supervisor seeks orders for costs against Employee, President, and the Company.

[292]       The basis for an award of costs at the Tribunal is a finding that the party subject to the order engaged in improper conduct during the course of the complaint, or contravened a rule or order: Code, s. 37(4).

[293]       Supervisor seeks costs from Employee for bringing his complaint through the hearing process despite evidence that his claims were about “inferred exaggerations” and Employee’s own “lack of emotional control”.

[294]       Supervisor’s application is denied. Besides the obvious point that Employee’s complaint was allowed, it is not improper conduct for a complainant to proceed with a complaint that ultimately does not succeed. The Tribunal decides at the screening stage whether a complaint will proceed further in the process. Sometimes, as happened in this case with both the discrimination and retaliation complaints, the Tribunal denies an application to dismiss a complaint and decides that it will proceed to hearing. Complaints may also proceed to a hearing after screening without an application to dismiss being filed. The Tribunal decides whether a complaint warrants a hearing. A respondent’s task is to respond to a complaint against them with evidence and submissions, as Supervisor diligently did in this proceeding. 

[295]       Supervisor seeks costs from President and the Company for failing to represent Supervisor throughout the complaint process. Supervisor says President exploited him to devise and execute a defence strategy for the Company’s and President’s interests even though Supervisor did not work at the Company anymore. Supervisor notes that in a letter decision on an adjournment application dated September 19, 2023, I referred to Supervisor’s situation as unusual.

[296]       I also deny Supervisor’s application for costs against President and the Company.

[297]       President initially represented Supervisor as well as himself and the Company. At a prehearing telephone conference on April 29, 2022, President advised that he was no longer representing Supervisor after Supervisor had left the Company. I drew the parties’ attention to s. 44(2) of the Code and told President and Supervisor that each of them may wish to seek legal advice about responding to the complaint.

[298]       President declining to represent Supervisor once Supervisor no longer worked at the Company is not improper conduct. The Tribunal does not have authority to order one respondent to represent another. Respondents’ interests will not always be aligned and each respondent to a complaint must be able to devise their own strategies and respond to allegations as they see fit. Declining to represent Supervisor, and leaving it to Supervisor to represent himself whether his positions and case were aligned with President’s and the Company’s or not, was President’s choice to make.

[299]       I referred to Supervisor’s situation as “unusual” in the context of considering the prejudicial impacts on him of an adjournment if one were to be granted. It was apparent by that time that the process was impacting Supervisor’s well-being, and that Supervisor was the only party making efforts to conclude the case in a timely manner, but this was not a suggestion that President declining to represent Supervisor was improper conduct.

[300]       Before leaving the issue of costs I note that in the Preliminary Decision I allowed Employee’s application to admit settlement documents for the purposes of an application for costs against President and Company. I said that parties may apply for costs based on my decision. Employee’s counsel also raised at various points during the hearing that Employee would be applying for costs from President and Company related to late disclosure as well as for conduct related to the correspondence that was the subject of Employee’s application.

[301]       Employee’s counsel withdrew before the end of the proceeding and Employee did not make an application for costs. Supervisor only applied for costs on the basis that President did not represent him. This means I have not assessed President’s conduct in this hearing, including his deliberate attempt to mislead the Tribunal that I describe in the Preliminary Decision. This should not be taken as condonation of President’s conduct. His deliberate dishonesty was clearly improper conduct, which may have warranted a significant costs award if any party had applied for costs on this basis. I may have found other conduct on his part to be improper conduct warranting costs had any party applied on a basis other than the basis for Supervisor’s application.    

VIII           Applications to limit publication 

[302]       At the outset of the hearing Employee sought to extend an order limiting publication of his identity in preliminary decisions to apply to this final decision.

[303]       President and Company also seek an order limiting publication of the Respondents’ names based on their own privacy interests in any case, citing concerns for President’s safety.

[304]       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.

[305]       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: 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 details 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. It is not enough to just assert that a person’s reputation may be tarnished: Stein at para. 64(c).

[306]       Employee applied for the initial order limiting publication of his name early in the complaint process. In his application he said he was concerned about the possibility of facing discrimination, detention or prosecution in Iran, or of repercussions to his family, arising from his need to address certain elements of his own beliefs and views in the process of bringing his complaint. In a letter decision dated September 27, 2019, the Tribunal found that Employee’s individual privacy interest in his identity outweighed the public interest of knowing his identity. The Tribunal also anonymized the Respondents because identifying the Respondents may inadvertently identify Employee.

[307]       At the outset of the hearing Employee said he sought an extension of the order limiting publication of his name, but his view was that it was not necessary to anonymize the Respondents for the benefit of his own anonymization and the Respondents should be named in the decision. Employee submitted at that time that if he could not be anonymized without the Respondents also being anonymized, he preferred not to be anonymized himself.

[308]       I directed the parties to make submissions on Employee’s application to limit publication in their closing submissions, including on whether Employee should be anonymized, if so, whether the Respondents should be anonymized for this purpose, and whether the Respondents themselves sought limitation of publication of their own names independently from Employee’s application.

[309]       Employee did not make closing submissions in this case, and did not make any further submissions on this issue after the outset of the hearing.

[310]       Supervisor takes no position on Employee’s application to limit publication, but submits that if any party names are anonymized, then all party names should be anonymized. Supervisor does not say that limiting publication of the Respondents’ names is necessary to give effect to an order limiting publication of Employee’s name, but submits that equal application of anonymization “can deter future punitive use of the tribunal decision to slander or mis-represent any of the parties in a public forum.”

[311]       President and the Company submit that Employee should not be anonymized because his original reasons for seeking anonymization have long passed and he has not provided any update to these. They submit that if there is an order limiting publication of Employee’s name, it should also limit publication of the Respondents’ names because Employee could easily be identified otherwise.

[312]       I considered that I have no recent submissions from Employee on this issue. In the circumstances, however, I find it is still necessary to balance Employee’s privacy interests with the public interest in the parties’ identities. Since he gave his position at the outset of the hearing, he gave evidence about repercussions he suffered in Iran when he stood up for freedom of expression there, and I found it necessary to set out that evidence in my decision. His initial reasons for seeking the order limiting publication are still relevant.

[313]       Even though Employee ultimately did not file submissions at the end of this case, including on anonymization, I have explained that this is not because the issues I need to decide are no longer important to him, but is because the process became difficult for him, and I denied applications he made to indefinitely adjourn the hearing. It also became apparent that travelling to Iran and spending time there is important to him, as this was the basis for some of his adjournment applications. For these reasons, I prefer to take a cautious approach on the issue of his anonymization.  

[314]       I find that Employee has a significant privacy interest that warrants anonymizing him in this decision. An order limiting publication ensures the public’s access to the Tribunal’s proceedings and allows the public to scrutinize this decision without a risk of harm to Employee by identifying him: Ms. K at paras. 67-68.

[315]       While Employee said at the outset of the hearing that he preferred the Respondents not be anonymized, he did not set out the basis for a particular public interest in their identities. I find that identifying the Respondents in this decision could easily lead to identifying Employee, and that anonymizing the Respondents is necessary to give effect to this order.  

[316]       My reason for anonymizing the Respondents is solely to give effect to Employee’s anonymization. If the Respondents were not anonymized, publishing their identities as the Respondents to this complaint would not be slander or misrepresentation as Supervisor suggests, but would simply be stating the outcome of the complaint. The order limiting publication also does not prevent Employee, or anyone else, from speaking to other people about the decision and identifying the Respondents in conversation. It only prohibits publication of the parties’ identities. 

[317]       I would have rejected President and the Company’s application to anonymize the Respondents’ names for their own privacy interests. I emphatically reject their submissions on this issue. I do not fully summarize those submissions here because it is not necessary to repeat them to explain my decision. It is sufficient to say that President expresses concerns for his own safety and his family’s safety based on an allegation that Employee lied during the hearing about being non-religious, a statement that “religious fanatics” take even positive statements about their home countries as threatening and worthy of physical reprisals including assassination, and suggestions that Employee is a dangerous person because he is angry and has mental disabilities.

[318]       There is no basis whatsoever for President and Company’s submissions. There is no basis on which to even suggest, let alone find as facts, that Employee was not honest about whether he is religious, that he is a dangerous or threatening person, or that there is any risk of harm to President or his family from Employee or other Iranian people for any reason. These submissions are inflammatory, and apply harmful stereotypes about Iranian people, including Employee, suggesting that they may be dangerous because of where they are from. They apply harmful stereotypes to people from Iran who are religious, and to people with mental disabilities.

[319]       President and Company refer to two “threatening” text messages President says he received referring to the subject of anonymization, which said, “soon everyone will know” and “you can’t hide”. President submits that he received these text messages around the time that Employee applied for anonymization. President also raised these text messages in the hearing of Employee’s application to admit settlement communications because he said these texts were background to the content of the letter that he said he did write to Employee in 2019. I found that President’s evidence about the text messages was not relevant to the question of whether President wrote and sent the letters at issue in 2019. President did not seek to give evidence about the text messages at any other point in the hearing for the purposes of an application to limit publication or for any other reason.

[320]       There is no evidence on which I could find that Employee, or anyone else, sent President these text messages in relation to this hearing. It also is not apparent how the content of the texts President says he received may have been tied to Employee’s application for anonymization at an early stage of the hearing process. There is no evidence before me that is the basis for a suggestion that anyone threatened President related to his position as a Respondent in this proceeding, in any way, at any time.   

[321]       I allow Employee’s application to limit publication of his name, and I anonymize the Respondents’ names to give effect to this order. I order that no person may publish information which could identify the parties in connection with this complaint.

IX     CONCLUSION

[322]       I order that the Tribunal will refer to the parties as Employee, the Company, President, and Supervisor, in any documents which it makes available to the public.

[323]       I order that no person may publish information which could identify the parties in connection with this complaint.

[324]       I declare that the Respondents’ conduct contravened s. 13 of the Code and that the Company’s conduct contravened s. 43 of the Code: s. 37(2)(b).

[325]       I order the Respondents to cease and refrain from committing the same or similar contraventions of the Code: s. 37(2)(a).

[326]       I order the Company to pay Employee $26,250 as compensation for wages or salary lost as a result of the contravention of s. 43 of the Code: s. 37(2)(d)(ii).

[327]       I order President and the Company to pay Employee $35,000 as compensation for injury to his dignity, feelings, and self-respect: Code, s. 37(2)(d)(iii).

[328]       I order that President and the Company pay Employee post-judgement interest on the amounts awarded until paid in full, based on the rates set out in the Court Order Interest Act.

[329]       I deny Supervisor’s applications for costs.

 

Jessica Derynck

Tribunal Member

 

APPENDIX

[1]               In this Appendix I set out my reasons for a preliminary decision denying President’s application for an adjournment of the hearing on August 11, 2022, when he was set to complete his cross-examination of Employee. I also explain Employee’s lack of participation in the latter part of the hearing process.  

[2]               First, I explain the adjournment of the hearing date President was to complete his cross-examination of Employee.

[3]               Employee had counsel at the start of the hearing. The hearing was initially scheduled for five days on May 30 to June 3, 2022. Employee took three days and a brief part of the fourth day to give his evidence in direct examination. Supervisor extensively cross-examined Employee about the discrimination allegations on the fourth and fifth hearing days. On June 16, 2022, additional hearing dates of July 11, August 25, and August 26, 2022, were scheduled.

[4]               I then scheduled additional hearing dates as soon as the Tribunal’s and parties’ schedules allowed to complete Employee’s cross-examination. The first additional date was June 20, 2022. President applied for an adjournment of that date based on what he said was a serious family issue that he had to address. The other parties took no position on his application, and I granted it.

[5]               The hearing resumed on July 11, 2022. Supervisor completed his cross-examination of Employee within the first half hour. Then it was President’s turn to cross-examine Employee, but he was not prepared. I briefly adjourned the hearing to give President time to organize himself to ask his cross-examination questions. I also extended the afternoon break to give President time to find and send out documents he wished to put to Employee in cross-examination. President did not finish his cross-examination on that date. I scheduled partial days on July 13 and 14, 2022, to give President an opportunity to finish cross-examining Employee. He did not complete his cross-examination on those dates.

[6]               The Tribunal and Employee offered extensive availability for additional dates for President to finish cross-examining Employee in time for him to consult with his counsel before the Respondents’ evidence would begin on August 25. On August 1 President confirmed his availability for only one of those dates, August 11, 2022, and this date was scheduled for him to finish his cross-examination.

[7]               On August 10, 2022, President wrote to the Tribunal and other parties and said he was ill. He said, “Unfortunately tomorrow will not happen and will have to be adjourned.”

[8]               I sent a letter to the parties advising that a party may not unilaterally adjourn a hearing date and that I would hear President’s application for adjournment and any submissions from the other parties at the hearing the following day. President ultimately did not appear at the hearing but made submissions by email on request. 

[9]               A party applying for an adjournment must show that their request is reasonable, and that adjourning the hearing date will not be too unfair to the other participants.

[10]           I found that President’s adjournment request was not reasonable for the following reasons.

[11]           I assumed that President’s claim that he was ill was genuine. Generally, being ill is a reasonable basis to apply for an adjournment. However, I also considered that President did not make serious efforts to complete his cross-examination of Employee on the earlier dates.

[12]           I had advised the parties of the importance of completing Employee’s cross-examination in a timely way throughout the hearing.

[13]           President advised the Tribunal and parties on July 7, 2022, that he believed he would be able to complete his cross-examination on July 11, but he was not prepared at the start of that hearing date and took some time during the hearing day to prepare. He was able to cross-examine Employee on that date, although not efficiently. I scheduled hearing time for 1.5 hours on July 13 and one hour on July 14, although it is unusual for the Tribunal to set hearing time for less than one full day, to let President complete his cross-examination.

[14]           President then sent the Tribunal and parties documents that had never previously been disclosed on July 12, 2022, for use in his cross-examination, despite the parties’ disclosure obligations being clear to all parties throughout the process. It was necessary to spend part of the hour of hearing time on July 14, 2022, explaining disclosure obligations to President again, and to issue an order that he disclose any remaining documents that he intended to rely on in the hearing by July 28, 2022. He disclosed additional documents on July 28. 

[15]           On July 28, 2022, I also issued an order that President must finish his cross-examination by August 11, 2022. In that letter I said:

As discussed at the hearing, it is unfair to [Employee] to be under cross examination for this length of time, and it is necessary for the cross examination to be completed in time for Mr. Bharmal to confer with [Employee] before the August 25 and 26 hearing dates.

The circumstances that led to this order were the adjournment of the June 20, 2022 hearing date at [President’s] request, and [President] not completing his cross examination of [Employee] on July 11, 2022 or on the subsequent short hearing afternoons that were scheduled for this purpose. I have no other option but to order that the cross examination be completed by August 11 on dates that Mr. Bharmal and [Supervisor] have indicated their availability.

[President], if you do not confirm that you will complete your cross examination of [Employee] on August 9 and/or 11, 2022, you must write to the Tribunal, Mr. Bharmal and [Supervisor] with a detailed explanation of why you say you are not able to complete your cross examination on these dates.

[16]           On August 11 I gave President an opportunity to submit his remaining cross-examination questions or areas of questioning to the Tribunal, Supervisor, and Employee’s counsel, for my consideration to decide his adjournment application. I found that President’s remaining areas of questioning were either irrelevant to the issues I needed to decide in the case, or repetitive of areas about which Supervisor had already cross-examined Employee.

[17]           I found that it was not reasonable for President to seek an adjournment of the August 11 date in the context of the importance of finishing Employee’s cross-examination by that date, President’s lack of serious effort to do so before that date, and the irrelevance or repetitive nature of the questions he wished to ask.

[18]           I also found that granting President’s application would have unduly prejudiced Employee. Being left under cross-examination for weeks between hearing dates is stressful and this should be avoided where at all possible. Adjourning the August 11, 2022, hearing date also would have meant that the Respondents would not have been able to start their case on August 25 or 26, which would have caused an unreasonable delay.

[19]           I considered that President is self-represented and that it is essential that he have a fair opportunity to present his case. Given the nature of President’s remaining areas of questioning, I found that denying his adjournment application was unlikely to prejudice his ability to present his case. I advised the parties on August 11, 2022, that President may listen in to the hearing to hear Employee’s redirect examination. He did not do so, but said he would speak to Supervisor about the redirect. I also told the parties they may request copies of the hearing recordings for any reason. Finally, I advised the parties that it was open to President to make submissions in his final argument about any areas of Employee’s evidence about which he did not have an opportunity to cross-examine Employee, and any fairness issues that he said arose as a result. President made no such submissions.

[20]           Next, I explain Employee’s adjournment applications later in the hearing process, and the result of Employee not participating in the last stages of the hearing. I explain this because I found in the decision that Employee declining to participate in the hearing after his counsel withdrew was not an indication that he no longer wished to pursue his complaint, and did not impact his credibility.  

[21]           The Tribunal scheduled dates in January 2023 for the Respondents to complete their evidence. The Respondents did not finish their evidence on these dates, largely because President denied sending the correspondence that Employee applied to enter as evidence as an exception to settlement privilege, and it was necessary to hear evidence to decide that application. Employee then requested that the rest of the hearing dates be scheduled after April 2023, so they did not interfere with his schooling. I denied his request, but the parties did not have mutual availability until after that time in any case. Then Employee went to Iran in May 2023. Once he was there, he began requesting a delay of hearing dates and adjournments based on his declining mental health and a need to take care of himself. I granted Employee’s application to adjourn hearing dates of May 29 and 30, 2023.

[22]           I then denied Employee’s application to adjourn dates scheduled for September 28 and October 5, 2023, and his subsequent application to adjourn November 27, 2023. I gave reasons for my decisions at the time. Employee’s counsel then withdrew from the matter on November 24, 2023. Employee appeared at the hearing on November 27 and again applied to adjourn on the basis that he no longer had legal counsel. I allowed his application to adjourn, but only for a short period of time, and set out deadlines for the remaining steps of the hearing process, including Employee cross-examining the Company’s accountant if he chose to do so, Employee making submissions on areas of the Respondents’ evidence he said were not put to him in cross-examination and should have been, and the parties’ closing submissions.  

[23]           Employee did not participate further in the hearing after that point. It was apparent to me that Employee did not participate because his adjournment requests were denied, and it would have been difficult for him to continue in the circumstances. I found that I ultimately needed to carry on with the hearing to give the Respondents an opportunity to present their case, and that it would not have been fair to the Respondents, particularly Supervisor who opposed the adjournment applications, to indefinitely adjourn the hearing until Employee was ready to proceed. Employee’s lack of participation from this point forward was not an indication that the case was no longer important to him. 

 

Jessica Derynck

Tribunal Member