BC Human Rights Tribunal

Badohal v. WorkSafe BC, 2025 BCHRT 213

Date Issued: September 3, 2025
File: CS-001249/16707

Indexed as: Badohal v. WorkSafe BC, 2025 BCHRT 213

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:

Harpreet Singh Badohal

COMPLAINANT

AND:

WorkSafe BC

RESPONDENT

REASONS FOR DECISION

Tribunal Member: Jessica Derynck

Counsel for the Complainant: Aleem Bharmal, KC

Counsel for the Respondent: Andrea L. Zwack and Peter A. Gall, KC

Date of Hearing: April 18, 20, 24 to 26, December 8, 11-14, 2023; May 27-31, June 10 to 11, August 9, 2024

Location of Hearing: Videoconference

I        INTRODUCTION

II       BACKGROUND

III      ISSUES AND SUMMARY OF FINDINGS

IV      ANALYSIS AND DECISION

• A.      Harpreet’s religious beliefs and wearing a turban
• B.      Harpreet’s practice of wearing a turban when he started working at WSBC
• C.      Inspection Incident
  • 1.      Background to the incident
  • 2.      Harpreet’s evidence about removing his turban to attend the inspection
  • 3.      Mr. Alcock’s evidence about the inspection
  • 4.      Findings of what happened in the Inspection Incident
  • 5.      WSBC discharged its duty to accommodate Harpreet in the circumstances
• D.     IUOE Site Incident
  • 1.      Findings of what occurred
  • 2.      WSBC reasonably accommodated Harpreet in the circumstances
• E.      WSBC’s duty to accommodate Harpreet was not triggered before the Inspection Incident, or between the Inspection Incident and the IUOE Site Incident
• F.      Accommodation Plan Allegations
  • 1.      March 17, 2017, accommodation meeting
  • 2.      Accommodation Plan
  • 3.      Harpreet’s need for accommodation did not slow down his training
  • 4.      Harpreet’s Accommodation Plan did not adversely impact his work assignments or opportunities
  • 5.      June 2019 Fortis Site Inspection Issue
  • 6.      Exposure report related to a worker’s compensation claim
  • 7.      Fatal crane incident
  • 8.      WSBC did not fail to accommodate Harpreet by not following up on the Accommodation Plan
• G.     How a complainant may establish subtle discrimination
• H.     Director Position Allegation
• I.       General Mistreatment Allegations
  • 1.      Allegation that Ms. Berntson unfairly managed Harpreet
  • 2.      Not being assigned a specialized respirator
  • 3.      Lack of relief supervisor opportunities
  • 4.      Allegation that Mr. Marcoux yelled at Harpreet for speaking Punjabi at work
  • 5.      Failing to assign Harpreet to work in his preferred industries
  • 6.      Social isolation

V       CONCLUSION

I          INTRODUCTION

[1]               Harpreet Singh Badohal is a Sikh man who wears a turban. I refer to Harpreet by his first name throughout this decision because this was his preference at the hearing, and this is how his counsel referred to him in written closing submissions. Harpreet works for WorkSafe BC [WSBC] as an Occupational Hygiene Officer [OHO]. On August 8, 2017, he filed a human rights complaint alleging that WSBC discriminated against him in employment based on his religion. On April 9, 2021, he amended his complaint to add allegations of retaliation and additional allegations of discrimination.

[2]               Harpreet alleges that WSBC discriminated against him twice during the training period at the start of his employment. He says a colleague once required him to remove his turban to wear a hard hat to attend an inspection at a construction site. On another occasion he was not able to attend a field training session because hard hats were required, and he says WSBC did not reasonably accommodate him.

[3]               Harpreet also alleges that he experienced adverse impacts in employment after his training. He says that an accommodation plan WSBC implemented to address his inability to remove his turban to wear a hard hat was not adequate and ended up creating disadvantages for him. He says WSBC also retaliated and further discriminated against him when he applied on an internal job posting and they did not offer him an interview, and by mistreating him at work.

[4]               WSBC denies discriminating and retaliating. WSBC says its employees all treated Harpreet with respect and dignity to ensure that he would not experience negative consequences in his job because he wears a turban for religious reasons. WSBC says Harpreet chose to remove his turban once to go to the construction site with his colleague. WSBC says Harpreet then decided not to remove his turban for work again, but did not tell anyone at WSBC this until the day before the field training session. WSBC says it reasonably accommodated Harpreet for the training session on short notice, and that it has reasonably accommodated him throughout his employment. WSBC says Harpreet fabricated his subsequent claims of adverse treatment to bolster his complaint.

[5]               For the following reasons, I find that Harpreet has not established that WSBC discriminated or retaliated against him at any time. The complaint is dismissed.

II       Background

[6]               Harpreet lived and worked in Saskatchewan in 2016 when he applied to work at WSBC. WSBC offered him the OHO position at a regional office in the interior of BC [Regional Office] in July 2016. He began working in his OHO position on November 28, 2016. His wife and children joined him in BC in 2017 after the school year ended.

[7]               WSBC is a unionized workplace and, as an OHO, Harpreet is a member of the Compensation Employees’ Union [Union]. When he started at WSBC, his manager was Shawn Mitton. Mr. Mitton was the non-unionized manager in charge of all of the OHOs and Occupational Safety Officers [OSOs] in the Regional Office at the time. WSBC also has unionized supervisors who supervise OHOs and OSOs. Paul Davis was Harpreet’s first supervisor.

[8]               OHOs and OSOs are prevention officers. A large part of their work is conducting inspections at worksites to ensure that employers are compliant with the Workers Compensation Act, the Occupational Health and Safety Regulation [Regulation], and policies and guidelines related to worker safety. OHOs and OSOs write inspection reports after visiting worksites, and sometimes issue orders related to violations of the Act or Regulation. OHOs primarily work to prevent or investigate exposure to health hazards like chemicals and dust. OSOs focus on preventing and investigating safety incidents, including those related to falls, equipment, and other physical hazards. Some OSOs specialize in certain industries like forestry or construction. OHOs are less likely to specialize in one industry. OHOs and OSOs sometimes collaborate on worksite inspections or projects.

[9]               WSBC has a comprehensive training program for OHOs and OSOs called New Prevention Officer Development [nPOD], which includes field training out of the office where they work and classroom training in Richmond. Harpreet worked at the Regional Office for his first month of employment, then did blocks of classroom training in Richmond beginning in January 2017.

[10]           Harpreet’s first discrimination allegation is dated December 7, 2016. He alleges that an OSO named Dale Alcock took him along for a worksite inspection where hard hats were required on the site and required him to remove his turban to put on a hard hat. I refer to this as the Inspection Incident.

[11]           The second discrimination allegation is dated March 2, 2017, while Harpreet was in Richmond for classroom training. His nPOD class took a field trip to an International Union of Operating Engineers [IUOE] training site to learn about cranes and other heavy construction equipment. Harpreet alleges that WSBC failed to accommodate his inability to attend the field portion of this training because he wears a turban and could not wear a hard hat to attend the site. I refer to this as the IUOE Site Incident.

[12]           Harpreet raised his concern about the IUOE Site Incident and the requirement for prevention officers to wear hard hats at some worksites with Mr. Mitton and others at WSBC. Marianne Naish was the Regional Human Resources [HR] Operations Manager for the Regional Office at the time. Ms. Naish worked with Harpreet, Mr. Mitton, a Union representative, and other managers, to create an accommodation plan for Harpreet to avoid the need to wear a hard hat to do his job [Accommodation Plan].

[13]           Harpreet alleges that WSBC was disrespectful to him in the course of creating and implementing the Accommodation Plan, and that the Accommodation Plan failed to prevent adverse impacts on him in his employment because of his turban. He also says that aspects of the Accommodation Plan created adverse impacts in his employment by denying him work opportunities and making it more difficult to do his job. I refer to these as the Accommodation Plan Allegations.

[14]           In May of 2020 Harpreet applied on an internal job posting for the position of Director, Risk Analysis Unit. WSBC considered his application and did not interview him for the position. Harpreet alleges that this was discrimination and was retaliation for him filing his complaint. I refer to this as the Director Position Allegation.

[15]           Finally, Harpreet alleges that WSBC mistreated him in other ways after he filed his complaint, including by neglecting to encourage him to apply for a relief supervisor role, unreasonably criticizing his volume and quality of work, refusing to provide him with a specialized respirator because of the cost, refusing to assign him work in preferred fields, and excluding him from coffee outings. He also alleges that on one occasion a colleague yelled at him when he was speaking Punjabi at work and told him to speak English. Harpreet alleges that this mistreatment was retaliation, further discrimination, or, at the very least, evidence that others in the workplace did not value or support him because he wears a turban and filed a human rights complaint. I refer to these allegations as the General Mistreatment Allegations.  

III     Issues and Summary of Findings

[16]           There is no dispute that Harpreet sincerely believes in the practice of wearing his turban in connection with his religion: Friesen v. Fisher Bay Seafood and others, 2009 BCHRT 1 at para. 25.

[17]           To make out a case for discrimination, Harpreet must establish that he experienced an adverse impact in his employment in which his religion was a factor: Moore v. British Columbia (Education), 2012 SCC 61 at para. 33. If he does this, WSBC may defend against the discrimination allegations by establishing a bona fide occupational requirement [BFOR] for its standard that created the adverse impact: Code, s. 13. To do this they must show that they could not have reasonably accommodated Harpreet’s need to wear his turban without incurring undue hardship: British Columbia (Public Service Employee Relations Commission) v. BCGSEU [Meiorin], 1999 CanLII 652 (SCC) at para. 54.

[18]           Credibility is a central issue underlying most parts of this complaint. I find that much of Harpreet’s evidence is not credible. I generally find the WSBC witnesses’ evidence to be credible, and in instances where there are conflicts in the evidence, I accept the WSBC witnesses’ evidence.

[19]           I first make findings of fact about Harpreet’s practice of wearing his turban at the time he started working at WSBC. These findings are important to my decision about the Inspection Incident. I find that Harpreet’s evidence about his practice at this time is not credible. Harpreet claims that he was not willing to remove his turban to wear a hard hat from the start of his employment at WSBC, but I find that this was not the case. I find that Harpreet only decided that he would not remove his turban at work after the Inspection Incident.

[20]           I then address the two incidents that occurred during Harpreet’s training. My decision about these incidents turns on Harpreet’s credibility and legal principles of the duty to accommodate. I find that the Inspection Incident was not discrimination. Harpreet’s evidence about what happened is not credible. I accept Mr. Alcock’s evidence that he brought the hard hat requirement to Harpreet’s attention and asked him whether or not he was able to wear one. Harpreet decided to remove his turban to wear a hard hat. WSBC did not require Harpreet to remove his turban, and Mr. Alcock’s inquiry discharged the duty to accommodate.

[21]           I also find that the IUOE Site Incident was not discrimination. Harpreet told his instructors that he needed an accommodation at the end of the day on the day before the site visit. Harpreet’s instructors gave him several options that were reasonable and were the best they could do at that time. This discharged the duty to accommodate.  

[22]           Next, I address the issue of when WSBC’s duty to accommodate Harpreet was first triggered. Harpreet submits that WSBC was obligated to inquire into the issue of whether he was able to wear a hard hat at the time he was hired or near the start of his employment, and to have a plan to accommodate him in advance of the hard hat issue coming up in practice. I find that WSBC’s duty to accommodate Harpreet was not triggered until the time of the Inspection Incident. 

[23]           I then consider the Accommodation Plan Allegations. My decision on these allegations turns on the question of whether Harpreet has established that there were adverse impacts in his employment related to his turban that the Accommodation Plan needed to address, or whether the Plan itself created any adverse impacts. I find that Harpreet has not established his case for any of these allegations. Specifically, I find that:

a.    Ms. Naish and Mr. Mitton took Harpreet’s need for accommodation seriously and treated him respectfully.  

b.    If Harpreet had come across any instances where he needed to access a worksite where hard hats were required to do his job, the Accommodation Plan would have accommodated him. His preferred accommodation was to be able to do his own risk assessment if this issue were to arise, but WSBC was not obligated to accommodate him in this manner.

c.     Harpreet’s need for accommodation, and the Accommodation Plan, did not slow down his training.

d.    The Accommodation Plan did not result in Harpreet doing less important or interesting work or receiving less overtime than he would have if he had not needed accommodation. 

e.    When Harpreet did not complete a project involving a visit to a Fortis worksite in June 2019, this was not because of his need for accommodation or the Accommodation Plan.

f.      When Harpreet had a conflict with a WSBC medical advisor about a report Harpreet prepared related to a worker’s compensation claim, this was not related to his need for accommodation or the Accommodation Plan.

g.    WSBC did not exclude Harpreet from the investigation into a serious accident involving fatalities in July 2021 because he could not wear a hard hat.

h.    WSBC did not adversely impact Harpreet in his employment by failing to follow up with him about the Accommodation Plan. 

[24]           I next consider the Director Position Allegation, which is an allegation of discrimination and retaliation. To establish that WSBC’s conduct was retaliation, Harpreet must prove that WSBC treated him adversely, such as by denying him a right or benefit, and that there is a sufficient connection between WSBC’s conduct and his discrimination complaint. He may establish the required connection based on an inference that it is reasonable to perceive WSBC as having engaged in the impugned conduct in retaliation, from the point of view of a reasonable complainant, apprised of the facts at the time of the conduct: Gichuru v. Pallai, 2018 BCCA 78 at para. 58. 

[25]           A finding of discrimination may also be based on an inference that Harpreet’s religion, specifically, the fact that he wears a turban, was a factor in an adverse impact in his employment: Kondolay v. Pyrotek Aerospace Ltd., 2020 BCHRT 208 [Kondolay] at para. 107.

[26]           My decision on the Director Position Allegation depends on whether the evidence supports an inference that the decision not to interview Harpreet for the position was discrimination or retaliation. I find no basis in the evidence for an inference of retaliation or discrimination. Rather, WSBC did not offer Harpreet an interview for this position because he was far less qualified than the other applicants.

[27]           I then consider the General Mistreatment Allegations. My decision on these allegations also depends on whether the evidence supports an inference that WSBC discriminated or retaliated. There is no basis in the evidence to find an inference of discrimination or retaliation in any of these allegations. Specifically, I find that:

a.    Kira Berntson, who became Harpreet’s manager in July 2019, did not manage Harpreet in a retaliatory or discriminatory way. She managed his work as necessary and how she did so had no connection to his need to wear a turban or to his human rights complaint.

b.    WSBC did not fail to provide Harpreet with a specialized respirator, and no one commented to Harpreet that he should not receive a respirator because of the cost.

c.     WSBC did not retaliate or discriminate against Harpreet regarding opportunities for relief supervisor positions. WSBC did not consider Harpreet for a relief supervisor position because he did not apply for one.

d.    An alleged incident that a colleague yelled at Harpreet when he spoke Punjabi at work and told him to speak English did not happen.

e.    WSBC did not retaliate or discriminate against Harpreet regarding the type of work he was assigned. He wanted to be assigned to work in agriculture or health care, but there was no need to assign an OHO to those specific industries.

f.      Colleagues, supervisors, and managers did not exclude or isolate Harpreet from coffee outings. Harpreet had less interaction with Mr. Alcock after filing his complaint, but the Union arranged this because of Harpreet’s allegations about Mr. Alcock in the 2016 Inspection Incident, and this was appropriate in the context. 

[28]           I turn now to explain my reasons for my decision. I have considered all of the parties’ evidence and I only recount the evidence necessary to explain my decision.     

IV    ANALYSIS AND DECISION

A.    Harpreet’s religious beliefs and wearing a turban

[29]           There is no dispute that wearing a turban is central to Harpreet’s Sikhism. I would have no trouble making this finding in any case. He gave extensive evidence of the significance of wearing a turban and the importance of this to his life. I find this evidence to be sincere and reliable, and I accept it. Throughout my decision I considered Harpreet’s evidence about wearing a turban and how important this practice is to him. I do not need to summarize all of his evidence about wearing a turban to explain my decision, but I highlight some of it here.

[30]           Harpreet explained that a core principle of Sikhism is “sewa”, which is about service and selflessness. This principle is essential to the practice of wearing a turban, which is sacred and cannot be compared to wearing a piece of clothing. To Harpreet, the turban represents a willingness to make sacrifices and provide service to the community. He explained that in India it is common to say that if someone is walking at night and feels fear, they can find someone wearing a turban and they no longer need to be afraid. Part of the reason Harpreet wanted to work in occupational hygiene in the first place was to help workers, consistent with this principle.

[31]           Harpreet also explained the significance of wearing a turban to his relationship with his family. His father, who died when he was a young child, wore a turban. Wearing one himself is a source of connection to his late father. It is also an essential part of his relationship with his wife and two children. Harpreet met his wife, Daljeet Kaur Badohal, at college in India in 1991. She testified at the hearing and confirmed the importance of the turban to their relationship. Harpreet’s turban was one of the reasons Daljeet liked Harpreet and was important to her father’s approval of their marriage.

[32]           Harpreet and Daljeet chose to move to Canada over other countries because the Sikh religion is well respected and represented here. They moved to Canada in 2006. Harpreet has a collection of more than 50 turbans in different shades, and his wife and children participate in choosing his turban to match his attire every day.

[33]           Wearing a turban is clearly essential to Harpreet’s practice of Sikhism, his identity, and his life with his family. Asking a Sikh person to remove their turban is a significant insult.  

[34]           Harpreet had to work without a turban at times for his first job in occupational hygiene in Saskatchewan. Removing his turban for work was a decision he did not take lightly, and the fact that he did this does not signify that the practice is any less important to him. He did this because of the type of work available to him at the time. He graduated from the University of British Columbia with a M.Sc. in Occupational and Environmental Hygiene in 2011. He received an offer for a position with the Ministry of Labour Relations and Workplace Safety in Saskatchewan as a technical lead, where he would manage projects and govern occupational hygiene activities. This employer advised Harpreet in advance that he would work in industries like mining and firefighting, and it would not be possible to accommodate him to wear his turban. He would need to cut his hair and wear a hard hat.

[35]           Harpreet carefully considered what to do about his Saskatchewan job offer. He considered that when he first moved to Canada, he delivered pizzas at night and looked after his young daughter during the day so his wife could go to school. He earned a M.Sc. in Botany from Punjabi University in 1996 and had worked as a college instructor and researcher in India. He shared a common experience of immigrants to Canada working in jobs that are not related to their education and qualifications for years while qualifying to do work in Canada that better reflects their qualifications and abilities. He had applied for other jobs at the time of his graduation from UBC, but the Saskatchewan position was his only offer at the time. He spoke to an elder and explained his situation, and after explaining that this was the only option for him to work in his field at this time, the elder told him that he should do what he needed to do for his family, provided he did not let anyone else touch his turban or his hair. He cut his hair himself and felt like he was taking a step back in his journey. Harpreet worked in his position in Saskatchewan from October 2011 to September 2016.

B.     Harpreet’s practice of wearing a turban when he started working at WSBC

[36]           There is a dispute in the evidence about Harpreet’s practice of wearing his turban when he started working at WSBC. I find that Harpreet’s evidence about his practice when he first started working at WSBC was not credible. This does not impact my findings about the importance of wearing a turban to Harpreet’s religion, identity, and family life, or about whether a requirement to wear a hard hat to some worksites had an adverse impact on Harpreet in his employment that triggered WSBC’s duty to accommodate him. My findings here affect my assessment of Harpreet’s evidence, particularly related to the Inspection Incident.

[37]           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.

[38]           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. Burnaby (City), 2022 BCHRT 29 at para. 15.  

[39]           Harpreet testified that by the time he came to WSBC at the end of November 2016, his hair had grown long again, and he always wore a turban while working and during training.

[40]           Harpreet says that when he was preparing to leave Saskatchewan, he stopped cutting his hair and started wearing a turban around 2014 or 2015. He did not say whether he consistently wore his turban for work during this time period, or whether his employer in Saskatchewan was able to accommodate him for the rest of his time in that position.

[41]           In the context of describing the Inspection Incident, Harpreet testified that he removed his turban to wear a hard hat on that occasion, and that when he took his turban off, his hair fell to the side and opened up, and he quickly pushed it back like a pony.

[42]           I find that Harpreet’s evidence about the length of his hair at the time is not reliable because his hair could not have been as long as he described in December 2016.

[43]           WSBC introduced a photo into evidence of Harpreet with his nPOD class at a restaurant [Restaurant Photo]. In this photo Harpreet’s beard covers his chin but is not long enough to cover the front of his neck. He is not wearing a turban. His hair appears to be shaved at the sides. On top it is parted in the middle and short enough that it does not reach his eyebrows or ears.

[44]           In Harpreet’s direct evidence he expressed anger at WSBC for relying on the Restaurant Photo. Harpreet said that the photo is a “racist trope”, that by introducing it WSBC was portraying him as angry and a bad person and trying to blame and shame him, and they would not have used the photo if they understood his spirituality.

[45]           Harpreet’s reaction to the Restaurant Photo is not an accurate characterization of WSBC’s use of the photo. WSBC does not dispute the sincerity of Harpreet’s religious beliefs or the importance to him of wearing a turban, and did not suggest to him in cross-examination or in its closing submissions that having dinner with his colleagues without wearing a turban at some point during nPOD training calls the sincerity of his beliefs into question. Harpreet’s evidence is that whether and when a Sikh person chooses to wear a turban is a personal decision. After careful consideration he decided to remove his turban to perform his job in Saskatchewan, which does not call the sincerity of his beliefs into question. The parties do not agree on the timing of Harpreet’s decision not to remove his turban for work at WSBC or the length of his hair in December 2016. I must resolve these factual disputes to decide the complaint and the Restaurant Photo is clearly relevant. WSBC introduced the photo into evidence for this purpose, and no improper purpose, and it was up to Harpreet to explain the length of his hair in the photo and his reasons for not wearing a turban at that time. 

[46]            I find, based on the photo and the witnesses’ evidence about the photo, that Harpreet’s hair was as short as it appears in the Restaurant Photo, or shorter, when he started working at WSBC in late 2016.

[47]           Kira Berntson started working for WSBC as an OHO at the Regional Office around the same time as Harpreet and was in his nPOD class. She testified about the Restaurant Photo. She does not recall the date the photo was taken but thought it might have been when the class went out for dinner after a graduation ceremony at the end of their nPOD training, which was in spring 2019. Ms. Berntson also says she recalls Harpreet socializing after class one or two other times without wearing a turban, although he always wore his turban in class. 

[48]           Harpreet disputes that the Restaurant Photo is from their graduation day, but he does not dispute that it is a photo of him with his nPOD classmates, and he says that his hair was about the same length in the photo as it was in December 2016. He also testified about another photo of his nPOD class that he says is from their graduation day, where they are all wearing matching shirts and he is wearing a turban [Grad Photo]. In the Grad Photo his beard looks to be about the same length as it is in the Restaurant Photo. 

[49]           Harpreet did not provide a logical explanation for his short hair in the Restaurant Photo. He maintained that his hair was long at this time but said that he is balding and that at his age his hair only flows down his back. This evidence is not consistent with the photo, which shows that he had a receding hairline at the time, no balding on top of his head, and a short haircut with no hair flowing down his back or even long enough to reach his ears. I find that Harpreet attempted to shape his evidence about the photo to fit with his previous evidence about the length of his hair in December 2016 instead of giving evidence of his sincere recollection of his hair length at the time of the Restaurant Photo.

[50]           I also do not accept Harpreet’s evidence about why he was not wearing a turban in the Restaurant Photo. He testified that it was likely that he did not wear a turban to dinner because he went for a long walk after training, got drenched in rain, and took his turban off to let it dry, then colleagues called him and knocked on his door to ask him to go out. He testified that he did not want to go out because when his turban gets wet it collapses and falls off, and he only had one turban with him because he had to minimize packing for the trip to have room for a computer, steel-toed shoes, and a mask. Harpreet says he went out with his colleagues without his turban even though he did not want to because WSBC emphasized that relationships with colleagues are important and he felt pressure. He testified that although he is smiling in the photo, he was uncomfortable. 

[51]           I find that Harpreet does not have a good recollection of the dinner in the Restaurant Photo or any reasons he went out without wearing a turban, but he tried to give evidence that fit with his earlier evidence about having long hair in December 2016. He testified about what “likely” occurred to try to put forward a plausible explanation for his appearance in the Restaurant Photo that fits with his case, instead of testifying to his sincere recollection.

[52]           I must also resolve a factual dispute about whether Harpreet ever decided to remove his turban for work purposes at the Regional Office, other than during the Inspection Incident. WSBC says Harpreet removed his turban during first aid training early in his employment. Harpreet denies this.

[53]           I find that Harpreet removed his turban for first aid training at the Regional Office at some point near the start of his employment.

[54]           Dan Marcoux was an OSO who did first aid training with Harpreet. Mr. Marcoux began working for WSBC in 2006 but moved to the Regional Office in 2016. He recalls meeting Harpreet during first aid training early in Harpreet’s employment before his family joined him from Saskatchewan. Mr. Marcoux’s recollection is that they did five full days of training for level 2 first aid and generally had lectures in the mornings and worked in groups of three on practical application in the afternoons. Mr. Marcoux says he worked in a group with Harpreet on at least one occasion when they practiced spine control, and Harpreet was not wearing a turban and had hair shorter than collar length. Mr. Marcoux says he recalls this because they were asked not to wear collared shirts to the training because they had to put hard collars on each other, and Harpreet was not wearing a turban at this time and did not have long enough hair to interfere with the collar. He says Harpreet’s hair was short, not long enough to be tied up in a bun.

[55]           Harpreet testified in cross examination that he recalls doing first aid training but does not recall Mr. Marcoux being there. Harpreet denies that he would have removed his turban for first aid training at work.

[56]           I accept Mr. Marcoux’s evidence about the first aid training. I considered that he and Harpreet both testified about this issue more than seven years after the training took place, and it is difficult to retain firmness of memory about events that likely did not seem significant at the time. I nevertheless find that Mr. Marcoux’s recollection was sincere. The first aid training was when he first met Harpreet, and he recalls that Harpreet’s family was still in Saskatchewan at the time. He also recalls that he invited Harpreet over for dinner after they met, which Harpreet does not dispute. Mr. Marcoux explained that he does not invite all colleagues over for dinner, but he had a previous close relationship with someone who is South Asian and learned how to cook Indian food from her and her family, so invited Harpreet over to cook for him while Harpreet’s family was still in Saskatchewan. The collars involved in the spine control training were the basis for Mr. Marcoux to recall whether or not Harpreet wore a turban and the length of his hair.

[57]           Mr. Marcoux is the colleague Harpreet alleges once yelled at him to stop speaking Punjabi at work after he filed his complaint. Harpreet’s counsel put to Mr. Marcoux in cross examination that he was angry at Harpreet because of this allegation, and this impacted his evidence about the first aid training. I address this allegation later in my decision and find that Mr. Marcoux did not yell at Harpreet as alleged. In cross examination Mr. Marcoux denied that Harpreet’s allegation impacted his evidence about first aid training and said he was simply stating facts as he recalled them.

[58]           I find that Mr. Marcoux’s evidence was credible. He expressed some emotions about the allegation against him, but this is expected in the circumstances of the allegation. By the time of the hearing Mr. Marcoux was more disappointed than angry because he believed that he was friendly with Harpreet, had a lot of respect for him, and did not understand why Harpreet made this allegation against him. His explanation of his reaction to the allegation was genuine. I find that his reaction to the allegation did not impact his evidence about the first aid training and that he testified to his genuine recollection of the training.

[59]           Harpreet also submits that Mr. Marcoux’s evidence is inconsistent with evidence from other WSBC witnesses, including Ms. Berntson, who testified that she saw Harpreet without his turban a couple of times at social events in Richmond but that he always wore it at the Regional Office for work and classes. There is no evidence that Ms. Berntson was at the first aid training, however. Harpreet also did not recall this training well enough to sincerely testify to his recollection about it. There is no evidence that specifically contradicts Mr. Marcoux’s evidence about the training. His evidence is also consistent with the length of Harpreet’s hair in the Restaurant Photo.  

[60]           In summary, I find that when he started working at WSBC at the end of November 2016, Harpreet’s hair was a similar length as shown in the Restaurant Photo. He generally wore a turban at work from the start of his employment. He attended at least one social dinner with his colleagues at nPOD training in Richmond without wearing a turban, and did not wear a turban at least for the spine control portion of the practical first aid training at the Regional Office. These findings are not related to the sincerity of Harpreet’s beliefs or the importance to him of wearing a turban and deciding for himself whether and when to remove it around his colleagues, but they are relevant to my findings about what happened in the Inspection Incident.        

C.     Inspection Incident

1.      Background to the incident

[61]           When Harpreet started at WSBC he first worked at the Regional Office until the end of December 2016. During this time, he started to complete a document called the Inspection Guide Completion Tracker [Inspection Tracker]. New officers attend worksite inspections with experienced officers as part of their training. The Inspection Tracker lists 15 different inspection guides, for example, “fall protection” and “asbestos”, in a chart with space to fill in the date of three or more shadow inspections, joint inspections, and solo inspections for each guide. At the top of the Inspection Tracker, it says that the number of inspections completed is to be negotiated between a new officer and their mentor, and it may not be necessary to complete them all, or the mentor and officer might decide to complete more.

[62]           Mr. Alcock explained that during shadow inspections a new officer observes the experienced officer, although the new officer may speak up to ask questions or point out issues. New and experienced officers do joint inspections together, and new officers do solo inspections with an experienced officer there for backup.

[63]           Harpreet did four shadow inspections in December 2016. One was with Mr. Alcock on December 7 and is the subject of this allegation. The others were with different officers on December 6, 13, and 20.

[64]           Mr. Alcock started working at WSBC in 2008, so had about eight years of experience by the time of this incident. He does not recall that anyone in particular asked him to take Harpreet for a shadow inspection on December 7, but generally the Regional Manager asks officers to do this so new hires will see how their various colleagues interact with people and manage their workloads. Experienced officers are not required to do this if they have busy workloads, but Mr. Alcock enjoys taking new officers for shadow inspections and thinks they are a fantastic opportunity to help a new officer learn the job.

[65]           Harpreet alleges that it was wrong of Mr. Alcock to take him on the December 7 inspection in the manner that he did. Harpreet’s evidence is that he thought he would only be doing educational work online and familiarizing himself with the job before starting classroom training in Richmond in January 2017, and that his “official training” at the Regional Office would not start until he returned from Richmond. Harpreet testified that, when Mr. Alcock asked him to go along for an inspection, it seemed sudden because no one had told him that he would be going anywhere that day. Mr. Mitton and Mr. Davis were not at the Regional Office that day, and Harpreet’s evidence is that he thought Mr. Alcock was a supervisor because only a supervisor should have approached him and directed him to do something like go on an inspection.

[66]           I find that there was nothing improper about Mr. Alcock taking Harpreet on a shadow inspection on December 7. This was an ordinary part of Mr. Alcock’s job and an ordinary part of Harpreet’s training. Mr. Alcock testified that he did not explain to Harpreet what a shadow inspection was and how it was part of his training process; he assumed that Harpreet knew this already. I find this was a reasonable assumption. Harpreet already had a shadow inspection noted on his Inspection Tracker for December 6, 2016, for the inspection guides “Respirators” and “Confined Spaces”. Harpreet does not recall any details of the December 6 inspection or the others he attended in December but does not dispute that he did them as noted on the Inspection Tracker. The December 7, 2016, inspection only stands out because of this allegation. It is noted on the Inspection Tracker as a completed shadow inspection under the guides “Occupational First Aid” and “Fall Protection”.  

2.      Harpreet’s evidence about removing his turban to attend the inspection

[67]           Harpreet’s evidence is that he was working on his computer when Mr. Alcock approached him, waving and holding a hard hat, and said “let’s go for a quick inspection.” Harpreet testified that WSBC had not issued him his own personal protective equipment [PPE] yet, and Mr. Alcock got the hard hat from a general supply area. Harpreet says he thought Mr. Alcock was a supervisor and he was required to go with him, so he did. He says he followed Mr. Alcock out of the building to Mr. Alcock’s truck, Mr. Alcock did not tell him where they were going, and he did not ask. Harpreet says he and Mr. Alcock did not talk in the truck while they went on a short drive to a construction site. He says Mr. Alcock parked the truck, took the hard hat out of the back seat, and said, “put it on”. Harpreet says he thought Mr. Alcock was joking so he jokingly replied, “should I put it on my turban?”, but Mr. Alcock did not laugh. Harpreet says he realized Mr. Alcock was serious and he told Mr. Alcock that he cannot take off his turban. He says Mr. Alcock was quiet for a moment, then pointed to him with a stern face and loudly said, “you are still on probation”. Harpreet says he was very uncomfortable and understood this to be a threat to his job. He says Mr. Alcock again told him to put the hard hat on, then got out of the truck.

[68]           Harpreet testified that he was shocked and did not know what to do. He says he was confused and wondered if he would be fired. He says he reached up to take his turban off, the turban collapsed in his hands, and his hair fell to the side and opened up, so he pushed it back. He testified that this was the most insulting thing that ever happened to him, and he felt broken inside, like his whole being came into question. He says he did not feel like himself and his mind was in a trance, but he put the hard hat on and followed Mr. Alcock onto the construction site. He says he was not wearing other required PPE like a safety vest or steel-toed footwear, and he saw a worker on the site who was not wearing a hard hat, but Mr. Alcock did not say anything about the other required PPE or the other worker. He says Mr. Alcock pointed some things out to him and spoke to some people, but he was numb and does not remember what Mr. Alcock said.

[69]           Harpreet says that after about 30 minutes he and Mr. Alock got back in the truck, and he immediately took the hard hat off. He says his hair was on his neck and he wanted to put it together, so he quickly tied up his hair. He says Mr. Alcock talked about inspections and the importance of taking notes on the drive back. Harpreet testified that, when they returned to the Regional Office, he told Mr. Alcock that he had to put his turban back on and Mr. Alcock directed him to a bathroom. He says he did not want anyone else to see him like that, so he walked to the bathroom quickly, and he was not in a good frame of mind. Harpreet says he dried the small counter space between the sinks with tissues and used it to tie on his turban, but as he finished, he realized that the end of the cloth was soiled and that it had touched a urinal. He says he washed the end of the cloth and his hands, but he felt broken inside, and he noticed the smell for the rest of the day. He says he later called his wife and told her that he was forced to take off his turban, and about what happened when he put it back on in the bathroom. 

3.      Mr. Alcock’s evidence about the inspection

[70]           Mr. Alcock testified that he always talks to a new officer in the office before taking them on a shadow inspection to set the stage and make it clear that the new officer will be learning but not writing any orders. In this instance he says he spoke to Harpreet in the office boardroom because he wanted to ask him about PPE requirements. Mr. Alcock says no one had told him that Harpreet would need accommodation in any case where a hard hat may be required, but he was aware from his experience of inspecting construction sites in Vancouver that some workers wear turbans for religious reasons and there is a duty to accommodate them. Mr. Alcock says he thought about what to say to Harpreet and wanted to be professional about the issue. He says he told Harpreet that he follows universal precautions at construction sites of wearing steel-toed shoes, a vest, safety glasses, a hard hat, and hearing protection where necessary, and asked Harpreet whether he could use all of that PPE. Mr. Alcock says Harpreet responded “Dale, I am Sikh, but I also need to make a living”.

[71]           Mr. Alcock testified that he was surprised at Harpreet’s response. He says he expected Harpreet to say that he could not wear a hard hat because he could not remove his turban, and then he would have looked at how to accommodate Harpreet, for example, by having Harpreet wait at an area of the site where a hard hat was not required while he checked the area for potential hazards himself, and that if they were not able to figure out the issue themselves he would have raised it with a manager. Mr. Alcock says that even though he was surprised at Harpreet’s response, he did not tell Harpreet that it was not necessary to remove his turban to attend the inspection. He says he left the issue up to Harpreet.

[72]           Mr. Alcock testified that he asked Harpreet whether he had all his PPE, Harpreet said he did, and he asked Harpreet to meet him at his truck. He says Harpreet already had his turban off when he came to the truck and had his other PPE with him. Mr. Alcock says Harpreet’s hair was cut short.

[73]           Mr. Alcock’s evidence is that he and Harpreet chatted about the Sikh religion as they drove to a commercial job site. Mr. Alcock’s mother was a member of the Jehovah’s Witness faith when he was growing up. He found when he was a teenager that his own personal beliefs did not align with the faith, but in his younger school years he had experiences of being publicly recognized and singled out because of his religion. He says he was interested in Sikhism but had never had close personal interactions with a Sikh person, and he asked Harpreet about the significance of a kirpan. Mr. Alcock says that if Harpreet was not interested in talking about Sikhism he would have honoured that and apologized for asking, but Harpreet was very willing to discuss the topic. Mr. Alcock says Harpreet explained some tenants of Sikhism, and talked about indoctrinated Sikhs, who are more like baptized members of the faith, who are not permitted to cut their hair or facial hair and have turbans and kirpans as part of a public display of their faith. Mr. Alcock says he found this fascinating.

[74]           Mr. Alcock testified that the inspection went well. He says they went to the worksite in response to a concern about some stairs that a small crew was putting in a two-story steel construction, and there were no issues of workers without PPE or breaching any safety requirements. Mr. Alcock says he and Harpreet talked to debrief the inspection, and that he may have talked about note taking as part of that debrief. He says he had no indication that Harpreet was concerned about having removed his turban. His impression was that Harpreet would be a superstar employee to work with.

4.      Findings of what happened in the Inspection Incident

[75]           I find that this incident occurred as Mr. Alcock describes in his evidence.

[76]           Harpreet does not submit that Mr. Alcock intentionally discriminated against him and was reluctant to directly accuse Mr. Alcock of intentionally discriminating against him in his evidence. He submits, however, that if I accept his version of events, it is difficult to avoid questioning Mr. Alcock’s motives and suggests that Mr. Alcock may have been ill-motivated. At the hearing, Harpreet submitted that Mr. Alcock imposed an old-school view on Harpreet that hard hats take priority, whether or not Mr. Alcock intended this to be discrimination.

[77]           I find that Mr. Alcock was not ill-motivated and did not intentionally or unintentionally impose such an old-school view on Harpreet. I find that he simply took Harpreet on the inspection because it was part of his job to do so, and that he first asked Harpreet whether he could wear the PPE to give Harpreet an opportunity to say he could not wear a hard hat. Mr. Alcock’s lack of ill intentions does not preclude a finding of a breach of the Code, but I find there was no ill-motivated conduct involved that would be difficult or impossible to justify.

[78]           Mr. Alcock’s evidence was sincere, and I find it was more likely than Harpreet’s to be accurate. Mr. Alcock testified about this inspection in May 2024, more than seven years after it happened. He first gave a statement about this incident in July 2018, about a year and a half after the inspection, then provided affidavit evidence in October 2018 and January 2019.

[79]           Harpreet’s counsel asked Mr. Alcock questions about his affidavit evidence in cross examination. In his first affidavit Mr. Alcock said that Harpreet said it was no problem for him to wear all PPE, and he would remove his turban. Mr. Alcock said he responded to ask Harpreet whether he was sure about this, and Harpreet replied that he was Sikh but had to work for a living. In cross examination Mr. Alcock testified that his affidavit evidence was accurate. Harpreet’s counsel asked Mr. Alcock whether he had a conversation with Harpreet about removing his turban, and Mr. Alcock denied having such a conversation.

[80]           I find that Mr. Alcock did not contradict himself between his affidavit evidence and testimony at the hearing, or between his direct and cross examination. I would not expect a witness’s recounting of an event to remain exactly the same over the course of seven years after the event happened. Mr. Alcock’s direct evidence at hearing did not include all of the details that are in his affidavits, but his affidavits and direct evidence are not inconsistent. A brief summary of Mr. Alcock’s evidence on direct and cross examination is that he asked Harpreet whether he could wear all PPE including the hard hat, Harpreet said he could and would remove his turban, he asked Harpreet whether he was sure about this, Harpreet replied that he is Sikh but has to work for a living, Mr. Alcock was surprised but left the decision up to Harpreet and did not have a conversation with him about whether or not he was required to remove his turban, and Harpreet took off his turban before joining Mr. Alcock at his truck.

[81]           Harpreet submits that if Mr. Alcock were truly credible and sincere in testifying that he was aware of and cared about a possible need to accommodate Harpreet’s religion, he would have responded to the statement “I am Sikh, but I also need to make a living” by inquiring further and reassuring Harpreet that he did not have to go against any tenants of his faith for his new job. I do not agree. While that may have been a preferable response, it was not the only reasonable response. It is possible to be aware of and care about a potential need for accommodation and decide to leave it up to the person with the potential need whether or not to raise it. Mr. Alcock was aware of a potential need for a religious accommodation from his previous work, but he did not personally know anyone who is Sikh and did not know much about the religion. Asking Harpreet if he could use the PPE and leaving it up to Harpreet to raise any issue was a reasonable approach. I accept that Mr. Alcock was surprised at Harpreet’s response to his inquiry about whether he could wear PPE but that he left Harpreet’s decision about what to do up to Harpreet.

[82]           Harpreet also submits that Mr. Alcock’s evidence about their conversation about Sikhism in the truck is not credible because it is not consistent with Harpreet’s evidence of how he explained his religious and spiritual journey at the hearing. Harpreet says he would not use the word “baptized” because Sikhism is a journey that is unique to everyone, unlike religions where events like a baptism happen at a certain age.

[83]           I find Mr. Alcock’s evidence about his conversation with Harpreet to be credible. Whether or not Harpreet used the word “baptized” is not crucial because I would not expect a witness to recall the exact words used in a conversation years later. Mr. Alcock’s evidence about this conversation is also similar to evidence from Ms. Naish that, in a meeting on March 17, 2017, Harpreet talked about different levels of commitment in Sikhism and made a comparison to a nun’s attire. Harpreet says he did not say the exact words that Ms. Naish recalls and included in her notes of the meeting, but says he talked at the meeting about how Sikhism is a pathway, and every person is at their own place along the pathway, which makes Sikhism different from other religions. I find it likely that Harpreet had a similar discussion about Sikhism with Mr. Alcock.  

[84]           Harpreet submits that Mr. Alcock’s evidence is also inconsistent with information Mr. Alcock provided to Mr. Mitton in March 2017. On March 8, 2017, an HR advisor who did not testify at the hearing emailed Ms. Naish and a labour relations manager to summarize a phone conversation with Mr. Mitton. In the email the HR advisor says, “During the site visit [Harpreet] removed his turban and put on the hard hat.” Harpreet says this is evidence that Mr. Alcock initially told Mr. Mitton that he saw Harpreet remove his turban and put on the hard hat at the worksite, rather than saying Harpreet came to the truck with his turban off.

[85]           Mr. Alcock and Mr. Mitton say Mr. Alcock never described seeing Harpreet take off his turban. Mr. Mitton says he did not tell the HR advisor that Mr. Alcock had described seeing Harpreet take off his turban.

[86]           I find that the HR advisor’s email is not evidence that Mr. Alcock’s version of the events changed over time. The HR advisor did not testify, and the wording “during the site visit” in the email does not mean that Mr. Mitton relayed to her that Harpreet only removed his turban at the worksite with Mr. Alcock. I accept Mr. Alcock’s and Mr. Mitton’s evidence that Mr. Alcock did not describe the incident that way.

[87]           Finally, Harpreet submits that it is not credible for Mr. Alcock to say that he was attuned to other people’s religious and cultural sensibilities at work because he was not sensitive to racism and tensions between racialized people and police when he had a photo of a police helicopter as a background image on his computer while chairing an online meeting.

[88]           With this submission, Harpreet essentially asks me to find that, if Mr. Alcock was insensitive to race issues while chairing a meeting, I should not believe that he could have been sensitive to Harpreet’s potential need for religious accommodation during the Inspection Incident. Harpreet asks me to infer meaning from Mr. Alcock’s computer background photo, and to find, based on that meaning, that Mr. Alcock is more likely to have discriminated against him – in other words, to find that Mr. Alcock is more likely to have discriminated based on character evidence.

[89]            Character evidence is not admissible in Tribunal proceedings as a general rule because it is often prejudicial, has negligible probative value, and risks shifting the focus of the hearing away from material facts in issue: Preik v. Finning Canada, 2017 BCHRT 47 at para. 51.

[90]           I find that the evidence about Mr. Alcock’s computer background has no probative value and that deciding whether or not to infer any meaning into it would distract from material issues in the case. This is not an issue that impacts Mr. Alcock’s credibility.

[91]           Next, I explain why I do not find Harpreet’s evidence about this incident to be credible.

[92]           Harpreet testified about details that I find cannot be accurate. It is clear from the Restaurant Photo that his hair was not nearly long enough at the time to fall around his neck and push back as he described.

[93]           Harpreet’s evidence that Mr. Alcock came to his desk carrying a hard hat and asked him to go on the inspection, but he was then shocked when Mr. Alcock asked him to put on the hard hat in the truck, is also not credible. Harpreet says he felt that he had no choice but to follow Mr. Alcock, who did not explain where they were going, and that shadow inspections were not even part of his “official training” at the time. I do not accept that he did not know what was going on in light of the undisputed evidence about other shadow inspections he did in December 2016, including one the day before the incident.       

[94]           Whether or not Harpreet had his own PPE by this time, or he used a hard hat that came from a general supply area, I do not accept that Harpreet was surprised that a hard hat may be required when inspecting a construction site. Harpreet had completed a safety orientation that included information about hard hats by this point and was familiar with them from using them at his previous job. Harpreet’s evidence that he was surprised is not credible. I accept that Mr. Alcock raised the PPE issue with Harpreet before they went on the inspection and there was no basis for Harpreet to be surprised by a hard hat requirement once they arrived at the worksite.

[95]           Harpreet testified to details of not having his own PPE at the time of the inspection and says he had to wear office clothes for the inspection. He also says he saw a worker at the site without the required PPE talking on his phone. I do not accept this evidence. I find that Harpreet does not recall the details of the incident well but was willing to fill in details in his testimony as if he recalled them. It is unlikely that Mr. Alcock would bring Harpreet to a construction site with a hard hat but without the other necessary PPE; he would have no reason to do so. There is also no reason for Mr. Alcock to ignore a safety violation if he had observed one at the worksite. I accept Mr. Alcock’s evidence that the inspection went well from his perspective, and he did not observe any safety violations.

[96]           I also find that, if Mr. Alcock had threatened Harpreet’s job and coerced him into removing his turban, it is unlikely that Harpreet would not raise this with anyone at WSBC soon after it occurred. Harpreet did not raise the Inspection Incident to anyone at WSBC until his March 17, 2017, meeting with Mr. Mitton and Ms. Naish. He testified that he told Mr. Mitton and Ms. Naish that Mr. Alcock “forced him” to remove his turban at this meeting, but I find that is not the case. Harpreet took notes of the meeting and did not record any notes about his description of the Inspection Incident. In Ms. Naish’s notes of the meeting. she recorded Harpreet as saying he was “put in a position” to remove his turban and wear a hard hat to attend the worksite with Mr. Alcock, and that after that incident he said to himself that he would not do that again. Ms. Naish and Mr. Mitton testified that this is how Harpreet described the incident at the meeting.

[97]           I accept Mr. Mitton’s and Ms. Naish’s evidence. The March 17, 2017, meeting was to discuss an accommodation for Harpreet after he told WSBC that he could not remove his turban to wear a hard hat for work. WSBC took this issue and Harpreet’s need for accommodation seriously. If Harpreet had raised an issue of Mr. Alcock forcing him or coercing him to remove his turban it is unlikely that Mr. Mitton and Ms. Naish would have ignored this.

[98]           Harpreet also made a complaint to WSBC’s joint harassment committee about the IUOE Site Incident on March 15, 2017, and did not raise the Inspection Incident with that committee. He also did not raise the incident with Mr. Davis, who was his supervisor at the time, or with his Union. He first alleged that Mr. Alcock asked him to remove his turban and wear a hard hat and told him that he was still on probation after he refused in his human rights complaint filed on August 8, 2017.

[99]           Harpreet submits that the timing of when he raised the Inspection Incident does not impact his credibility, and that case law on sexual assault debunks attacks on credibility on this basis.

[100]       I accept that employees may be reluctant to raise concerns about workplace discrimination and may delay in doing so for various reasons. The timing of raising concerns or reporting an incident does not automatically call the credibility of a complainant’s evidence into question. I do not agree, however, that the timing of when Harpreet raised the Inspection Incident does not impact his credibility in the context of all of the evidence in this case. I consider Harpreet’s evidence and submissions that the incident was very difficult and emotional for him. In particular, he did not want to tell anyone what happened to his turban in the bathroom when he put it back on after the inspection. I consider that a complainant may have a credible explanation for a delay in raising or reporting a difficult or traumatic incident, but I do not dismiss the timing of his disclosure as irrelevant.

[101]       I find it is more likely that Harpreet did not raise his allegations about Mr. Alcock until he filed his human rights complaint because his perception of the incident changed over time, and this has tainted his evidence about what happened.

[102]       WSBC submits that Harpreet fabricated his version of the Inspection Incident to blame Mr. Alcock for his decision to remove his turban, which he later regretted, and to create an instance of a serious adverse impact on him to make his complaint more likely to succeed.

[103]       I do not need to decide whether Harpreet intentionally fabricated his version of the story, or his perception changed over time from feeling that he had been “put in a position” to believing that Mr. Alcock pressured him, to decide that I do not accept his evidence. I accept that the Inspection Incident was difficult for Harpreet, and he had a strong emotional response. I find that Mr. Alcock did not pressure him. If Mr. Alcock had threatened his job and forced or pushed him into removing his turban, he likely would have reported this to someone at the time, like he did with the IUOE Site Incident that occurred after he made his decision that he would not remove his turban for work.

[104]       My findings are consistent with evidence related to Harpreet’s counselling about this incident. In his direct evidence Harpreet testified that he talked to a counsellor who characterized the Inspection Incident as an “identity assault”. WSBC raised objections to some of Harpreet’s direct evidence. After hearing submissions on those objections, I adjourned the hearing and ordered that Harpreet disclose documents, including counselling records of any sessions where he discussed the Inspection Incident or the IUOE Site Incident. Harpreet disclosed his relevant counselling records just before the hearing resumed. In a continuation of his direct examination, he spoke to records from two counselling sessions on July 9, 2017, and August 3, 2017. The notes of both sessions say:

Salient trauma issues are: being blocked from participating in a Safety Prevention Officer training programme at a training facility because he was wearing a turban

Symptoms: difficulty initiating and maintaining sleep, triggering to agitation as a trauma/stress symptom, often in a reactive state of irritability, cognitive dissonance with regards to values and principles and identity.

[105]       In cross examination Harpreet confirmed that this was the counsellor who spoke about identity with him. He did not disclose any counselling records that contain any notes about the Inspection Incident. In cross examination he testified that he told the counsellor about the Inspection Incident, including about what happened to his turban in the bathroom, but the counsellor’s notes are succinct. He did not call the counsellor as a witness. 

[106]       If Harpreet had described being forced to remove his turban and the difficult experience he had when putting it back on in a counselling session, it is unlikely that a counsellor would not make note of this, and the counsellor did not testify to explain the absence of this in her notes. I find it more likely that Harpreet conflated the two incidents after his view of the Inspection Incident changed.

[107]       To summarize my findings of what occurred in the Inspection Incident, on December 7, 2016, Mr. Alcock approached Harpreet to ask him to go along for a shadow inspection. Before leaving the office Mr. Alcock told Harpreet about the universal PPE he would wear to the site, including a hard hat, and asked Harpreet whether he could also wear the required PPE. Harpreet said the PPE was no problem and that he would remove his turban. Mr. Alcock asked Harpreet whether he was sure about this, and Harpreet replied, “Dale, I am Sikh, but I also need to make a living”. Mr. Alcock was surprised, but he did not question this or have a conversation with Harpreet about whether he did or did not need to remove his turban. He left the issue up to Harpreet to make his own decision.

[108]       When Harpreet met Mr. Alcock at his truck, he had already removed his turban. Mr. Alcock asked Harpreet some questions about Sikhism in the truck, and Harpreet responded and discussed something along the lines of Sikhism having different levels of commitment and each person being on their own journey. Harpreet wore a hard hat for the shadow inspection at the worksite, which went well. When they returned to the Regional Office, Harpreet put his turban back on in a bathroom, and unfortunately soiled the end of the cloth when it touched a urinal. This was distressing and humiliating for Harpreet.        

[109]       Next, I explain that this incident was not a breach of the Code.

5.      WSBC discharged its duty to accommodate Harpreet in the circumstances

[110]       The requirement to wear a hard hat to attend a shadow inspection at a construction site created an adverse impact in Harpreet’s employment in which his religion was a factor. I must determine whether WSBC discharged its duty to accommodate Harpreet in the circumstances.

[111]       I do not need to find that WSBC or Mr. Alcock intended to discriminate to find a breach of the Code: Code, s. 2. It is possible for a respondent to have the best of intentions to reasonably accommodate a complainant and still discriminate. This means it is not only Mr. Alcock’s intentions that are relevant. I must also consider whether Mr. Alcock’s inquiry into whether Harpreet could wear a hard hat reasonably accommodated him.   

[112]       Harpreet had not raised the issue of whether he could wear a hard hat with anyone at WSBC up to this point, so no one had told Mr. Alcock that Harpreet would need accommodation if he were to attend a site where hard hats are required. Mr. Alcock was generally aware that Sikh people who wear turbans may need religious accommodation to attend construction sites, but he did not have in-depth knowledge about Sikhism and did not know Harpreet’s personal beliefs or practices. In these circumstances I find that it was reasonable for him to advise Harpreet of the PPE requirements before leaving the office to give him an opportunity to raise the issue.

[113]       Harpreet denies that he said he is Sikh but still needs to make a living but submits that if he had said something along those lines, Mr. Alcock should have taken the time to discuss the issue with Harpreet further until he had no doubt whatsoever that Harpreet was comfortable choosing to remove his turban. Harpreet says this is what Mr. Alcock would have done if he truly respected Harpreet’s religion and the obligation to accommodate a Sikh person who wears a turban. He also submits that the power dynamic impacting him as a new employee made it more difficult for him to raise it himself.

[114]       I find that accepting Harpreet’s submissions would place an unreasonable expectation on someone who does not have in-depth knowledge of Sikhism and had no way of knowing and understanding Harpreet’s personal beliefs and practices. Mr. Alcock’s approach to the situation, including his lack of questioning or reassuring Harpreet after he said he could wear the PPE, was not the only possible reasonable accommodation, but it was a reasonable accommodation in the circumstances. It was reasonable for Mr. Alcock to expect Harpreet to raise the issue himself if he could not wear a hard hat. Harpreet was a new employee, but he could have raised the issue with someone at WSBC before this point. In any case, he is the only person who knew and understood his own beliefs and needs. To question Harpreet’s decision at this point would have put Mr. Alcock in an awkward position of questioning a new colleague’s own decision about his religious practices. It was not necessary to do this as part of a reasonable accommodation.

[115]       I have also found that Harpreet had not decided for himself that he would never remove his turban for work before he started working at WSBC. By March 2017 Harpreet’s view was that he should not have been put in that position, and he now says that Mr. Alcock should have reassured him that he did not need to remove his turban to wear a hard hat, but that is not reasonable when he had not yet decided for himself that he would never remove his turban for work purposes.

[116]       Harpreet essentially says that WSBC and Mr. Alcock should have made it easier for him to decide not to remove his turban by reassuring him that he did not need to do so, but this was his personal decision to make according to his own faith and practices. The Inspection Incident was the first time Harpreet came across a situation at WSBC where an employee would ordinarily wear a hard hat, and he quickly decided that he would remove his turban. Mr. Alcock did not direct or require Harpreet to do this but asked him whether or not he could wear all of the required PPE, including the hard hat, and left it up to him to make his own decision. This discharged the duty to accommodate Harpreet in the circumstances, so this incident was not a breach of the Code.  

D.    IUOE Site Incident

1.      Findings of what occurred

[117]       Harpreet’s nPOD class took a field trip to the IUOE training site on March 2, 2017. On March 1, 2017, Harpreet emailed his nPOD instructors, Steven Mah and Andrew Lim, to ask to meet with them at the end of the day after class.  At the end of the day Harpreet went to speak to Mr. Mah and Mr. Lim and asked them whether hard hats would be required the next day.

[118]       Harpreet’s timing of raising the issue only the day before the trip is relevant to my analysis of whether WSBC reasonably accommodated him.

[119]       The nPOD instructors made it clear to the class that they needed PPE, including hard hats, for this field trip weeks before March 1. Ms. Berntson was in Harpreet’s nPOD class. She and Mr. Mah both testified that Mr. Mah reminded the class that students from out of town needed to bring their PPE with them for this section of their training because they would need it for the site visit. I accept their evidence. The class needed to know to bring their PPE for this trip, and it is logical that the instructors would give them this information.  

[120]       When Harpreet met with Mr. Mah and Mr. Lim on March 1, 2017, he asked them whether they thought he would need to wear a hard hat at the site the next day, because he could not wear one. Harpreet testified that Mr. Mah reassured him by saying no, they had not had to wear hard hats on that site before, and making a joke about how they had hired Harpreet to do risks assessments and stay safe on a site.

[121]       Mr. Mah says he did not definitively tell Harpreet that he would be able to attend the training without a hard hat, because he was not sure that was the case and he knew everyone was required to bring their PPE, but he may have told Harpreet that it was possible that there could be no live equipment on the site the next day. After talking to Harpreet, Mr. Mah tried phoning IUOE, but they were already closed for the day. He then emailed Doug Younger, an OSO with expertise in cranes who was leading the training the following day, to confirm that there would be no live equipment and Harpreet would be able to participate. In any case, Harpreet’s impression was that there would be no problem. 

[122]       Mr. Younger responded to Mr. Mah to say he did not know how the IUOE would react to a request that a member of the class not follow the general safety requirements for the site, and said he may have been able to confirm with them in advance with more notice, but he would have to see what they said the next day. Mr. Younger’s evidence is that he could already foresee the request being a problem because he knew that the IUOE site is large and they usually have more than one training session happening at once, so it was likely that there would be training happening with live equipment.

[123]       Mr. Younger arrived at the IUOE site early on March 2. He went to the main office at the site and talked to a head trainer and administrative assistant and explained that WSBC had a trainee who wears a turban and asked what they could do about the hard hat requirement. The IUOE staff went over their safety manual and said their requirement was to wear a hard hat at all times on the site.

[124]       There is no dispute that it is up to IUOE as the manager of the site to decide, according to the Regulation, whether and when a hard hat is required for anyone who goes to the site.

[125]       Mr. Younger asked the IUOE staff whether there was any way to accommodate Harpreet that day, and the IUOE staff said there were two other training groups on site, one doing mobile crane training and another that would be moving heavy equipment on the site, so they could not be flexible about the hard hat requirement. Mr. Younger asked whether he could drive Harpreet to a trailer on the site where his class would be doing classroom training, and the IUOE staff agreed to this.

[126]       Mr. Mah arrived after Mr. Younger had spoken to the IUOE staff, and the two of them discussed how they could accommodate Harpreet in the situation. In addition to the option for Harpreet to do the classroom training in the trailer, Mr. Mah said he could offer to drive Harpreet back to the Richmond classroom if that was his preference, and Mr. Younger said he could offer Harpreet one-to-one training at another time.

[127]       When Harpreet arrived, Mr. Mah and Mr. Younger told him that he would not be able to walk onto the site without a hard hat and made suggestions of what they could do to accommodate him. In the course of their conversation Mr. Mah and Mr. Younger gave Harpreet the options of going back to the classroom, doing training with Mr. Younger at another time, or driving to the trailer. Harpreet suggested that he could do a risk assessment to determine whether a hard hat was actually required to protect his safety in the areas they would be going to for their training. Mr. Younger said that was not possible in the circumstances because they were guests at the site and had to follow the site rules. Harpreet decided to stay and attend the classroom portion of the training in the trailer.

[128]       Harpreet says he asked whether he could step onto the site grounds, Mr. Mah and Mr. Younger extended their arms, and he wondered if they were going to physically hold him or push him back. He testified that he had to get into the back of a small car to drive to the trailer, and a trainer looked over his shoulder while he was in the trailer as if they were suspicious of him. He felt like an outcast.

[129]       Mr. Mah says that when Harpreet decided that he would go to the trailer and walked towards the gate he put his hand up to stop Harpreet from walking onto the site where PPE was required, and he drove Harpreet to the trailer in his car. Mr. Mah says he was using his family car at the time, which was a regular-sized car, and it did not occur to him that it might be disrespectful to Harpreet for him to sit in the back seat for a short drive. Mr. Mah says he recalls that Harpreet seemed frustrated about the situation but he was still friendly and jovial. Mr. Mah says he stayed in the trailer with Harpreet for most of the day, other than stepping out for phone calls at times, because it seemed like the right thing to do instead of leaving Harpreet alone while the rest of his class was out doing the field training.

[130]       I accept that Harpreet felt like an outcast when he was not able to attend the field portion of the training because he could not wear a hard hat. It was very hard for him to stand out and sit out the field portion of the training. I find that the situation was inherently difficult for these reasons, but Mr. Mah and Mr. Younger were respectful to Harpreet and did not add to the difficulty of his situation in how they treated him. They had the unfortunate task of telling Harpreet that he could not go onto the site without a hard hat and that he needed to go in a car to the trailer, but they were not rude or disrespectful to him.

2.      WSBC reasonably accommodated Harpreet in the circumstances

[131]       There was an adverse impact on Harpreet in which his religion was a factor in this instance because the IUOE site had a requirement to wear a hard hat to attend the field portion of training that the rest of Harpreet’s class did. Harpreet could not participate in the training with his class because he could not wear a hard hat without removing his turban.

[132]       I find that WSBC reasonably accommodated Harpreet in the circumstances. Mr. Younger and Mr. Mah, or others at WSBC, may have been able to come up with other ways of accommodating him with more time, but they did not have more time.

[133]       Harpreet submits that it was obvious that he wore a turban, and WSBC should have known that he would need accommodation for the IUOE site training. He testified that when the nPOD instructors told the class they would need PPE, they should have known that he would not be able to wear a hard hat and that generally referring to PPE meant something different for him.

[134]       Mr. Mah testified that he did not foresee the hard hat requirement being an issue for Harpreet. He assumed that if there was any issue, Harpreet would raise it. This was a reasonable approach in the circumstances. Mr. Mah testified that he had seen Harpreet without his turban at a social event after class. He says Harpreet’s hair was parted in the middle but not long enough to be pulled back, which is consistent with the Restaurant Photo. He could not have known Harpreet’s practices related to wearing his turban. Only Harpreet knew this, and if Harpreet decided after the Inspection Incident that he would not remove his turban for work purposes again, he could have raised this with his nPOD instructors earlier than he did.      

[135]       Harpreet also submits that WSBC could have done more after he explicitly notified Mr. Mah and Mr. Lim after class on March 1, 2017, that he could not wear a hard hat. I find that this is not the case, and that Mr. Mah and Mr. Younger accommodated Harpreet the best they could in the time they had.

[136]       Mr. Mah did not know whether or not a hard hat requirement would be an issue the following day, so he tried calling the IUOE site and he emailed Mr. Younger, but it was too late in the day to discuss the issue with anyone at IUOE. Mr. Younger went to the site early on March 2 to discuss the issue with IUOE and learned that the hard hat requirement was not negotiable that day because of the training that was happening on the site.

[137]       Harpreet submits that Mr. Younger and Mr. Mah unreasonably dismissed his alternative suggestions, such as being part of a buddy system or standing behind other trainees, out of hand. He submits that they could have made better efforts to properly consider Harpreet’s suggestions by at least facilitating a discussion with IUOE representatives.

[138]       I find that Mr. Younger and Mr. Mah were not obligated to consider Harpreet’s suggestions in the circumstances. They knew that IUOE would not allow an exception to its requiring hard hats on the site that day. They may have been able to facilitate a discussion with IUOE and consider other options with more time, but they did not have more time. The duty to accommodate Harpreet in the circumstances did not include a duty to question IUOE about whether they really needed to require hard hats on site that day under the Regulation when there were other groups training on the same day. WSBC would have needed more time to look into the possibility of using the IUOE site for their training without the need for everyone on site to wear hard hats.  

[139]       Harpreet says he asked to speak with someone from IUOE himself on March 2, and no one facilitated this. He says Mr. Younger had a relationship with the IUOE staff that would have allowed him to do this, and he should have done so as part of a reasonable accommodation.

[140]       Again, I find that WSBC was not obligated to do this in the time they had when Mr. Younger and Mr. Mah already knew that IUOE would not allow Harpreet onto the site without a hard hat on that date.

[141]       The IUOE Site Incident was not a breach of the Code.

E.     WSBC’s duty to accommodate Harpreet was not triggered before the Inspection Incident, or between the Inspection Incident and the IUOE Site Incident

[142]       Harpreet submits that WSBC’s obligation to accommodate him arose when WSBC hired him in July 2016, or at least at the very start of his employment in November 2016, because WSBC knew that he wore a turban and knew that situations would arise where he would ordinarily need to wear a hard hat to do his job. Harpreet says WSBC had a duty to inquire into his need for accommodation. Essentially, he says that the Inspection Incident and IUOE Site Incident could have been avoided if WSBC had created a plan to accommodate him in advance.

[143]       I find that WSBC’s duty to accommodate Harpreet first arose with the Inspection Incident. This was the first time Harpreet experienced an adverse impact in his employment of a requirement to wear a hard hat to go to a worksite. The second time he experienced an adverse impact was the IUOE Site Incident, which was the first time he told anyone at WSBC that he would not be able to remove his turban to wear a hard hat.

[144]       Harpreet submits that WSBC knew or should have known that it would need to accommodate his religious beliefs when it came to the hard hat requirement as early as July 8, 2016, during his hiring process. Harpreet points to notes from the director of HR at the time, which say that an HR advisor spoke to Mr. Mitton, and they discussed that WSBC may need to accommodate Harpreet due to religious reasons because he has a beard and wears a turban.

[145]       The HR director and HR advisor did not testify at the hearing. The HR director’s notes, which are dated March 16, 2017, say that the HR advisor spoke with Mr. Mitton on July 8, 2016:

…and discussed with him that we may need to accommodate [Harpreet] due to religion [sic] reasons because [Harpreet] has a beard and wears a turban. The HR advisor had a discussion with [Harpreet] around this time but it is unclear from the email if they were discussing alternatives for the respirator or the hard hat…

[146]       These notes refer to an attached email dated July 8, 2016. This appears to be a reference to an email between Harpreet and the HR advisor, but no party disclosed this email or introduced it into evidence. In any case, WSBC was aware that Harpreet wears a turban and may need accommodation if he came across a requirement to wear a hard hat. Mr. Mitton in particular was aware of this. Mr. Mitton testified that he asked HR whether they had checked in with Harpreet about whether he could wear a hard hat, but no one told him that Harpreet was unable to wear one. He says he was not concerned about having a plan in place in advance because OHOs do not often need to wear hard hats and he believed this would be easily accommodated if the issue ever arose.

[147]       WSBC has never required Harpreet to remove his turban to wear a hard hat in order to do his job. OHOs at WSBC do not often need to wear hard hats. OSOs and OHOs must wear hard hats if they go to inspect or visit worksites where hard hats are required. Worksite employers, prime contractors or owners determine whether to require hard hats at their sites based on theRegulation, which says they must require hard hats in work areas where there is a risk of head injury to a worker from falling, flying or thrown objects, or other harmful contacts. OSOs who primarily work in the construction industry often go to worksites with these risks and must wear hard hats. OHOs rarely go to sites with these risks.   

[148]       WSBC did inquire about whether or not Harpreet could wear a hard hat the first time he came across a requirement to wear one at a worksite. Mr. Alcock did this when he asked Harpreet whether he could wear all of the PPE required to visit a construction site. Mr. Alcock was prepared to accommodate Harpreet if he had said he could not wear a hard hat, including raising the issue with a manager if he and Harpreet could not address it themselves, but Harpreet’s response to the inquiry was to say that he would remove his turban to wear the hard hat.

[149]       Harpreet then raised the issue himself the day before the IUOE site training, and WSBC reasonably accommodated him in the circumstances.

[150]       WSBC could have proactively inquired with Harpreet about whether he could wear a hard hat when he was hired or near the start of his employment, but I find there was no obligation to do so in the circumstances of this case. WSBC did not hire Harpreet into a position where hard hats would often be required, like an OSO with a focus in construction. Mr. Mitton’s view that it would be easy to address the issue if it were to come up was reasonable in the circumstances where the issue was not expected to come up often.

[151]       Inquiring about whether Harpreet could wear a hard hat only once the issue actually arose was not Harpreet’s preferred approach, but it was reasonable in the circumstances. WSBC did not breach the Code by not inquiring with Harpreet earlier in his employment.

F.      Accommodation Plan Allegations      

[152]       Harpreet alleges that once he made it clear that he was not able to wear a hard hat, this created adverse impacts in his employment and WSBC did not adequately accommodate him. He says WSBC did not take his need for accommodation seriously, the Accommodation Plan they implemented for him did not address adverse impacts on him from his inability to wear a hard hat, and some aspects of the plan actually created some adverse impacts in his employment.

[153]       Here I address each of Harpreet’s Accommodation Plan Allegations and explain why I find that WSBC did not breach the Code.

[154]       In summary, I find that WSBC took Harpreet’s need for accommodation seriously. The goal of the Accommodation Plan was to avoid situations like the Inspection Incident where Harpreet felt he was put in a position of needing to face the hard hat issue to do part of his job, or like the IUOE Site Incident where he went to a site where hard hats were required and could not attend all of the training with the rest of his class.

[155]       Harpreet did not come across any similar situations where it was necessary to wear a hard hat as part of his job after the IUOE Site Incident. This is not surprising, because OHOs generally do not need to wear hard hats to do their jobs. The Inspection Incident and IUOE Site Incident both happened during general training for all new OSOs and OHOs, including those who would not normally go to construction sites for their work. It was likewise straightforward to accommodate Harpreet to avoid similar instances coming up for him again because it is rare that he would need to wear a hard hat to do his job in the first place. It may have been the case that no similar situations would have come up for Harpreet again without an Accommodation Plan, but the plan set out for Harpreet how such situations would be avoided. The plan did not create any adverse impacts in Harpreet’s employment.

1.      March 17, 2017, accommodation meeting

[156]       Harpreet met with Ms. Naish and Mr. Mitton on March 17, 2017, to discuss his need for accommodation. Harpreet alleges that he could tell they did not take his accommodation needs seriously.

[157]       I find that Mr. Mitton and Ms. Naish took Harpreet seriously and handled his accommodation needs respectfully.

[158]       Mr. Mitton was in Richmond at the time of the IUOE Site Incident and he met with Harpreet there on March 3, 2017. This incident was the first time Mr. Mitton learned that Harpreet would not remove his turban to wear a hard hat, and he told Harpreet that he would work with him on the issue. Mr. Mitton spoke to Mr. Lim to determine whether there were any other site visits during nPOD training where a similar issue might arise, and confirmed there were not. Mr. Mitton also spoke to Ms. Naish about how to accommodate Harpreet. Mr. Mitton did all of this quickly once he was aware of the issue and was supportive.

[159]       Ms. Naish took notes of the March 17, 2017, meeting, which are three typed pages long. She testified to her recollection of the meeting. Harpreet also took notes of the meeting. His notes are one handwritten page long and consist of three particular points that Ms. Naish made at the meeting, and a note that Harpreet felt moments of discomfort.

[160]       Harpreet submits that Ms. Naish’s notes are selectively incomplete because they do not include a reference to a comment that she made at the hearing. Harpreet testified that Ms. Naish said that a person who is blind is not able to fly an airplane, like a person who wears a turban is not able to wear a hard hat to do some jobs. Harpreet also submits that Mr. Mitton’s evidence is not credible because in an affidavit made January 21, 2019, in support of WSBC’s reply submission on the application to dismiss the complaint, he said that neither he nor Ms. Naish made a comment to this effect at the meeting.

[161]       Ms. Naish testified that she made her comment at the meeting after Harpreet discussed cases where courts have determined that a Sikh person may wear a turban as part of a uniform, such as for the RCMP. Ms. Naish says she explained that the RCMP issue is related to uniforms, while the hard hat requirement is related to safety and is a BFOR. She explained that she made her comment to give a clear example of a BFOR. 

[162]       Harpreet found Ms. Naish’s comment to be offensive. He made note of it in his notes of the meeting. He says he was insulted and started to get up to leave, but Mr. Mitton looked at him and made a hand gesture that made Harpreet think Mr. Mitton had his back, so he stayed. Mr. Mitton testified that he does not recall this and does not recall Ms. Naish’s comment. 

[163]       Harpreet submits that Mr. Mitton’s affidavit evidence blatantly contradicts Ms. Naish’s testimony and that this impugns Mr. Mitton’s credibility.  

[164]       I find that Mr. Mitton’s statement in his affidavit does not impugn his credibility.

[165]       Mr. Mitton made his statement in his affidavit in response to a statement in Harpreet’s affidavit in response to the application to dismiss, which says, “I was advised that ‘just like a blind man is not fit to fly an airplane, people who wear Turbans are not fit in all workplaces.” 

[166]       I accept Ms. Naish’s evidence that she gave the airplane example to explain the concept of a BFOR, and that she explained that the need to remove a turban to wear a hard hat is a BFOR in some cases, which is different from the issue of whether a turban is an appropriate part of a uniform. She did not say that people who wear turbans are not fit for all workplaces. Harpreet’s evidence at the hearing is consistent with this. He testified that Ms. Naish said those who wear a turban cannot do some jobs. This is more consistent with Ms. Naish’s evidence that she made her comment in the context of explaining the concept of a BFOR than Harpreet’s statement in his affidavit.  

[167]       I accept Mr. Mitton’s evidence that he does not recall Ms. Naish’s comment. He responded to Harpreet’s affidavit evidence in his own affidavit based on his recollection of the meeting. I would not expect a witness to recall all details from a meeting almost two years later, and it is accurate that no one at the meeting said that people who wear turbans are not fit for all workplaces.  

[168]       I accept that Ms. Naish’s notes are an accurate representation of what she and Mr. Mitton discussed with Harpreet. They do not capture all of the details of what was discussed, but I would not expect them to, and I find that they are not selectively incomplete. I also accept Harpreet’s notes as accurate, but they are much less detailed than Ms. Naish’s notes.

[169]       At the start of the meeting, Harpreet confirmed that his turban is part of his work attire and that he cannot take it off. Ms. Naish asked him whether he could wear a modified hard hat over his turban or wear a modified turban, and he responded that he cannot wear anything over his turban that would distort its shape. Harpreet said his understanding was that he would not be required to wear a hard hat for his job. Mr. Mitton said that WSBC must make sure that Harpreet is protected from risks of injury when representing the organization at worksites, and there may be alternate work that can be done without the need to wear a hard hat. Ms. Naish asked Harpreet whether he had removed his turban at work so far. Her notes say Harpreet explained that he had done this for the Inspection Incident, when he was “put in a position” to remove his turban and put on a hard hat when he went to the worksite with Mr. Alcock.

[170]       I explained above in the analysis of the Inspection Incident that Harpreet says he told Ms. Naish and Mr. Mitton that Mr. Alcock forced him to remove his turban, and I explained why I do not accept his evidence that he described the incident this way at this meeting. I find that Harpreet told Ms. Naish and Mr. Mitton at the meeting that he was put in a position to remove his turban and did not tell them that Mr. Alcock forced or compelled him.

[171]       Harpreet submits that by telling Mr. Mitton and Ms. Naish that he was “put in a position” to remove his turban he conveyed to them that he was compelled to do so. He says the fact that they did not delve further into this issue demonstrates that they were not serious about accommodating him. He submits that their failure to delve further into the matter was arguably discriminatory in and of itself.

[172]       I find that Ms. Naish and Mr. Mitton’s response to Harpreet’s explanation of the Inspection Incident at the meeting was not discriminatory and did not indicate a lack of seriousness about WSBC’s obligation to accommodate him. Harpreet did not tell them that Mr. Alcock compelled or pressured him. The purpose of this meeting was to accommodate Harpreet so he would not be in a similar position again of coming across a requirement to wear a hard hat to a worksite without a plan in place.

[173]       Harpreet testified that Ms. Naish did not take his accommodation need seriously. He found her airplane comment to be offensive because he thought she was comparing wearing a turban to having a disability or disease. In cross examination he said Ms. Naish was laughing, as if the situation was a joke to her and she was suggesting that he could not be a safety officer. He says that when someone is seriously listening to him, he can feel that, but in this case, he felt as if he was being mocked.

[174]       Ms. Naish testified that she recognized the sensitivity of Harpreet’s need for accommodation. I accept that she recognized the sensitivity of the issue at the meeting. She was professional and respectful. She used a clear and straightforward example to explain the concept of a BFOR. I accept Harpreet’s evidence that he felt uncomfortable at the meeting and that addressing his need for accommodation at work was difficult for him, but a need for accommodation is not insulting whether the need is based on religion or disability. Ms. Naish was not mocking Harpreet. 

[175]       Harpreet testified that within a week of the meeting he felt that he had been subjected to “very sophisticated racism” because Ms. Naish and Mr. Mitton were chuckling, ignoring him and not paying attention, and mocked him. In cross examination Harpreet said he cannot be blamed for how he reacts to something because of his own convictions, life experience, education, culture, tolerance, and values.

[176]       I do not question Harpreet’s evidence about how he felt about needing an accommodation and going through the accommodation process. I accept that the situation was difficult for him, although Ms. Naish and Mr. Mitton did not know this at the time of the meeting. I do not question the difficulty of Harpreet needing to seek an accommodation at his workplace because he wears a turban, which is an essential part of his faith and identity. The experience was inherently difficult for him, but Ms. Naish and Mr. Mitton did not add to the difficulty by treating Harpreet badly or failing to take him seriously. They were professional and respectful in how they addressed the issue.

[177]       At the end of the meeting Ms. Naish told Harpreet that his accommodation was a sensitive and serious issue and there would be other levels of people involved, so she did not expect to provide him with a solution to the issue in a fast turnaround time. Harpreet said he understood this, and that he was still in nPOD until June, then would be working on a project. Mr. Mitton confirmed that Harpreet would probably not be actively working in the field until the end of the year.

2.      Accommodation Plan

[178]       After the accommodation meeting, Ms. Naish and Mr. Mitton talked about Harpreet’s need for accommodation. They did not want him to be in a similar situation as he was in the IUOE Site Incident again, so they wanted to have clear parameters for his PPE requirements and his ability to respond to any calls for an officer to attend a worksite that required hard hats. They understood that it would be rare for this to come up for an OHO, but they wanted a plan in place in case it did come up.

[179]       Ms. Naish worked with Mr. Mitton to create a draft accommodation plan. She also sought support from a labour relations manager for a template and to liaise with the Union, which is also a party to an accommodation plan for unionized employees at WSBC. Ms. Naish, Mr. Mitton, and a Union business agent met with Harpreet on October 30, 2017, to present him with a draft plan for his review. Harpreet emailed Ms. Naish and Mr. Mitton on November 2, 2017, to ask them about some of the language in the first draft, including the reference to him as a “first responder”, and language that said that if he went to a site where a hard hat was required for access, he would not access the worksite or push the issue, take matters into his own hands, or attempt to influence the employer, but would step back and request the support of another officer.       

[180]       The context for this language in the first draft of the accommodation agreement is that Harpreet felt that he should be able to do his own risk assessment any time he came across a worksite that required hard hats to determine for himself whether a hard hat was really required.  Ms. Naish revised the draft based on Harpreet’s comments. She left in the requirement that Harpreet would not access worksites with a hard hat requirement but changed the language, as set out below. She also removed the reference to a “first responder” in response to Harpreet’s comments. Harpreet wanted this reference removed because he understood it as referring to him as a first responder to an emergency, like fire fighters or paramedics, and he wanted it to be clear that his role is not one of a first responder in that sense. Ms. Naish and Mr. Mitton had meant to refer to Harpreet as the first responder from WSBC to an incident but had no issue with removing that language for clarity.

[181]       Harpreet signed the Accommodation Plan on November 15, 2017. The Accommodation Plan says that Harpreet may wear his turban at work. It says that some worksites in BC, such as construction sites, require anyone on the site to wear a hard hat for safety reasons. To address the hard hat issue, the plan says that:

a.      If a hard hat is required to access a site in any capacity of his role as an OHO, Harpreet will not access the site nor attempt to access the worksite and will request the support of another officer;

b.      He will contact his manager or supervisor for any support necessary in his role;

c.       He will not be signed up for the weekly rotation on the “duty officer” desk that is assigned to all officers, which will eliminate any requirement to attend work sites that may require wearing a hard hat while working at the duty officer on-call;

d.      He will be assigned a double rotation on the “response duty” desk to account for the missed rotation on the “duty officer” desk;

e.      He will be on the after-hours call-out list for occupational hygiene calls only as the majority of those calls will not require wearing a hard hat; and

f.        Upon receiving a call-out, if at any point he learns that a hard hat is required to access the site, he will inform the after-hours duty manager to dispatch another officer.

[182]       Harpreet testified that he was not happy with the Accommodation Plan. He submits that WSBC should have done more to accommodate him in any instances where a worksite required hard hats as a blanket policy but may not have done an assessment on a particular day of whether hard hats really were required to protect workers’ heads from possible falling objects. Harpreet felt that, in any instances like the IUOE Site Incident, he should be able to assess for himself whether hard hats were really required, and he wanted WSBC to support him in doing this.

[183]       I find that WSBC was not required to accommodate Harpreet by allowing him to do his own risk assessment and decide for himself whether he needed to wear a hard hat at a worksite that generally required them. It was not necessary to do this to allow Harpreet to do his job without removing his turban. The need to wear a hard hat as an OHO was rare and there was plenty of work for him to do that did not require going to worksites where hard hats are required. The Accommodation Plan worked to reduce the chances that he would come across an unexpected situation where he only realized in the moment that a hard hat was required.

[184]       Harpreet submits that the Accommodation Plan was inadequate considering the wording of the provision of the Regulation about hard hats at the time. His view is that worksites did not do full risk assessments to determine whether hard hats were necessary under the Regulation at the time, and they are more likely to do so after the Regulation was amended in 2021 or 2022 to say that worksites must only require hard hats if it is not practicable to eliminate the risk, or minimize it to the lowest level practicable with engineering controls or administrative controls. Essentially, Harpreet’s view is that, before this amendment, worksites had blanket policies requiring hard hats without having assessed whether there were other ways to protect workers and reduce risk.

[185]       I find that the wording of the Regulation at the time did not obligate WSBC to accommodate Harpreet any differently from the accommodation set out in the Accommodation Plan. Worksites were required to do risk assessments before implementing hard hat requirements before this amendment; the requirement to do so was elsewhere in the Regulation before this particular provision was revised for clarity. In any case, if Harpreet were to come across a rare situation where he arrived at a worksite and a hard hat was required to enter, as happened during his training, WSBC would have accommodated him by not requiring him to go onto the site. This is a reasonable accommodation in the circumstances of his position, and it was not necessary to accommodate him by questioning a worksite’s safety requirements on the spot. The Accommodation Plan also allowed worksites with a hard hat policy to arrange for Harpreet to attend without a hard hat with some notice if that were ever necessary. This came up once, and I explain below that the worksite at issue was willing and able to make adjustments so Harpreet could go to the site without a hard hat.

[186]       I find that the Accommodation Plan was adequate on paper because it set out how Harpreet could do his job as an OHO without attending worksites where hard hats are required. Under the plan he would not need to remove his turban to do his job.

[187]       I next address each of Harpreet’s specific allegations related to the Accommodation Plan and explain why I find that the plan also worked in practice and did not create any adverse impacts in Harpreet’s employment. 

3.      Harpreet’s need for accommodation did not slow down his training

[188]       Harpreet alleges that his need for accommodation slowed down his training period, so it took him longer to be able to do the full OHO job. He testified that he could not do anything without having signed the Accommodation Plan. He did not provide any examples of training or work that he was not able to perform before the plan was in place.

[189]       There is no evidence to support Harpreet’s claim that his need for accommodation slowed down his training or progress. He points to notes of a probation and mentoring meeting dated June 21, 2017. There is no evidence of whose notes these are. The notes say that Harpreet’s priority is to complete his Inspection Guides, and that he may not be able to achieve some of them because of the restriction of not being able to wear a hard hat. The notes say, “For now we will restrict his activity to ensure his safety and compliance and consider the IG’s he is not able to achieve in the near future”. Harpreet says this is evidence of a restriction on his activities. However, he did not testify about any Inspection Guides that he was not able to complete.

[190]       Mr. Mitton testified that it turned out there were no Inspection Guides that Harpreet could not complete because of the hard hat issue. Mr. Mitton says the June 21 notes reflect the stage Harpreet would have been at by that date regardless of whether he needed an accommodation or not. On September 29, 2017, Mr. Mitton emailed Ms. Naish to tell her that Harpreet had completed nPOD, was working on completing his Inspection Guides, and was not yet at the stage of doing solo inspections. Mr. Mitton told Ms. Naish in this email that he had spoken to Harpreet and to ask him whether he was comfortable telling officers about his hard hat limitation, and Harpreet had said that he was. Mr. Mitton testified that, ultimately, there were no Inspection Guides that Harpreet was not able to complete because he could not wear a hard hat.

[191]       I accept Mr. Mitton’s evidence. Harpreet did not give any contradictory evidence about any Inspection Guides or other work or training he was not able to do, and he completed all of his required Inspection Guides without coming across a hard hat requirement. The June 21, 2017, notes do not suggest that Harpreet’s need for accommodation slowed him down but suggest that WSBC would address any Inspection Guides that were an issue in the “near future”. Ultimately, no issues arose. There was no adverse impact in Harpreet’s employment related to the timing of completing his training, or any requirement to wear a hard hat after the IUOE Site Incident.

4.      Harpreet’s Accommodation Plan did not adversely impact his work assignments or opportunities

[192]       Harpreet alleges that the Accommodation Plan generally fell short for him because he did not have the same opportunities as his colleagues, which meant he did not earn as much overtime pay and did not gain as much useful work experience.

[193]       I find that WSBC’s manner of accommodating Harpreet with the Accommodation Plan did not have any adverse impacts on his work opportunities.

[194]       Harpreet testified that the Accommodation Plan impacted the work assigned to him. He says the work that came to him was “profoundly filtered” before it reached his desk because he was not able to go to worksites that had a blanket policy requiring hard hats on site.

[195]       There is no evidence to support Harpreet’s claim that the Accommodation Plan adversely impacted the work assigned to him. Harpreet refers to some specific examples, which I address below and explain that I do not find any adverse impact in his employment in which his turban or the Accommodation Plan were factors.

[196]       Generally, Mr. Mitton, Ms. Berntson, and Mr. Davis all testified that it is rare that an OHO needs to wear a hard hat to perform their job. In cross examination Harpreet was reluctant to acknowledge that Mr. Davis said it was rare for OHOs to wear hard hats. Harpreet said that “rare” could mean 20%, 30%, or even 40% of the time. However, there is no evidence that OHOs need to wear hard hats anywhere close to 20% of the time to do their job. Harpreet gave only one example of an assignment where it was possible that hard hats would ordinarily be required for part of a plant inspection, which I explain below. In that case the site employer was willing and able to accommodate him to do the project.  

[197]       Harpreet testified that he believes there was a hesitation at levels beyond his managers that meant he did not get diverse work. There is no evidence to support this. Harpreet did not testify about work that other OHOs do that he feels he missed out on. He also did not explain any basis for his belief that WSBC was hesitant to assign him diverse work.

[198]       Harpreet testified that there were many instances when he was not able to go to a worksite because he followed the Accommodation Plan, so he had to somehow collect information that was necessary to do his job that was not perfect but met the requirements. He did not explain when this many instances were, but said he did not tell management but “rescued himself” instead so he could avoid confrontation. He gave one example of a project where he did not visit certain areas of the worksite and the department that requested his report was not satisfied with his work, but I explain below that I find his inability to wear a hard hat to visit the worksite was not a factor in that situation. 

[199]       In any case, the purpose of the Accommodation Plan was for Harpreet to be able to do his work as an OHO without needing to wear a hard hat. If there had been instances when he could not visit a worksite because of a hard hat requirement but he was able to do the work some other way, this would show that the Accommodation Plan was working. I agree that an accommodation plan that adversely affects a person’s employment in terms of performance, opportunities, or advancement, for example, might not be reasonable, but Harpreet did not establish that the Accommodation Plan operated this way in practice.

[200]       Harpreet says that not working on the duty officer rotation adversely impacted him in his employment. I find that this was not the case.

[201]       OHO and OSO duties at WSBC generally include rotating through working at a response desk, assignment as a duty officer, and being on an on-call rotation after hours.

[202]       Mr. Mitton and Ms. Berntson testified about officers’ duties while working at the response desk and working as duty officers. When working at the response desk, OSOs and OHOs answer and return calls to members of the public who have called WSBC for information. This allows employers to consult with WSBC about safety, hygiene, and engineering questions without officers needing to go out into the field every time.

[203]       The duty officer role provides coverage for urgent action requests. A duty officer is assigned each day to be available in the office to respond to urgent calls where someone is needed to go to a worksite right away in case the officer who would ordinarily respond is not available.

[204]       Under the Accommodation Plan Harpreet was not signed up for a weekly rotation on the duty officer desk and instead was assigned a double rotation on the response duty desk. Harpreet testified that this resulted in missed opportunities for him. His evidence about this issue was not clear. He testified that he was not suggesting that working at the response desk is somehow lesser than working as a duty officer but also said that he lost leadership opportunities compared to others because a duty officer assigns jobs to others and is more admired. Harpreet says he raised the issue of missing out on the duty officer rotation with managers or supervisors many times.

[205]       Mr. Mitton’s and Ms. Berntson’s evidence about the duty officer role is not consistent with Harpreet’s evidence. They say the duty officer role exists simply to ensure that an officer will be available as a last resort to respond to urgent calls if the officer who would ordinarily respond is not available. Neither Mr. Mitton nor Ms. Berntson recall any instance of a duty officer needing to respond to an urgent call because the officers who would ordinarily respond have always been available to respond. The duty officer role is there simply so WSBC does not come across a situation where they do not have an officer available to respond to an emergency.

[206]       Mr. Mitton testified that not being on the duty officer rotation had no impact on Harpreet’s work. He explained that keeping Harpreet off of the duty officer desk is in the Accommodation Plan because WSBC wanted to reduce the chance that Harpreet may come across a situation where he is called to a worksite where a hard hat is required. In theory, this could happen if Harpreet were on the duty officer desk, there was an urgent call to a construction site, and the officer who would ordinarily respond was not available. 

[207]       I accept Mr. Mitton’s and Ms. Berntson’s evidence. It may be Harpreet’s perspective that working as a duty officer leads to more admiration and opportunity, but his perspective is not consistent with the whole of the evidence. He did not give any examples to contradict WSBC’s evidence that no one has needed to respond to an urgent call while working as a duty officer since he has been at WSBC. His perspective that duty officers are in charge for the day and assign work to others is also not consistent with evidence before me that there is a relief supervisor role that OHOs and OSOs must apply for if they are interested in supervisory work, which I discuss below under an allegation specifically related to Harpreet not performing supervisory work.

[208]       The evidence also does not support Harpreet’s claim that he missed out on opportunities to earn overtime pay because he did not work as a duty officer. Harpreet did not introduce any evidence of any officers earning overtime while working as a duty officer and did not dispute WSBC’s evidence that no duty officer has had to respond to an urgent call during his time at WSBC. He also did not dispute evidence from WSBC that he had more overtime hours in 2018, 2019, and 2020 than the other OHOs, and more than some OSOs.

[209]       Harpreet also claims that a provision in the Accommodation Plan related to after-hours on-call work resulted in missed opportunities for him. I find that this is not the case.

[210]       The Accommodation Plan says that Harpreet will be on the after-hours call-out list for occupational hygiene calls only because the majority of those calls will not require wearing a hard hat, and that if he is called to a site where he learns that a hard hat is required, he will inform the after-hours duty manager to dispatch another officer. Harpreet says this meant that he did not have input into whether he could respond to any safety-related calls after hours, and this meant loss of opportunities for development and overtime.

[211]       Ms. Berntson explained how WSBC addresses after-hours calls. An after-hours duty manager takes urgent calls outside of work hours and decides whether each call requires dispatching an officer immediately. If so, the duty manager starts with calling OSOs for safety-related issues, considering the officers’ knowledge of the field related to the issue, and driving distance. If the duty manager is not able to dispatch an OSO, they would normally call a supervisor for advice about how to respond. They would only ask an OHO to respond to an urgent safety-related call in rare circumstances where no OSO is available. If an urgent call is related to occupational hygiene the duty manager follows the same process but with OHOs instead of OSOs. Ms. Berntson only recalls dispatching an OHO to a safety-related call after hours one time, which was years ago in a different region.

[212]       Mr. Mitton testified that OHOs are rarely called out after hours. He says that only 18 out of 143 after-hours calls between 2017 and 2019 were hygiene-related, and most or all of those calls did not need an OHO to go to the site after hours, but they were assigned the next day, with some being assigned to Harpreet. Mr. Mitton says the parts of the Accommodation Plan related to after-hours calls are only in the plan to reduce the chance of Harpreet ever being called to a site where it turns out hard hats are required. Mr. Mitton says it is also open to any officers to suggest that they are not the best person to respond to an urgent call at a particular site because of their knowledge base, and to suggest that another officer be called instead.

[213]       I accept Ms. Berntson’s and Mr. Mitton’s evidence. Harpreet did not introduce any evidence to contradict theirs. He says it was not necessary to remove him from all safety-related callouts, but there are no examples before me of any OHO being called to attend an urgent safety-related call after hours. There is no evidence that this part of the Accommodation Plan resulted in any adverse impacts in Harpreet’s employment. 

5.      June 2019 Fortis Site Inspection Issue

[214]       Harpreet says his need for accommodation and the Accommodation Plan interfered with the work he was assigned and able to perform. He testified about an assignment Mr. Mitton gave him to inspect a worksite in June 2019 as an example of an adverse impact in his employment.

[215]       Fortis was the site employer and generally required hard hats to be worn on the site. Harpreet testified that Fortis was willing to work with him so that he could safely do an inspection at their site, but he brought the issue to Mr. Mitton’s attention and saw hesitation on Mr. Mitton’s part. Harpreet says he thought he was not getting clear direction and felt that WSBC did not trust him, so he asked Mr. Mitton to assign the inspection project to another officer.

[216]       I find that there was no adverse impact in Harpreet’s employment related to this work assignment.

[217]       On May 16, 2019, Mr. Mitton emailed Harpreet to tell him that an inspection at this site was planned for June 25. Mr. Mitton confirmed that he had spoken to Harpreet, Harpreet was going to contact the site employer to determine what PPE was required, and if any requirement might restrict Harpreet’s inspection activities, he would tell Mr. Mitton, and they would talk about it.

[218]       Harpreet then emailed Mr. Mitton on June 4, 2019, and said (as written):                  

Though the Fortis Manager welcomed my participation, I think there will still be issues with my participation from the WSCB side. Probably I would be asked to abide by the site ‘Blanket Safety Policy’, through the employer is ready to accommodate. This is a Process Safety Initiative and going in during the plant ‘turned-off’ might not give me

I understand you want me to participate in this process and I have shown my eagerness as well. However, if you feel that any another officer …can participate in a better way – I am fine with it. Honestly, I am a little stressed thinking about it.  

[219]       Harpreet went on to say other projects he was already working on would take him a significant amount of time.

[220]       Harpreet says he was stressed because he did not see any indication that WSBC would come back to him and encourage him to do the project if there was any issue related to PPE. However, no one from WSBC said or did anything to suggest to him that WSBC would not support and accommodate him if an issue arose. To the contrary, Mr. Mitton assigned the project to Harpreet knowing that the site might have a hard hat requirement and was ready to accommodate Harpreet if necessary.

[221]       Mr. Mitton did not hear anything about a discussion between Harpreet and Fortis before receiving Harpreet’s email. He testified that he did want Harpreet to do this project because he respected Harpreet’s abilities and thought this was a good chance for him to do something that aligned with his interests. Mr. Mitton says he did not think WSBC would have any issue accommodating Harpreet if necessary, and they would have worked with Fortis to accommodate him if that was necessary for Harpreet to work on the project. However, Mr. Mitton did not want to push Harpreet if he was uncomfortable and noted that Harpreet said he wanted to focus on other work, so he agreed to assign the Fortis project to someone else.

[222]       I accept Mr. Mitton’s evidence. His evidence that he respected Harpreet’s abilities and wanted him to work on this project was sincere and credible. He assigned Harpreet to do this work despite knowing that there might be a hard hat requirement at the worksite. It would not have made sense for him to do this if he was not prepared to accommodate Harpreet if necessary.

[223]       It turned out that WSBC would not have had to take any steps to accommodate Harpreet because Fortis was prepared to have him do the inspection and work around his inability to wear a hard hat. On June 21, 2019, an operations manager from Fortis emailed Harpreet and gave him three potential accommodation options for his consideration and comments. The first was that Fortis would do a safety work plan to determine whether there were any overhead hazards, and if there were not, they would note that a hard hat was not required, and deal with any issues as they arose if anything changed. The second option was having Harpreet complete his own risk assessment to add to the Fortis safety plan. The third option was to shut down the plant during the time of Harpreet’s visit, which they would like to avoid, if possible, but it was an option.

[224]       Harpreet responded to the operations manager and said:

I greatly appreciate your effort to accommodate me in this project.

As I learned, there are some impeding PPE policies from WSBC that makes [sic] my participation difficult as proposed. My manager has now assigned this project to another Occupational Hygiene Officer…

[225]       Harpreet went on to say that the other OHO was excellent and Harpreet was sure he would meet the objectives of the project. The operations manager replied and said he was sorry that Harpreet could not attend, he was really hoping to find a way for his visit to work out and thought that it was possible, and Harpreet should feel free to reach out if anything changed that would allow him to visit because he would love to show Harpreet around.

[226]       Harpreet acknowledged in cross examination that the operations manager’s first suggestion was reasonable and that Fortis’ approach was exactly as it should have been. His issue was that he believed Mr. Mitton was hesitant and concerned. Harpreet acknowledged that no one was asking him to abide by a “blanket safety policy”, which he suggested in his email to Mr. Mitton, and said that must have been a typo in his email.

[227]       I do not accept Harpreet’s evidence that his reference to a blanket safety policy in his email to Mr. Mitton was a typo, or an error of any sort. He believed that Mr. Mitton did not support him and that WSBC would require him to follow a “blanket safety policy” even though there was no indication that WSBC would have required him to do anything above Fortis’ requirements.

[228]       There was no adverse impact in Harpreet’s employment. Rather, he chose not to participate in this project because of a belief that Mr. Mitton did not support him. This was not the case, and there was no reasonable basis for Harpreet’s belief.

6.      Exposure report related to a worker’s compensation claim

[229]       Harpreet says that another example of his Accommodation Plan impacting his work related to an assignment to prepare a report related to a worker’s compensation claim for historical exposure.

[230]       There was no adverse impact to Harpreet’s employment related to his inability to wear a hard hat or to his Accommodation Plan in this instance.

[231]       The Occupational Disease Department at WSBC requested an investigation of exposure risks at the worker’s former worksite for the purpose of determining the worker’s compensation claim. Mr. Mitton assigned this investigation to Harpreet because he thought it was a good opportunity to connect with the site employer’s sophisticated hygiene group, and he was qualified to do it.

[232]       Harpreet investigated and prepared a report of his findings. The WSBC Claims Department also sought a clinical opinion from a medical advisor, Dr. Y, to assess the worker’s claim. Dr. Y intended to rely on Harpreet’s report of the worker’s historical exposure.

[233]       Harpreet says Dr. Y shouted at him and bullied him because he was not satisfied with Harpreet’s report because Dr. Y wanted Harpreet to go to the worksite, and he did not visit all parts of the worksite because of his inability to wear a hard hat.

[234]       I find that Dr. Y’s dissatisfaction with Harpreet’s report was not related to Harpreet’s inability to wear a hard hat.

[235]       Harpreet did not tell Mr. Mitton, or anyone else, that the project required a site inspection where hard hats were required, and the evidence does not support his claim that his inability to visit areas of the site where hard hats are required made any difference to his report. Dr. Y ultimately was not satisfied with Harpreet’s report and found that he could not rely on it, but this was not because Harpreet did not do a site inspection. The issue had no connection to Harpreet’s inability to wear a hard hat or his Accommodation Plan. Dr. Y expressed concerns about Harpreet’s report in email correspondence, which were that Dr. Y wanted Harpreet to interview the worker and Harpreet did not do so, Harpreet used historical data to create an exposure matrix that Dr. Y said Harpreet did not adequately explain, and Dr. Y’s view was that Harpreet overstepped beyond his role to comment on the medical question that was the subject of Dr. Y’s report.

[236]       Harpreet says Dr. Y criticized him for not going to the worksite during the phone call. Mr. Mitton also participated in this phone call and says Dr. Y did not raise the issue of going whether Harpreet went to the worksite. I find it is more likely that Dr. Y’s concerns were related to the issues he set out in writing in emails.

[237]       Mr. Mitton did not criticize Harpreet or treat him negatively. He tried to help Harpreet resolve the issue with Dr. Y and find some common ground between them but was not able to do so.    

[238]       Finally, Harpreet submits that Dr. Y ended up conducting the exposure investigation himself and did not invite Harpreet to go along with him because it was well known that Harpreet would not be able to access all areas of the worksite. There is no evidence of this. I find based on Dr. Y’s emails, and Mr. Mitton’s evidence about this issue, that Dr. Y was not satisfied with Harpreet’s report for reasons unrelated to his inability to wear a hard hat.

7.      Fatal crane incident

[239]       In July 2021 there was a devastating crane accident in the area of the Regional Office. Sadly, several workers were killed in the accident. Harpreet was the OHO for the area at the time and was not asked to participate in the investigation. He alleges that his inability to wear a hard hat was a factor in the decision not to call upon him to assess any hygiene-related risks from the incident. Harpreet thought that the accident may have disturbed asbestos and later realized that workers at the scene may have been exposed to asbestos, and he believes he should have been included in the initial investigation process for this reason.

[240]       Mr. Alcock testified about this incident and the reasons he says Harpreet was not involved in the initial response. Mr. Alcock led the WSBC response and arrived at the scene shortly after the accident happened. He spoke to Mr. Mitton about who should attend, and they decided that he would bring one officer with crane expertise and another who had helpful experience with parties who were involved. Mr. Mitton did not go to the scene, and they did not have any OHO attend because it is not useful to have extra people at the scene of an accident with multiple fatalities.

[241]       I accept Mr. Alcock’s evidence. WSBC not involving Harpreet in the initial investigation was not an adverse impact in employment and was not related to his inability to wear a hard hat. WSBC did not send Harpreet to the scene in response to the incident because it was not necessary to have an OHO there and it would not have been helpful.  

8.      WSBC did not fail to accommodate Harpreet by not following up on the Accommodation Plan

[242]       Harpreet submits that the Accommodation Plan was supposed to be temporary, and he only signed it despite it being deficient because it was not permanent. He says there should have been meetings to follow up on the plan where WSBC took his feedback and further worked on his accommodation.

[243]       I find that WSBC did not fail to accommodate Harpreet by neglecting to follow up on the Accommodation Plan.

[244]       The Accommodation Plan itself says:

A review of your accommodation plan will be conducted by the Employer, the Union and you at the three month and six month mark in order to assess and monitor if the accommodation plan as outlined above is working for the parties. If there are no concerns identified at the six month mark, a regular review will be scheduled to assess the accommodation plan and make any adjustments if necessary.

If anything changes that might impact the above, it is your obligation to advise your manager immediately and take the necessary steps to provide us with updated information. If this occurs, we will meet with you and your Union to discuss what steps need to be taken.

[245]       Harpreet submits that the Accommodation Plan was never formally or informally reviewed, he had ongoing issues with it, and that WSBC failed in its duty to meet with him to review the plan and how it was working so it could take steps to address his ongoing issues.

[246]       WSBC submits that Mr. Mitton did have follow up discussions with Harpreet about the Accommodation Plan, and that Harpreet did not raise any issues with the plan so there was no need to revise it.

[247]       Mr. Mitton testified that he informally checked in with Harpreet about the Accommodation Plan. He made notes of doing so on June 18, 2018, which say, “The accommodation has had no issues to date and we will continue to monitor.” Mr. Mitton says he did not make notes every time he spoke to Harpreet about the Accommodation Plan, but that he made sure Harpreet knew that he could talk to Mr. Mitton or his supervisors about any issues that might come up as they checked on how the accommodation was going. Mr. Mitton and Ms. Berntson both say that no one, including Harpreet, raised any issues with them to suggest that the Accommodation Plan was not working. Instead, they both say that no one, including Harpreet, told them about any issues with the Plan.

[248]       In cross examination Harpreet first denied that he talked to Mr. Mitton about his accommodation on June 18, 2018. He later acknowledged that he did tell Mr. Mitton at that meeting that there were no issues but said that the plan had not really “kicked off” with him doing independent inspections by that date. Harpreet’s evidence is that there should have been specific meetings about the plan so it could evolve, and it should not have been incumbent on him to discuss the plan.

[249]       Harpreet testified that the Accommodation Plan was just a piece of paper and those who created it went back to focus on their own work, but they should have created an accommodation that was in the spirit of giving him the same opportunities as anyone else instead of holding him back. He says the process would truly start when he started giving feedback and they started working more on the Plan.

[250]       I accept Mr. Mitton’s evidence that he informally checked in with Harpreet about his accommodation on June 18, 2018, and after that date. I accept that Mr. Mitton followed up with Harpreet informally rather than setting formal meetings to continue discussing the Accommodation Plan because there appeared to be no issues with the plan. Harpreet submits that this did not happen, but his evidence was about a lack of formal meetings to evolve the plan. He was not satisfied with the Accommodation Plan or the process, and he testified that it should not have been incumbent on him to raise any issues, but I find that if he ran into issues that suggested the plan was not working, it was incumbent on him to raise this so it could be addressed. He did not do this, and, more importantly, I have found that the plan did adequately accommodate him.

[251]       It was not necessary for WSBC to hold formal meetings with the purpose of evolving the Accommodation Plan. Harpreet testified that if there had been meetings he would have given them valuable information, but did not say what that information would have been. He says employers could have known that it was “normal” for an OHO to go to a site wearing a turban and that they could utilize his expertise, but there was never any issue with him wearing his turban. I find that Harpreet was not satisfied with the Accommodation Plan or WSBC’s manner of checking in with him, but there was no failure to accommodate.

[252]       The remaining parts of the complaint involve allegations of retaliation and of subtle discrimination. Next, I explain how a complainant may prove that subtle discrimination occurred.

G.    How a complainant may establish subtle discrimination 

[253]       A complainant may make out their case for discrimination by establishing an inference that a protected characteristic 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 religion or race. Respondents may not even recognize prejudice in themselves: Kondolay 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. This does not mean that the inference of discrimination must provide the only rational explanation of the circumstances because the protected characteristic need only be one factor: Kondolay at para. 108.

[254]       I must determine whether any of the conduct Harpreet alleges was discrimination on the basis of his religion. I consider that an employee’s subjective perspective of adverse treatment or impact is not enough to establish discrimination. The Tribunal explained this in Singh v. A & M Enterprise Ltd., 2023 BCHRT 148 at para. 57:

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.

[255]       I also consider the broader social context to understand Harpreet’s 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 [Perry] at para. 67; Code, s. 3. This broader context includes the unfortunate reality that even those who are well-meaning and not overtly biased may engage in “everyday racism” based on stereotypes, leading to a finding of an inference that a personal characteristic like race, or religion in Harpreet’s case, is a factor in negative treatment when viewed as part of an entire picture of a set of facts: Francis v. BC Ministry of Justice (No. 3), 2019 BCHRT 136 at paras. 288-289.The context also 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. 

[256]       Harpreet’s belief that he experienced discrimination at WSBC, in the context of him being the only Sikh person working at the Regional Office who wears a turban, within the broader social context of discriminatory stereotypes persisting in Canada, is not enough to establish discrimination. I can only find an inference of discrimination based on evidence: Kondolay at paras. 109-110. As set out above, it is not necessary that WSBC’s conduct be consistent only with allegations of discrimination and not any other rational explanation, because Harpreet’s religion and need to wear his turban only needs to be one factor in any negative treatment: Kondolay at para. 108.

[257]       To decide whether each of Harpreet’s remaining allegations constitute discrimination or retaliation I first make any necessary findings of fact if the parties do not agree about what occurred. Then I consider the events in their full context, including the social context, to decide whether the evidence supports an inference of discrimination, and to decide whether Harpreet has established a sufficient connection between any impugned conduct and his discrimination complaint to establish retaliation.    

H.    Director Position Allegation

[258]       Harpreet applied for the position of Director, Risk Analysis Unit [Position], in March 2020. WSBC did not interview him for the Position. Harpreet says this was retaliation for filing his complaint and that his turban was a factor in the decision not to grant him an interview.

[259]       To decide the retaliation allegation, I must determine whether Harpreet has established a sufficient connection between not granting him an interview and the filing of his discrimination complaint. In particular, I must decide whether a reasonable complainant apprised of the facts at the time can reasonably have perceived WSBC to have declined to interview Harpreet in retaliation for filing his discrimination complaint: Gichuru at para. 58. This requires me to consider the evidence in context, including WSBC’s explanation for its decision not to interview Harpreet.

[260]       I must also consider whether the evidence supports an inference that Harpreet’s religion was a factor in the decision not to interview him to decide whether there was discrimination.

[261]       I find that the decision not to interview Harpreet for the position was not retaliation or discrimination. I considered Harpreet’s evidence about his experience applying for the position, and WSBC’s evidence in support of its explanation not to interview him. I find that there is no evidence to support an inference of retaliation or discrimination.

[262]       The Position is a non-unionized, high-level management position responsible for directing three managers, 16 staff, and 12 officers to lead the Risk Analysis Unit, including directing teams responsible for risk modeling, catastrophe analysis, and evaluation of mitigation solutions and projects. The posting for the Position says that WSBC is looking for someone who can motivate and lead experienced management teams, identify opportunities for improvement and effectively implement changes, create a supportive work environment, and “Inspire and lead with exceptional relationship building and conflict resolution skills, and an understanding of the diverse needs and interests of our stakeholders.” The required experience and educational background is listed as a university degree and “ten years of progressive leadership experience in the development of occupational health and safety risk-oriented projects and the management of risk analysis activities, including identification, analysis, and assessment of OHS risks.”

[263]       Maria de Brigard was the Senior Manager for Talent Acquisition at WSBC when the Position was posted. She conducted the hiring process for all director positions at WSBC, including the Position and two other director positions they recruited for at the same time. She reviewed applications and made recommendations to Al Johnson, the Vice-President of Preventative Services, about which candidates to interview. Mr. Johnson followed her recommendations.

[264]       Ms. de Brigard testified about the process and explained why she did not recommend to Mr. Johnson that he interview Harpreet for the Position. She explained that when hiring for a position that is not unionized, WSBC does not have to follow particular rules like it would for a unionized position, such as interviewing all qualified candidates. She says WSBC prefers to consider all internal candidates first and did so in this case. There were five internal candidates, including Harpreet, and she recommended three of them for interviews.

[265]       Ms. de Brigard testified that she did not recommend Harpreet for an interview because she was looking for ten years of specific strategic experience that she saw from his resume he did not have. The three candidates she recommended for interviews all had training in strategic management and experience working as senior managers or managers in the Risk Analysis Unit, had subject matter expertise related to the Position, and had reported to the director of the unit. The other candidate she did not recommend for an interview had worked as a senior manager in the Risk Analysis Unit since 2014, but Ms. de Brigard found that candidate’s previous experience was not relevant enough for the Position. Harpreet did not have any experience in the Risk Analysis Unit, or any supervisory or management experience at WSBC.

[266]       Mr. Johnson testified that Ms. de Brigard did the leg work of reviewing applications, but he spoke to her about all of the candidates and agreed that Harpreet was not qualified for the Position. He also testified that he is not aware of WSBC having hired any employees from unionized positions into a director position without them having supervisory or management experience in between.

[267]       Harpreet submits that he was qualified for the position. He says Ms. de Brigard was not a credible witness because when she emailed Harpreet to notify him that he would not be interviewed she told him that he was qualified for the position but it was very competitive, then said at the hearing that he was not only the least competitive candidate but did not even meet the basic qualifications.

[268]       I find Ms. de Brigard’s evidence to be credible. She explained that it was clear from Harpreet’s application materials that he was not qualified enough to warrant interviewing him. Her email to him advising him that he would not be interviewed was polite and her use of the word “qualified” did not suggest that he was qualified enough to warrant an interview but nevertheless would not have one. In a subsequent email to Harpreet responding to a question he asked about the process she told him that they take steps to come up with the “most qualified” candidates for any particular position. This is consistent with her evidence at the hearing.

[269]       Harpreet also submits that Ms. de Brigard was not a credible witness because she testified that she was not aware during the hiring process that Harpreet wears a turban even though he included a photo of himself wearing one on his resume.

[270]       Ms. de Brigard’s evidence about her awareness of Harpreet’s turban during the hiring process was credible. She testified that she spoke to Harpreet on the phone after the hiring process and he asked her whether his turban was a consideration in the decision that he would not be interviewed. She asked Harpreet how she would know he wore a turban, and he told her that there was a photo on his resume. She says she looked back at his resume and saw the photo, but she did not have it in mind when she was considering his application. She explained that she has extensive training in recruitment, including on diversity initiatives, and trains recruitment teams on how to avoid unconscious bias. This part of her work is important to her because she is a woman of colour and immigrant to Canada, and she understands the impacts that discrimination can have on people’s careers. She would not recommend that anyone include a photo with a job application because this may trigger unconscious bias in some cases, but she is confident that she is able to objectively focus on factors relevant to the process, like qualifications and experience.

[271]       I accept Ms. de Brigard’s evidence. I find that she put Harpreet’s photo with his turban out of her mind to the point where she did not recall that he wears one by the time she talked to him after the hiring process.  

[272]       Harpreet also submits that Ms. de Brigard’s evidence was not credible because she testified that she is committed to equity, diversity, and inclusion, but that she was not aware of the Tribunal’s decision denying WSBC’s application to dismiss his complaint at the time of the recruitment process.

[273]       Ms. de Brigard says she was not aware of the human rights complaint, and I accept her evidence. Mr. Johnson was aware of Harpreet’s human rights complaint at the time of the recruitment process. Mr. Johnson testified that he did not talk to Ms. de Brigard about Harpreet’s complaint and I accept his evidence. It would not have been an appropriate consideration in the recruitment process so there was no reason for him to tell her about it. It also would not have been appropriate for Ms. de Brigard to specifically research whether any applicants for the Position had filed human rights complaints. Anyone with a significant interest and comprehensive knowledge of equity and diversity issues cannot be expected to know about every Tribunal decision related to discrimination, or even about every complaint and issue related to discrimination at a large organization like WSBC.

[274]       WSBC’s explanation for declining to interview Harpreet for the Position is sound. Harpreet simply did not have the experience required for the Position. There is no evidence that his turban was a factor, and no evidence on which to find an inference that WSBC can reasonably be perceived to have declined to interview Harpreet as retaliation for his complaint.

[275]       Next, I address Harpreet’s additional allegations that he experienced other mistreatment after filing his complaint that he says was discrimination and retaliation.

I.       General Mistreatment Allegations

[276]       Harpreet alleges that after he filed his complaint the workplace was hostile for him. In his final reply submission he submits that WSBC has falsely portrayed him as a predatory, angry man of colour who was not competent at his job and will say anything to get his way.

[277]       I explained above that I considered Harpreet’s allegations in the context of all of the evidence, and the social context of the realities of subtle discrimination against immigrants to Canada who are noticeably different from white people born in Canada. I specifically considered that this reality may include a perception that someone who is different may be “playing the race card”, or, in Harpreet’s case, “playing the religion card”, when they are indeed being mistreated. I find there is no evidence on which to infer that anyone at WSBC engaged in stereotyping or subtle discrimination. There is no evidence to support Harpreet’s allegation that he experienced even subtle negative treatment because he wears his turban or because he filed his complaint. 

1.      Allegation that Ms. Berntson unfairly managed Harpreet

[278]       Ms. Berntson became Harpreet’s manager in July 2019. Around that time, she learned that Mr. Alcock was not supposed to supervise Harpreet because of his human rights complaint and the Inspection Allegation involving Mr. Alcock, so if Harpreet’s supervisor was absent and Mr. Alcock was not available, Ms. Berntson would serve as Harpreet’s supervisor. She was therefore aware of his complaint for the time period that she worked as his manager.

[279]       Harpreet submits that Ms. Berntson did not try to truly understand his accommodation needs, that she treated him harshly, “coming down on him” in ways that Mr. Mitton had not, and that she did not support him when he clearly needed support.

[280]       I find that Ms. Berntson’s management of Harpreet was not discrimination or retaliation.

[281]       Harpreet testified that Ms. Berntson criticized him for completing an insufficient number of investigation reports. He says she did not recognize that he had a heavy, time-consuming workload because OHO work is more advanced than other disciplines, and she did not consider that his work was “filtered” because he was unable to go out and “boost his numbers” because he could not wear a hard hat.

[282]       Harpreet submits that Ms. Berntson was effectively pushing him out of the organization when his mental health gave out and he was forced to go on medical leave due to mental health related disorders. At the hearing he also testified that he had respiratory health issues and could not go outside when air quality was poor, which impacted his ability to do his job.

[283]       Harpreet’s complaint is only of discrimination on the basis of his religion, and retaliation for filing his complaint. It is not a complaint of disability discrimination, so I do not consider whether he had a mental or physical disability that was a factor in how Ms. Berntson or anyone else at WSBC treated him. I do consider whether his religion and the fact that he wears a turban was a factor in how Ms. Berntson responded to him if he raised any issues with her about his health or stress, and whether a reasonable complainant apprised of the facts at the time can reasonably have perceived any of her conduct towards him to have been retaliation.

[284]       Ms. Berntson testified that she spoke to Harpreet about his work when it was necessary to address issues as his manager. She gave several examples of times she needed to do this. She testified that in one instance she assigned him a challenging chlorine initiative that required about eight inspections in the area, which he accepted, but he did not prioritize the inspections very well and she had to assign another OHO to complete them. In another instance Ms. Berntson says she assigned Harpreet an initiative that required a smaller number of inspections to assist the federal government with a project. She says Harpreet was interested in the initiative and she thought it would be a good opportunity for him, but he did not complete the inspections and a manager from another unit had to finish them. None of these inspections required use of a hard hat.  

[285]       Ms. Berntson testified that Harpreet generally did not complete the same number of inspection reports as other officers, and there were times when he did not even complete one report per week while he was not otherwise doing specific project work. She says this is not acceptable and she had to speak to him about this, and when she did, he did not raise concerns about lack of opportunities for work. She also says she monitored the work assigned to all officers to ensure equal assignment of complex work.

[286]       Ms. Berntson testified that she also had to speak to Harpreet about concerns she had with the quality of some of his reports. She explained that they use an Inspection Report Review Tool for periodic quality checks, and using this tool she found that some of Harpreet’s reports did not include the evidence necessary to explain cited violations, or were not consistent with law or policy, so she had to speak to him about this.

[287]       Ms. Berntson also testified that Harpreet sometimes attempted to delegate his work to other officers without speaking to her first, which is not what officers are supposed to do. She says reassignments are only supposed to be done through managers, so she had to speak to him about this. She says women officers also told her that Harpreet was rude, aggressive, and dismissive towards them and she had to speak to him about this as well. She says that after she did, Harpreet spoke to one woman officer who had raised a concern, and that officer then asked not to work one-on-one with Harpreet because he had intimidated her. Ms. Berntson says she spoke to someone in the HR department about this issue and they advised her to speak to Harpreet generally about treating others respectfully, which she did. She also respected the other officer’s request and did not assign her to work one-on-one with Harpreet.

[288]       In another instance, Ms. Berntson says a supervisor gave Harpreet feedback about an inspection report and Harpreet felt it was pedantic and responded aggressively. She says she had to speak to Harpreet about this, and he told her that his reaction was justified because the feedback he received was unnecessary.

[289]       Ms. Berntson testified that when she spoke to Harpreet about his work it was to make him aware of concerns and determine how WSBC could support him to be successful in writing inspection reports. She says they assigned a mentor to work with him, and his performance improved for a while, but then it dropped off again.

[290]       Harpreet submits that Ms. Berntson’s evidence is not credible, and I should not accept it. He says Ms. Berntson openly displayed hostility towards him in her evidence and was biased against him, and that she believes he is disrespectful to women with no basis for that belief. Harpreet says Ms. Berntson seems to have set her mind against him early on and holds an unfair view of him, which contradicts his evidence and his wife’s evidence about his obvious pride in his daughter’s accomplishments.

[291]       I find Ms. Berntson’s evidence to be credible and I accept it.

[292]       I find that Ms. Berntson did not set her mind against Harpreet early on in their work together. She testified about an incident during nPOD training when Harpreet wanted to sit beside another woman who asked him to give her some personal space, and says Harpreet laughed at the woman and made inappropriate comments about her experience. I understand this to be the basis for his submission that she was set against him early on. Ms. Berntson only testified about her recollection of this incident in cross examination when Harpreet’s counsel put to her that she had never found Harpreet to be aggressive before she managed him, and she said that was not true for her. I find that she truthfully answered the question put to her in cross examination and no evidence suggests that this experience impacted her ability to objectively manage Harpreet once she became a manager.

[293]       Ms. Berntson did not display hostility toward Harpreet in her evidence. Rather, I find that she was uncomfortable at times, which is understandable in her position. WSBC only introduced her evidence about how she managed Harpreet because it had to respond to his allegation that she did not manage him fairly, which was not very specific. Ms. Berntson was in the difficult position of needing to explain and justify how she spoke to Harpreet about his work years after the fact at this proceeding. I find that she was not happy to be in this position, but she was not hostile, and she gave sincere evidence to the best of her recollection.

[294]       Ms. Berntson’s evidence of how she managed Harpreet is also consistent with documentary evidence that I accept. This includes a learning and development plan with notes of a review she did with Harpreet dated February 12, 2021, which says that he had challenges balancing planned work with unplanned work and needed to increase his inspection work, but had already begun to address this in late 2020 and early 2021. Ms. Berntson also spoke to an email exchange she had in March 2021 in which a supervisor raised an issue about how Harpreet was managing a list of calls, and Ms. Berntson wrote to HR for advice. In another email exchange Ms. Berntson wrote to HR about an instance of Harpreet delegating his work to another officer in April 2021. She also testified about an email exchange with Harpreet in June 2021 in which she summarized a discussion with him about his progress. Ms. Berntson copied HR on this email and directed Harpreet to send each of his inspection reports to his supervisor for review two days before the deadline to submit them and gave him directions for completing reports properly. She also acknowledged that Harpreet had completed 49 inspection reports that year, which was a vast improvement over completing 33 initiating inspection reports in 2020, and that she expected his improvement to continue to meet the minimum requirement of 120 inspection reports per year. This is consistent with her evidence that she managed Harpreet as necessary and did so fairly.

[295]       Ms. Berntson testified about instances when Harpreet told her that he had respiratory issues and could not work outside when the air quality was poor. Ms. Berntson asked Harpreet to provide medical information to explain what he was and was not able to do, and to take time off if he was not able to work because of his health. This was an appropriate response.

[296]       I have found that Harpreet’s Accommodation Plan did not impact the work he was assigned or lead to fewer opportunities for him. In cross examination Harpreet testified that he did not know whether the number of inspection reports he did had anything to do with his Accommodation Plan. He suspected that it did, and felt it was not possible that it had no impact on the type of work he was assigned, but there is no evidence that there was any impact. Ms. Berntson did not need to consider his Accommodation Plan in her management of Harpreet’s work in these circumstances.

[297]       I also find that Harpreet’s religion and the fact that he wears a turban was not a factor in how Ms. Berntson managed him. There is no evidence on which to base an inference that his turban was a factor in any steps Ms. Berntson took to manage him as part of her job.

[298]       Finally, I find there is no basis to find that a reasonable complainant apprised of the facts at the time would reasonably perceive Ms. Berntson’s management of Harpreet as retaliation. She was aware of his complaint and testified that Harpreet told her a couple of times at monthly check-ins that he was under stress due to this proceeding. However, I find that the steps she took to manage him were all necessary steps related to his work quality, productivity, and ability to work with others.

[299]       When an employee files a human rights complaint against their employer this does not preclude the employer from continuing to manage the employee in all respects: Pathak v. Vancouver (City), 2012 BCHRT 195 at para. 260. In fact, it is essential that the employer is able to do so fairly when there is an ongoing relationship after a complaint is filed. In this case Harpreet was stressed about his complaint and the process, and the situation was difficult for him, but WSBC still had to manage his work. Ms. Berntson was not the subject of any allegations in his complaint, and it was appropriate for her to manage him. It was also appropriate to avoid having Mr. Alcock supervise Harpreet while he was the subject of an allegation in the complaint. WSBC handled a difficult situation as well as possible by continuing to manage Harpreet’s work in a supportive way, addressing issues that arose without any discipline or harsh treatment. 

2.      Not being assigned a specialized respirator

[300]       Harpreet alleges that WSBC did not provide him with a specialized respirator, which he needed because he cannot wear a regular respirator because he has a beard, which is related to his Sikh faith. In a letter decision dated April 27, 2023, I found that this allegation is not part of Harpreet’s complaint. I address the issue here because Harpreet says that failing to listen to his stated needs and provide him with a respirator is another example of how WSBC generally mistreated him because he filed a complaint and this is relevant context that I must consider.

[301]       I find that WSBC did not fail to provide Harpreet with a specialized respirator. Rather, Harpreet did not come across any situations in which he needed one.

[302]       Harpreet testified that WSBC would not provide him with a specialized respirator because they are expensive and they did not want to give him something that would be seen as a privilege. He says he talked to Mr. Mitton, Mr. Alcock, and possibly others about needing a respirator and sometimes he was told it would be expensive and was not possible, and sometimes he was told that they would come back to the issue. He says he asked Mr. Alcock for a respirator more than once and Mr. Alcock said he was referring to a “fancy” and expensive piece of equipment.

[303]       Ms. Berntson explained the type of respirator OHOs generally use in their work and times when one is needed. She said that all OHOs have access to a type of respirator called a “bite block”, which does not require being cleanshaven to use. She explained that a bite block is used to safely escape rooms that have chlorine or ammonia. She testified that OHOs generally do not need to use a fitted respirator, which would require being cleanshaven, for work because they are not supposed to be in areas where there is risk of exposure to materials like asbestos.

[304]       Mr. Mitton testified that if a respirator is ever needed to conduct an analysis for exposure issues, this would be planned, and the officer attending would be provided with the necessary respirator. He says Harpreet never told him that he needed a respirator for any of his work. Ms. Berntson and Mr. Alcock also say Harpreet never asked them for a respirator.

[305]       I accept the WSBC witnesses’ evidence. Mr. Alcock was never Harpreet’s assigned supervisor and there is no reason Harpreet would have asked him for specialized equipment for an accommodation. In cross examination Harpreet also testified that he asked Mr. Alcock for a respirator after filing his complaint, but there was an arrangement in place to prevent Mr. Alcock from supervising Harpreet after he filed his complaint. I do not accept Harpreet’s evidence that he spoke to Mr. Alcock about this issue after filing his complaint.

[306]       Harpreet did not testify about any specific instances of asking Mr. Mitton, Ms. Berntson, or anyone else, for a respirator. He also did not testify about any particular work that he would have needed a respirator to perform. He says he could not have collected data from the kitchen cabinet making industry because cedar dust is known to cause asthma but says he did not ask for a respirator for this because he did not want to cause any trouble. This is not evidence that anyone at WSBC refused to provide him with a respirator; it is evidence consistent with the WSBC witnesses’ evidence that he never asked for one.

[307]       Harpreet submits that he had poor respiratory health and that he consistently brought this to Mr. Mitton’s and Ms. Berntson’s attention, but no one provided him with respiratory protection. The evidence does not support this submission. Harpreet told Ms. Berntson that he had asthma and could not go outside when there was poor air quality due to nearby fires. There is no evidence that a specialized respirator would have helped him in this situation. He did not suggest to anyone that a specialised respirator would have helped him do his job, and there is no evidence that a respirator is appropriate for the circumstances he describes.

[308]       Finally, Harpreet submits that his lack of a specialized respirator was relevant to his issues working with Dr. Y, and WSBC failing to assign him to work on the tragic crane incident. There is no evidence to support this submission. The issue with Dr. Y was not related to Harpreet failing to access certain areas of the worksite for PPE reasons, and WSBC did not assign him to the crane investigation because he was not needed there.

3.      Lack of relief supervisor opportunities  

[309]       Harpreet alleges that WSBC mistreated him by failing to offer him opportunities to act as a relief supervisor that were available to others.

[310]       I find that there was no discrimination or retaliation related to relief supervisor opportunities. WSBC did not consider Harpreet for these opportunities because he did not apply for them.

[311]       In cross examination, Harpreet testified that office managers gave out temporary supervisory responsibilities for periods of weeks or months whenever they felt like it and that he was never given that opportunity. WSBC’s counsel put to him that temporary relief supervisor positions are posted positions that officers must apply for, and Harpreet said that maybe some people were invited to apply, and he was not. He acknowledged that he was not aware of any instances in which particular employees were invited to apply. He testified that he would see other employees go for coffee with Mr. Mitton and he assumed that Mr. Mitton was encouraging them, but he did not have knowledge of this. He also acknowledged that he never spoke to his managers to say he was interested in becoming a supervisor to ask for help or advice on how to do so.

[312]       Mr. Mitton testified that the relief supervisor positions are open for all officers to apply to. An email from Mr. Mitton to all prevention officers at the Regional Office and two other regional officers in the interior, dated July 17, 2020, is consistent with this. In this email Mr. Mitton says there is a backup supervisor position posted for the Regional Office, and anyone interested should review the posting and follow the directions.

[313]       Harpreet had the same opportunity as other officers to apply on relief supervisor positions, and he did not do so. There is no evidence to support his allegations of discrimination or retaliation related to these opportunities.

4.      Allegation that Mr. Marcoux yelled at Harpreet for speaking Punjabi at work

[314]       In his direct examination Harpreet alleged that on one occasion in 2021 or 2022 he was speaking Punjabi to a client on the phone, and after about five minutes, another officer loudly shouted to him, “this is Canada, you should be speaking English!”. Harpreet says he gestured that he was on the phone, and the other officer kept talking. Harpreet says he told Mr. Mitton about this, and Mr. Mitton probably said that he would look into it, but there was no follow up. Harpreet says he did not tell anyone from the Union about the incident because his supervisor and manager were more accessible to him. He testified that he believes that everyone at the Regional Office was aware of his discrimination complaint.  

[315]       Harpreet did not identify the other officer in his direct examination. He identified the other officer as Mr. Marcoux through communications between counsel before subsequent hearing dates. In his closing argument he submits that he testified about this alleged incident to help explain growing tensions and hostilities he experienced at work after filing his complaint.

[316]       WSBC denies that this incident occurred. Mr. Marcoux testified that he did not and would not say such a thing to Harpreet or to any other colleague. Mr. Mitton testified that Harpreet did not tell him that this incident occurred, and that if Harpreet had reported an incident like this, WSBC would have investigated it.

[317]       I find that this incident did not happen.

[318]       Mr. Marcoux’s evidence was credible. By the time he testified at the hearing he no longer worked at WSBC. It was nevertheless important to him to testify at the hearing to have an opportunity to deny Harpreet’s allegation against him. Mr. Marcoux testified that he had no problem with Harpreet or another Punjabi colleague speaking Punjabi at work, and that he did not know about Harpreet’s complaint until WSBC contacted him after Harpreet raised this allegation in his direct evidence.

[319]       Mr. Marcoux testified that he was very offended at the allegation and, at first, he was angry with Harpreet for lying about him. By the time he testified at the hearing Mr. Marcoux says he was more disappointed than angry because he respected Harpreet and thought they had been on friendly terms, and he was at a loss to understand why Harpreet would make such an allegation.

[320]       In cross examination Harpreet’s counsel suggested to Mr. Marcoux that he was prone to emotional outbursts at work. Mr. Marcoux explained that he once experienced an incident of an armed person threatening him in the course of his work, and one time, related to this incident, he became emotional at a work meeting. He denied ever having a second emotional outburst related to anyone speaking Punjabi at work.

[321]       Mr. Marcoux’s evidence was sincere. He has close personal relationships with Punjabi people in his life, including one who used to work at WSBC and spoke Punjabi at work. This does not preclude a finding that he would mistreat Harpreet in a particular instance, but I accept that he had no issue with anyone speaking Punjabi at work. Having one emotional outburst at a work meeting related to a traumatic incident does not make it more likely that he would have an unusual outburst at someone speaking Punjabi when this normally would not bother him.

[322]       I prefer Mr. Marcoux’s evidence over Harpreet’s. It is unlikely that Harpreet would ignore serious mistreatment at work after he filed his complaint. After he applied for the Position and was not interviewed, he raised his concerns about this directly with Ms. de Brigard, and he amended his complaint to add the allegation about the hiring process. Yet, Mr. Mitton and Ms. Berntson both testified that Harpreet never told them about an incident of Mr. Marcoux telling him not to speak Punjabi at work. I accept their evidence. I accept that if Harpreet had reported an incident like this to them that they would have addressed it. Mr. Marcoux testified that no one ever spoke to him about an issue Harpreet raised about him at work.

[323]       Mr. Mitton and Ms. Berntson testified that the issue of Harpreet speaking Punjabi at work did come up when Harpreet talked to them about speaking Punjabi to clients and asked for compensation for translation. Ms. Berntson explained that the collective agreement between WSBC and the Union sets out a need for preapproval for translation premiums, and WSBC agreed to pay Harpreet the premium in one instance but told him that he would need to be preapproved according to the collective agreement for future translation pay. Ms. Berntson’s understanding was that WSBC was not adding to its pre-approved translator list at the time because it was full.

[324]       Harpreet’s evidence about the translation compensation issue in cross examination is consistent with this. I find that this is the only issue related to speaking Punjabi at work that arose.

5.      Failing to assign Harpreet to work in his preferred industries

[325]       Harpreet testified that, before he was hired, WSBC asked him if there was any speciality he particularly wanted to focus on and he said that he wanted to help his community. He says someone told him during the hiring process that agriculture is a big area. Harpreet previously did research about pesticide exposure in workers who wear turbans and said he could help in that area. He says he was given the option to work in the agriculture industry, but this was taken from him for no reason.

[326]       Ms. Berntson testified that Harpreet once asked if he could be assigned to particularly work in the agriculture area and also asked the same about health care on a different occasion. She says there is not enough work in those areas for one OHO to be particularly assigned to them and she needed him to work in different areas.

[327]       I accept Ms. Berntson’s evidence. There is no evidence to the contrary. In cross examination Harpreet testified that his conversation with HR was very casual, and he had suggested there are areas that he would not have a problem working in, like agriculture. There is no evidence that there was enough work in agriculture for Harpreet to be assigned that area for all or most of his work, and no evidence that anyone removed him from a preferred work area.  

6.      Social isolation

[328]       Harpreet alleges that others in the workplace isolated him and ignored him after he filed his complaint. He says others went for coffee without him, including Mr. Mitton. Harpreet took a medical leave in 2022. He says his medical condition arose because of how he was treated in the workplace after filing his complaint, including this social isolation.

[329]       I find there was no discriminatory or retaliatory social isolation. The evidence does not support Harpreet’s allegations.

[330]       I have explained that Mr. Alcock was no longer required to supervise Harpreet after he filed his complaint. The Union arranged this with WSBC at Mr. Alcock’s request. This was an appropriate response to the complaint that allowed WSBC to continue managing and supervising Harpreet while minimizing the impacts of the complaint on the workplace as much as possible.

[331]       Mr. Alcock testified that he did not want to be alone with Harpreet once he knew about the allegation, such as on coffee outings from the office. This is understandable and appropriate considering that Mr. Alcock was the subject of a specific allegation. Mr. Alcock testified that he was cautious around Harpreet because he was concerned that Harpreet would view any interactions with him in a negative light. He says he was troubled and losing sleep about the allegation against him but wanted to continue to be professional in working with Harpreet and not have his professionalism cast in doubt. He says that after he gave his statement about the Inspection Incident in October 2018, he continued to suggest that other OSOs go to Harpreet when they needed to consult with an OHO.

[332]       I accept Mr. Alcock’s evidence. Everyone at WSBC, including Mr. Alcock, was obligated to continue to be professional with Harpreet after he filed his complaint, and I accept that Mr. Alcock did so. There is no evidence to the contrary. That does not mean it was easy to continue to work with Harpreet in light of the allegation. Most people would be troubled by a serious allegation against them in a human rights complaint, and it is human and reasonable to acknowledge the impact of this on their relationship with a complainant.

[333]       Harpreet did not appreciate that the Inspection Incident allegation would have an impact on Mr. Alcock and would not acknowledge this in cross examination. He expected Mr. Alcock to continue to go out for coffee with him. I find that Harpreet’s expectations of Mr. Alcock were unreasonable in the circumstances. He expected Mr. Alcock to continue to socialize with him as if nothing had happened, which would not be a human response. Mr. Alcock continued to treat Harpreet professionally and did not mistreat him in any way. A change in how they socialized at work after the complaint is not evidence of retaliation or discrimination.

[334]       Harpreet says he once had difficulties while out in the field and called Mr. Alcock, who responded by texting him and asking him to contact his own supervisor. Mr. Alcock does not recall this, but if this did occur, Mr. Alcock’s response to Harpreet was reasonable in the context of the specific allegation against him and the arrangement in place to avoid him supervising Harpreet.  

[335]       Harpreet also testified that he would ask people to go for coffee, they would say no, and five minutes later he would see them go for coffee without him. In cross examination he said he was referring to Mr. Alcock and Mr. Mitton. Later in cross examination he added that this only happened once, but otherwise people would go for coffee together without inviting him to join them. He also testified that he sent his managers many text messages that they did not reply to, but did not speak to details of any messages and did not introduce any into evidence. Harpreet explained in cross examination that this allegation was based on a mood, and that he could feel on a day-to-day basis whether he was invited or not, and whether anyone was being distant.

[336]       Mr. Alcock testified that sometimes managers and supervisors go for lunch or coffee without others to discuss operational concerns that other officers are not aware of. Generally, he does not coordinate coffee outings, and he is not aware of Harpreet being excluded from any particular outings. Mr. Mitton testified that he did not recall Harpreet sending him text messages that he did not reply to, and that he did not exclude Harpreet in the workplace, but naturally would have had fewer interactions with Harpreet once Ms. Berntson became Harpreet’s manager. Mr. Mitton did not recall any instances of Harpreet being excluded from outings, and says that if he went out one-on-one with any particular officer, it was likely because he wanted to talk to them about a particular issue and going for coffee was an easy way to informally do that. 

[337]       I cannot find that Harpreet’s colleagues socially isolated him based on his subjective feeling that this happened when there is no evidence to support a finding that this is what was going on. Harpreet may have felt isolated and distant from his colleagues after filing his complaint, but this could be attributed to him having filed the complaint and the stress of having done so.

[338]       I find there was no subtle discrimination or impugned conduct that could be retaliation.

V      CONCLUSION

[339]       Harpreet has not established that WSBC discriminated or retaliated against him. The complaint is dismissed under s. 37(1) of the Code.

Jessica Derynck

 Tribunal Member