Ayroso v. D.F. Display Fixtures Ltd., 2025 BCHRT 221
Date Issued: September 9, 2025
File: CS-005010
Indexed as: Ayroso v. D.F. Display Fixtures Ltd., 2025 BCHRT 221
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:
Vincent Ayroso
COMPLAINANT
AND:
D.F. Display Fixtures Ltd.
RESPONDENT
REASONS FOR DECISION
APPLICATION TO DISMISS A COMPLAINT
Sections 27(1)(c) and (g)
Tribunal Member: Kathleen Smith
For the Complainant: Vincent Ayroso
Counsel for the Respondent: Michael A. Watt
I INTRODUCTION
[1] In this decision I explain why I dismiss Vincent Ayroso’s complaint without a hearing, under ss. 27(1)(c) and (g) of the Human Rights Code.
[2] Vincent Ayroso identifies as a Canadian-born Catholic Filipino. He worked for the respondent D.F. Display Fixtures Ltd. as a technician. Mr. Ayroso alleges that during his employment he was subjected to discrimination based on race, colour, and religion. The specific allegations include that his manager, JB, used a racial slur and treated him differently compared to the other predominantly white technicians.
[3] Display Fixtures denies discriminating. It asserts that there is no connection between the events described in the complaint and Mr. Ayroso’s protected characteristics, and that Mr. Ayroso has taken matters out of context. Display Fixtures asserts that Mr. Ayroso did not like following the directions of his manager, and that he is attempting to use the human rights complaint process to pursue redress for those concerns.
[4] Display Fixtures applies to dismiss the complaint on the following bases: (1) several of the allegations have no reasonable prospect of success because they have already been considered and decided by the Review Division of WorkSafeBC; (2) there is no evidence to support the remaining allegations and therefore they have no reasonable prospect of success at a hearing; and (3) one of the allegations is late filed by four years and it would not be in the public interest to allow it to proceed: Code, ss. 27(1)(c) and (g).
[5] Mr. Ayroso opposes the application.
[6] For the following reasons, I am persuaded that it would not be in the public interest to allow the late allegation to proceed and the remaining allegations have no reasonable prospect of success. To make this decision, I have considered all the information filed by the parties. In these reasons, I only refer to what is necessary to explain my decision.
II BACKGROUND
[7] I provide this background information to put this decision in context. I make no findings of fact.
[8] Display Fixtures operates a business that employs certified technicians to perform refrigeration, heating, ventilation, and air conditioning at stores and distribution centers operated by Loblaws Inc.
[9] Display Fixtures has employed Mr. Ayroso as a technician since 2003. He is a union member, and the terms and conditions of his employment are governed by a collective agreement between Display Fixtures and the Union.
[10] JB was the manager of Display Fixtures’ technicians, including Mr. Ayroso. He oversaw the work they performed. JB retired on October 13, 2021, and a new manager took over his position.
[11] Mr. Ayroso alleges that JB bullied, harassed, and discriminated against him during his employment.
[12] Mr. Ayroso’s first allegation of discrimination dates back to September 2016. He alleges that JB told him he would be “crucified” if alarms ever happened again at the store where he was working. Mr. Ayroso says JB knew at the time he is Catholic. Mr. Ayroso asserts that the threat of crucifixion is a horrible thing to say to someone religious, and he considered it a threat on his life.
[13] All the other alleged incidents occurred in 2021. I summarize them next.
[14] March 24, 2021: Mr. Ayroso alleges that JB told him in an email that he could be digging trenches for a sewer line. Mr. Ayroso alleges that this statement is a racial stereotype based on his appearance because he has been told that he looks Mexican.
[15] July 26, 2021: Mr. Ayroso alleges that JB intentionally used a racial slur directed at Filipinos (“flip”) in an email to Mr. Ayroso.
[16] October 13, 2021: Mr. Ayroso alleges that JB told him that he would have to drop off and pick up his van everyday in Abbotsford if he did not check in the way JB wanted him too, by email and not text. Mr. Ayroso lives in Burnaby. He alleges that only he and another minority technician were required to check in using email instead of text.
[17] Display Fixtures asserts that Mr. Ayroso raised some of the same allegations in other forums and the findings in those other forums support its argument that the complaint has no reasonable prospect of success. I summarize them below.
[18] Display Fixtures says Mr. Ayroso filed an internal complaint under the company’s Harassment and Workplace Violence Policy on October 26, 2021. Display Fixtures says that in the internal complaint Mr. Ayroso claimed that the new manager was harassing and discriminating against him at the direction of JB.
[19] Display Fixtures says that a Senior Human Resources representative [HR] reached out to Mr. Ayroso and asked him to provide more details to better understand his complaint. It says that the only information Mr. Ayroso provided was that JB had referred to him as a “flip,” a racial slur against persons of Filipino descent, and he was required to check in by email as opposed to by text like the other technicians. Mr. Ayroso provided two emails as purported evidence of being called a “flip” by JB.
[20] Display Fixtures says that HR investigated the allegations and found no evidence to support the claims of discriminatory treatment. HR concluded that JB’s use of the word “flip” and “flipping” was in a manner commonly used to denote frustration without swearing, and there was no reasonable basis for concluding it was used as a racial slur against Mr. Ayroso. HR also concluded that requiring Mr. Ayroso to check in by email was reasonable given concerns JB had about Mr. Ayroso working at the same location but being vague about what duties he was performing while at those locations.
[21] Display Fixtures also says that Mr. Ayroso engaged the Union to challenge the need for daily check-ins by email. According to Display Fixtures, the Union agreed the requirement for email check-ins was reasonable given JB’s concerns about Mr. Ayroso attending the same facilities and not being able to provide any details of what work he was performing to satisfy Display Fixtures that his presence there was warranted. Display Fixtures relies on an email chain where the Union forwarded its correspondence with Mr. Ayroso to Display Fixtures new manager in November 2021. I reproduce the contents of the email below:
Hi Vince,
The union will not take on your grievance regarding this matter. The reasons so are simple: You are unable to demonstrate that you are being discriminated based on and not limited to race, religion, age, sex, creed, color, nation origin, membership or non membership in the Union.
Article 3 in the Collective Agreement for Display Fixtures outlines management rights. Management has the right to request you check in with them in any manner that they wish to. Further, I have had an in-person meeting with your direct manager, [manager name redacted] to explain the reasons as to why he has asked select employees, including yourself to check-in to work in an alternative manner. His answer has satisfied the union’s concerns.
What is concerning me, is your reaction and belligerence towards following instructions from your employer. Your actions will most likely lead to a just-for-cause termination with your employer and will have no recourse.
[22] Display Fixtures says that in July 2023, Mr. Ayroso filed a claim with WorkSafeBC [WCB] in which he claimed to have developed a mental disorder based on some of the same allegations. WCB denied the claim on September 19, 2023, and when Mr. Ayroso sought review, the Review Division upheld WCB’s decision.
[23] Display Fixtures provided a copy of the July 25, 2024, Review Division decision and says that it contains relevant findings relating to three of the complaint allegations, namely: the use of the word “crucified”, the use of the word “flip,” and the request that Mr. Ayroso check in via email rather than text.
[24] Regarding the crucified comment, the Review Division stated the following at page 7 of the decision:
I acknowledge that the worker felt threatened when JB told him he would be crucified. I am aware that the worker took this statement literally and not figuratively. I also considered the undated statements from JB that the worker was a “useless piece of skin” and that all the workers are in kindergarten. I recognize that JB did not use the best language in order to convey his meaning. However, I find that these statements were not excessive in intensity or duration of what would be expected in the normal pressures or tensions of his employment. Objectively, I conclude that these events represent interpersonal conflict between the worker and JB.
[25] Regarding the use of the work “flip,” the Review Division stated the following at page 8 of the decision:
Next, I considered JB’s use of the word flip. The worker submits that this is a racial slur, directed at him. The worker contends that this affected him deeply. I recognize that the worker finds the word flip offensive as it can be used an acronym for a racist phrase against his ethnicity. However, I note that JB’s use of this word was in an email to a number of individuals. Further, in the context of the email, in my view, it appears that JB was using the word flip as a substitute for a swear word.
[26] Regarding the requirement that Mr. Ayroso check in by email instead of text, the Review Division determined at page 7 of the decision that this was a “decision of the employer,” and was “not communicated in an abusive manner or intended to humiliate the worker.”
III DECISION
[27] The onus is on Display Fixtures to establish the basis for dismissal.
A. Section 27(1)(g)- timeliness of the alleged crucified comment
[28] Display Fixtures seeks to dismiss this allegation on the basis that it is significantly late filed, not in the public interest, and there is a presumption of real prejudice based on the lengthy of the delay.
[29] A complaint is filed in time if the last allegation of discrimination happened within one year, and older allegations are part of a “continuing contravention”: Code, s. 22(2); School District v. Parent obo the Child, 2018 BCCA 136 at para. 68. A continuing contravention is “a succession or repetition of separate acts of discrimination of the same character” that could be considered separate contraventions of the Code, and “not merely one act of discrimination which may have continuing effects or consequences”: Chen v. Surrey (City), 2015 BCCA 57at para. 23; School District at para. 50. The assessment of whether discrete allegations are a continuing contravention is a “fact specific one which will depend very much on the individual circumstances of each case”: Dickson v. Vancouver Island Human Rights Coalition, 2005 BCHRT 209 at para. 17.
[30] For the following reasons, I am satisfied that the alleged crucified comment is late-filed and does not form a continuing contravention with the timely allegations.
[31] Mr. Ayroso filed his complaint on September 14, 2021. He alleges that JB made the single crucified comment five years earlier in September 2016. This means that the alleged comment is filed four years late unless it is part of an alleged continuing contravention.
[32] Mr. Ayroso does not allege any further acts of religion-based discrimination. The other timely allegations are all race related. I agree with Display Fixtures that the alleged threat of crucifixion is of a different character than the other allegations.
[33] Mr. Ayroso acknowledges that this allegation is late filed. However, he does not address the time gap or the issue of continuing contravention in his response to the application. The only information on this issue can be found in the complaint where Mr. Ayroso says that he brought this allegation forward late because he did not want to risk losing his job and ability to make a living.
[34] I agree with Display Fixtures that the time gap between the alleged crucified comment and the first timely allegations is significant, almost four and a half years.
[35] Where I am persuaded that the alleged crucified comment is of a different character and the time gap is significant at almost five years, I am persuaded that it does not form a continuing contravention.
[36] Next, I consider whether to exercise my discretion under s. 22(3) of the Code to allow the late allegation to proceed. I must consider two things: public interest and substantial prejudice. The burden is on Mr. Ayroso to persuade the Tribunal to allow the late filed part of the complaint.
[37] The Tribunal assesses the public interest in a late-filed complaint in light of the purposes of the Code. These include identifying and eliminating persistent patterns of inequality and providing a remedy for persons who are discriminated against: s. 3. It may consider factors like the length of the delay, the reasons for the delay, the complainant’s interest in accessing the Tribunal, the respondent’s interest in being able to continue its activities without worrying about stale complaints, whether the complainant got legal advice, and the public interest in the complaint itself: British Columbia (Ministry of Public Safety and Solicitor General) v. Mzite, 2014 BCCA 220 [Mzite] at para. 53 and 63; Hoang v. Warnaco and Johns, 2007 BCHRT 24; Complainant v. The Board of Education of School District No. 61 (Greater Victoria), 2022 BCHRT 44 at para. 18. These are important factors, but they are not necessarily determinative and not every factor will be relevant in every case: Goddard v. Dixon, 2012 BCSC 161 at para. 152; Mzite at para. 55. The inquiry is always fact and context specific.
[38] Mr. Ayroso does not make any arguments in his response to the application about why it is in the public’s interest to allow the alleged crucified comment to proceed despite it being four years out of time. Instead, he focuses on the impact of the comment on him as a Catholic and religious person. I observe, however, that in the complaint, Mr. Ayroso states that people should know that they do not have to be discriminated against based on your nationality and religion.
[39] In circumstances where the Tribunal regularly publishes decisions about the protections of the Code, including the prohibition of discrimination in employment based on protected characteristic like race and religion, Mr. Ayroso has not persuaded me that the educational value of his complaint is enough. Put differently, he has not met his burden to show it would be in the public interest to allow the late part of his complaint to proceed.
[40] I dismiss this allegation under s. 27(1)(g).
[41] While it was not necessary to consider prejudice, I also observe that significant prejudice can flow where the delay in filing is significant. Here, Display Fixtures asserts real prejudice based on the alleged perpetrator of the discrimination having retired, and Mr. Ayroso not raising the alleged crucified comment previously during the HR investigation or at WorkSafeBC.
[42] Moreover, and in the alternative, it appears to me that the commonsense context is that JB wanted Mr. Ayroso to know that there would be serious consequences if the alarms went off again. While use of the word crucified in the context of the email, appears to be a poor choice of words, I am satisfied that Mr. Ayroso has no reasonable prospect of establishing that it rises to the level of religious discrimination protected under the Code.
[43] Lastly, although it was not necessary, I also would have found that Mr. Ayroso was estopped from relitigating the factual finding in the Review Division decision about the alleged crucified comment, i.e., that Mr. Ayroso took it literally and not figuratively, and that it represented an interpersonal conflict between them.
[44] Next, I turn to the arguments under s. 27(1)(c).
B. Section 27(1)(c)- reasonable prospect of success
[45] Display Fixtures seeks to dismiss the entire complaint on the basis that it has no reasonable prospect of success.
[46] Section 27(1)(c) is part of the Tribunal’s gate-keeping function. It allows the Tribunal to remove complaints which do not warrant the time and expense of a hearing.
[47] The Tribunal does not make findings of fact under s. 27(1)(c). Instead, the Tribunal looks at the evidence to decide whether “there is no reasonable prospect that findings of fact that would support the complaint could be made on a balance of probabilities after a full hearing of the evidence”: Berezoutskaia v. British Columbia (Human Rights Tribunal), 2006 BCCA 95 at para. 22, leave to appeal ref’d [2006] SCCA No. 171. The Tribunal must base its decision on the materials filed by the parties, and not on speculation about what evidence may be filed at the hearing: University of British Columbia v. Chan,2013 BCSC 942 at para. 77.
[48] A dismissal application is not the same as a hearing: Lord v. Fraser Health Authority,2021 BCSC 2176 at para. 20; SEPQA v. Canadian Human Rights Commission,[1989] 2 SCR 879 at 899. The threshold to advance a complaint to a hearing is low. In a dismissal application, a complainant does not have to prove their complaint or show the Tribunal all the evidence they may introduce at a hearing. They only have to show that the evidence takes their complaint out of the realm of conjecture: Workers’ Compensation Appeal Tribunal v. Hill, 2011 BCCA 49 [Hill] at para. 27.
[49] To prove his complaint at a hearing, Mr. Ayroso would have to establish that he has a characteristic protected by the Code, he was adversely impacted in his employment, and his protected characteristic was a factor in the adverse impact: Moore v. British Columbia (Education), 2012 SCC 61 at para. 33. If he did that, the burden would shift to Display Fixtures to justify the impact. If the impact is justified, there is no discrimination.
[50] Display Fixtures does not dispute that Mr. Ayroso has protected characteristics. However, it argues that there is no evidence from which the Tribunal could infer a connection between the impugned events and Mr. Ayroso’s race and/or religion.
[51] In support of its position, Display Fixtures relies on evidence before the Tribunal about the alleged events, as well the findings of the WorkSafeBC Review Division.
[52] I begin by noting that Mr. Ayroso’s response submission is not, for the most part, responsive to the issues raised in the dismissal application. Instead, he focuses much of his response on an allegation that Display Fixtures is responsible for and/or “covered up” a work-related death.
[53] In addition, Mr. Ayroso advances several other allegations for the first time in his response submission, including a failure to accommodate him after he was diagnosed with post traumatic stress disorder and anxiety.
[54] Mr. Ayroso did not apply to amend his complaint as required by Rule 24(4) of the Tribunal’s Rules of Practice and Procedure [Rules]. The Tribunal will usually disregard new allegations raised for the first time in response to an application to dismiss: Loewen v. BC Emergency Health Services and others, 2015 BCHRT 190 at paras. 21 and 22. This is because it can raise issues of fairness and efficiency. Respondents are entitled to know the allegations they are facing when they bring a dismissal application so that they may determine how to frame their arguments.
[55] I agree with Display Fixtures that it would be unfair to allow Mr. Ayroso to change the goal posts in the middle of the application to dismiss process. Mr. Ayroso raises several entirely new allegations in his response that are unrelated to the claims set out in the complaint. He did not apply to amend his complaint as required by the Rules. And, allowing the new allegations would change the character of the complaint, including by adding new grounds. For these reasons, I have not considered the new allegations in reaching my decision on the dismissal application.
[56] Next, I turn to the remaining allegations in the complaint and explain why I am persuaded, based on the materials before me, that none have a reasonable prospect of succeeding at a hearing.
A. Alleged use of racial slur “flip”
[57] Display Fixtures argues that there is no reasonable prospect that Mr. Ayroso will prove at a hearing that JB referred to him as a “flip.” In support of this position, Display Fixtures attached copies of the two emails it says Mr. Ayroso provided to HR in response to the request for more information about his complaint, including the allegation that JB had referred to him as a “flip.” Display Fixtures also provided a copy of the Review Division’s decision, in which it made findings about whether JB referred to Mr. Ayroso as a “flip.”
[58] I begin by reproducing the contents of the emails.
[59] July 29, 2020, email from JB to Mr. Ayroso and two others with the subject line “Pressure washer”:
So, Is there names on them? Who the heck is bringing them back to the office and putting a tag saying it needs to be repaired??? Who the flip do you expect is going to repair the flippin thing? Paul??? Me??? Is there names in the sign out book on who returned them? What the flip is wrong with people!
[as written with emphasis added]
[60] March 24, 2021, email from JB to Mr. Ayroso and two others with the subject line “Checking into 1517”: “Why is it so flippin hard for Vince to explain what he is doing when he checks in?” [as written with emphasis added]
[61] Mr. Ayroso does not dispute that these are the emails that he relies on in support of this allegation. He reproduces the contents of the March 24, 2021, email in his response and points to the fact JB used his name “Vince,” to argue that it shows JB directed the slur at him.
[62] In the WorkSafeBC proceeding, the Review Division specifically considered JB’s use of the word “flip” in the July 29, 2020, email and concluded, based on the context of the email, that JB was using it as a substitute for a swear word and not a racial slur directed at Mr. Ayroso.
[63] Display Fixtures argues that the Tribunal should not relitigate this factual finding by the Review Division, and that based on this finding, this aspect of the complaint has no reasonable prospect of success.
[64] Mr. Ayroso does not address Display Fixtures’ argument that he should be estopped from attempting to relitigate the factual findings in the Review Division decision. The only comment Mr. Ayroso makes about the Review Division decision is that the review officer failed to consider a psychological assessment, and on this basis, he is appealing the decision that concluded he did not experience a traumatic event or significant stressor, and he is not entitled to compensation for a mental disorder under s. 135(1) of the Workers’ Compensation Act.
[65] Where an issue has already been finally decided in a prior judicial proceeding with the same parties, a person may not be allowed to re-litigate that same issue in another forum: Penner v. Niagara (Regional Police Services Board), 2013 SCC 199 at para. 29. The legal principal is called “estoppel”. If that issue is determinative of a person’s human rights complaint, the Tribunal may dismiss the complaint on the basis that it has no reasonable prospect of success: Krsmanovic v. Snowflake Trading, 2012 BCHRT 113 at paras. 24-26; Stein v. Keebler and others, 2015 BCHRT 79 at para. 101; Fox v Strata Plan KAS 1911 and others, 2018 BCHRT 259 at para. 32. The test was set out by the Supreme Court of Canada: Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44 at para. 25.
[66] I am satisfied, on the materials before me, that the test for issue estoppel is met in respect of the Review Division’s factual finding about the use of the word “flip” in the July 29, 2020, email specifically the finding that JB was using it as a substitute for a swear word and not a racial slur directed at Mr. Ayroso.
[67] First, I am satisfied that the same factual question has been decided by the Review Division, which is before the Tribunal, i.e., whether JB referred to Mr. Ayroso with a racial slur in the July 29, 2020, email. Second, I am satisfied, and there appears to be no dispute that the Review Division decision was final, subject to appeal or judicial review. Finally, I am satisfied that the parties were the same. As I understand it, both parties participated in the Review Division process. Finally, I am satisfied that as a matter of fairness, I should apply issue estoppel. In doing so I give due consideration to the strong policy factors that weigh against re-litigation of the same issues. Mr. Ayroso has not explained why fairness should allow him to re-litigate this factual issue at this Tribunal.
[68] What this means is that at a Tribunal hearing, the parties would be bound by the Review Division’s finding that JB was using the word “flip” as a substitute for a swear word and not a racial slur directed at Mr. Ayroso. It necessarily follows that this aspect of the complaint has no reasonable prospect of success before the Tribunal, and I dismiss it under s. 27(1)(c).
[69] Moreover, and in the alternative, I agree with Display Fixtures that it is apparent on the face of the emails that there is no reference to Mr. Ayroso being called a “flip” in either email. I also accept that it is apparent on the face of both emails that the use of the word “flip” appears to be a substitute for a swear word and for the purpose of expressing strong emotion or adding emphasis.
B. Different check in procedure
[70] Display Fixtures argues that it required Mr. Ayroso to check in via email rather than by text for entirely non-discriminatory reasons. Specifically, it asserts that it had concerns with Mr. Ayroso’s check ins by text. It asserts that Mr. Ayroso repeatedly advised that he was working at the same location and was vague on the duties he was performing. Display Fixtures says that the purpose of requiring him to check in by email was to obtain more information on what work he was performing at those locations to understand why his continued presence was warranted at those facilities. Display Fixtures claims that JB implemented the email procedure for two other technicians, one of whom was white, based on the same concerns he had with Mr. Ayroso’s check-ins by text.
[71] Display Fixtures argues that the requirement for Mr. Ayroso to provide email check-ins was reasonable in all the circumstances and the Union agreed. In addition, Display Fixtures asserts that despite being warned about the consequences, Mr. Ayroso continued to refuse to comply with the check ins by email.
[72] In support of its non-discriminatory explanation for requiring email check-ins, Display Fixtures provided several documents with its application to dismiss, including:
a. Emails between Mr. Ayroso and the new manager, where the new manager asks him to provide information about what he is working on and where, to better understand the workload involved and what he is spending his time doing.
b. A disciplinary form regarding Mr. Ayroso’s failure to follow instructions to provide daily check-ins via email.
c. An email from the new manager to HR where he refers to a conversation with the Union and notes that the Union does not have a problem with the requirement that Mr. Ayroso do his check in by email.
d. An email from the Union to Mr. Ayroso, where the Union states its view that Mr. Ayroso is unable to demonstrate that he is being discriminated against; that management has the right to request him to check in with them in any manner they wish to; and after speaking with the new manager, the Union’s concerns were satisfied. The Union further expresses concern about Mr. Ayroso’s reaction towards following instructions from his employer. The Union forwarded a copy of this email to the new manager at Display Fixtures.
[73] In his response, Mr. Ayroso does not address Display Fixture’s arguments or evidence regarding this allegation. Rather, he simply reiterates his view that JB and the new manager bullied, harassed, and discriminated against him. This means that Mr. Ayroso did not address the argument and evidence that there was a non-discriminatory reason for requiring him to check in by email. Mr. Ayroso also does not provide any evidence to support the allegation that his race was a factor; what adverse impact there was, if any; and/or any evidence which would otherwise conflict with the evidence offered by Display Fixture. In the absence of any evidence or argument from Mr. Ayroso on these points, I am satisfied based on the evidence put forward by Display Fixture that it is reasonably certain to establish at a hearing that it has a non-discriminatory reason for requiring Mr. Ayroso to provide email check-ins, i.e. to manage and monitor his work performance.
[74] Where Display Fixtures is reasonably certain to establish a non-discriminatory reason for the email check-ins, I am persuaded that this allegation has no reasonable prospect of success.
[75] I dismiss the allegation under s. 27(1)(c).
C. Service van allegation
[76] Mr. Ayroso lives in Burnaby. He alleges that on October 13, 2021, JB told him that he would have to drop off and pick up his service van in Abbotsford daily if he did not comply with the email check-in requirement. This allegation is directly related to the check-in allegation. For the sake of completeness, I address it separately.
[77] Display Fixtures argues that this allegation has no reasonable prospect of success for several reasons. First, it says that Mr. Ayroso was on an injury-related sick leave on the date that JB allegedly advised him of this. Second, Display Fixtures says that JB was no longer responsible for overseeing the technicians, including Mr. Ayroso on that date. The new manager had assumed responsibilities from JB on September 13, 2021, in anticipation of JB’s retirement. Third, even if true, Display Fixtures asserts that the directive was in response to Mr. Ayroso’s continued refusal to follow JB’s reasonable direction to do his daily check in by emails. And lastly, Display Fixtures asserts that despite the opportunity to do so, Mr. Ayroso did not raise this as part of his internal complaint that was investigated by HR.
[78] Mr. Ayroso did not address this part of the dismissal application.
[79] Where Mr. Ayroso does not challenge or contradict Display Fixture’s explanation and information, I am satisfied that this allegation has no reasonable prospect of success. I dismiss the allegation.
D. Digging trenches allegation
[80] Mr. Ayroso alleges that on March 24, 2021, JB told him in an email that he could be digging trenches for sewer line. He does not provide a copy of the email or provide any other details or context.
[81] Display Fixtures argues that Mr. Ayroso provides no basis to conclude that this comment was discriminatory. On the contrary, Display Fixtures argues that the allegation “defies logic” where JB would have known Mr. Ayroso was Filipino not Mexican since Mr. Ayroso asserts that JB referred to him as a “flip” due to him being Filipino. Display Fixtures also notes that, despite the opportunity to do so, Mr. Ayroso did not raise this allegation in his internal complaint that was investigated by HR.
[82] Mr. Ayroso does not address this aspect of the dismissal application other than to reiterate his belief that this comment demonstrates racial stereotype, based on his appearance.
[83] Without anything further from Mr. Ayroso, I am persuaded that this allegation amounts to speculation. Specifically, it is my view that given the lack of context and the contradiction highlighted by Display Fixtures, it would require speculation to infer a connection between the comment and Mr. Ayroso’s race. In these circumstances, I am satisfied it has no reasonable prospect of success at a hearing. I dismiss the allegation under s. 27(1)(c).
IV CONCLUSION
[84] I grant the application to dismiss under s. 27(1)(c) and (g) of the Code.
[85] The complaint is dismissed.
Kathleen Smith
Tribunal Member