Powell v. BC Ministry of Finance (Liquor Distribution Branch) (No.2), 2025 BCHRT 236
Date Issued: September 18, 2025
File: CS-001792, CS-007800
Indexed as: Powell v. BC Ministry of Finance (Liquor Distribution Branch) (No.2), 2025 BCHRT 236
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:
Harmony Powell
COMPLAINANT
AND:
His Majesty the King in Right of the Province of British Columbia as represented by the Ministry of Finance (Liquor Distribution Branch)
RESPONDENT
REASONS FOR DECISION
Tribunal Member: Edward Takayanagi
On their own behalf: Harmony Powell
Counsel for the Respondent: Rochelle Pauls
Date of Hearing: May 27-30, 2025
Location of Hearing: Via Videoconference
I INTRODUCTION
[1] Harmony Powell was a project manager with the Liquor Distribution Branch for His Majesty the King in Right of the Province of British Columbia as represented by the Ministry of Finance (Liquor Distribution Branch) [the LDB]. During her employment, Ms. Powell became pregnant. Ms. Powell alleges the LDB scrutinized her performance and harassed her during her pregnancy culminating in a letter requesting a meeting to discuss her work performance. Ms. Powell says this conduct was discrimination in employment on the basis of sex contrary to s.13 of the Human Rights Code.
[2] Ms. Powell subsequently filed a complaint alleging the LDB retaliated against her for filing her discrimination complaint, contrary to s.43 of the Code by asking intrusive questions about her request for a leave, denying her second request for a leave, deeming that she resigned when she did not return to work, and requiring her to repay her maternity leave allowance.
[3] The LDB denies discriminating or retaliating. The LDB says it treated Ms. Powell fairly in supervising her work performance and that all of the allegations of retaliation were simply the employer carrying out its regular duties.
[4] The Tribunal heard the two complaints over the course of a four-day hearing. While I do not refer to it all in my decision, I have considered all of the evidence and submissions of the parties. In this decision, I recount only the evidence and arguments required to explain my decision.
[5] For the reasons that follow, I find that Ms. Powell has not established a breach of the Code, and I dismiss the complaints. I have considered whether Ms. Powell’s allegations about the LDB’s conduct are the kind of adverse impacts contemplated in human rights jurisprudence. I find they are not.
II BACKGROUND
[6] Ms. Powell started working for the LDB on November 12, 2018, as a project manger. The LDB is a unionized workplace, and the terms and conditions of her employment are set out in a collective agreement.
[7] On February 19, 2019, Ms. Powell told her manager, Ms. Pacheleh that she was pregnant. She explained that she had a history of difficult pregnancies in the past, expressed that she had a great degree of anxiety about her pregnancy, and that she needed support to prioritize her health and the health of her unborn child.
[8] Ms. Powell found working while pregnant difficult. She experienced exhaustion, difficulty sleeping, nausea and fatigue. Ms. Powell would come into work late or take time off from work when she was feeling ill or when she needed to attend doctor’s appointments.
[9] On June 18, 2019, Ms. Pacheleh assigned Ms. Powell a new project. Ms. Powell said that she believed it would be better to assign the project to someone else in light of her upcoming maternity leave. Ms. Pacheleh told Ms. Powell to do what work she could on the project until her leave.
[10] On June 24, 2019, Ms. Powell met with Ms. Pacheleh and disclosed that her health had deteriorated as a result of her pregnancy and she would be moving up the start of her maternity leave from September 3, 2019, to August 4, 2019.
[11] Ms. Powell’s health issues further worsened, and she went on a short-term disability leave on July 8, 2019. Ms. Powell remained on leave until the start of her maternity leave on August 4, 2019.
[12] On August 6, 2019, Ms. Pacheleh sent Ms. Powell a letter stating that when Ms. Powell returned to work, the LDB would schedule a meeting to discuss her recent workplace performance. Ms. Powell did not return to work, and the meeting did not occur.
[13] Ms. Powell filed her discrimination complaint on August 6, 2020.
[14] Ms. Powell’s maternity leave was scheduled to end on January 31, 2021. In December 2020, Ms. Powell contacted the LDB requesting unpaid leave following her maternity leave due to “impacts from COVID-19 on childcare access.” The LDB requested additional information from Ms. Powell, which she provided. LDB granted Ms. Powell a leave of absence until September 7, 2021.
[15] On September 4, 2021, Ms. Powell requested an extension of her leave until her human rights complaint was resolved. The LDB denied her request and said Ms. Powell was expected to return to work on September 13, 2021.
[16] Ms. Powell wrote to the LDB on September 10, 2021, saying she disagreed with the LDB’s decision to deny her request and repeated her request for a leave until her human rights complaint was resolved.
[17] On September 16, 2021, the LDB wrote to Ms. Powell stating that her request for a leave was denied and she was required to return to work on September 27, 2021. The LDB said that if Ms. Powell did not return to work, in accordance with the collective agreement, she would be deemed to have resigned her employment. Ms. Powell did not return to work.
[18] On September 29, 2021, the LDB wrote to Ms. Powell stating she had failed to return to work as required. The LDB gave Ms. Powell a final opportunity to return to work by October 12, 2021.
[19] Ms. Powell did not return to work. On October 28, 2021, the LDB sent Ms. Powell a letter stating that she was deemed to have resigned her employment because she had failed to return to work. The LDB said that pursuant to the collective agreement Ms. Powell was responsible for repaying the top-up payments she received during her maternity leave.
III ANALYSIS
A. Discrimination
1. General Legal Principles
[20] To prove her discrimination case under s. 13 of the Code, Ms. Powell must prove, on a balance of probabilities, that: (1) she has the protected characteristics of sex and physical disability; (2) she experienced an adverse impact in her employment; and (3) her protected characteristics were a factor in the adverse impact: Moore v. British Columbia(Education), 2012 SCC 61 at para. 33.
[21] The LDB does not dispute that Ms. Powell’s pregnancy and related health issues are protected under the grounds of sex or physical disability. Therefore, the first issue I must determine is whether Ms. Powell has established that she experienced an adverse impact in employment and if so, whether her protected characteristics were a factor in that adverse impact.
[22] Ms. Powell alleges that after she told Ms. Pacheleh that she was pregnant, Ms. Pacheleh’s behaviour towards her changed. She says, Ms. Pacheleh harassed her, made a discriminatory remark in a conversation with her, assigned her inappropriate work, and reprimanded her for her pregnancy-related job performance issues. I will deal with each of Ms. Powell’s allegations in turn.
2. Harassment
[23] First, Ms. Powell alleges she was harassed by Ms. Pacheleh after she disclosed that she was pregnant. Ms. Powell testified that prior to disclosing her pregnancy she had an uncomfortable working relationship with Ms. Pacheleh. She thought Ms. Pacheleh was unprofessional and she tried not to engage with her when possible. Ms. Powell says her relationship with Ms. Pacheleh became worse after she told her she was pregnant.
[24] Ms. Powell alleges that after disclosing her pregnancy, Ms. Pacheleh’s behaviour towards her became hostile. She says Ms. Pacheleh was curt and rude. She says Ms. Pacheleh failed to respond to Ms. Powell’s texts and emails. Ms. Powell gave evidence that she texted Ms. Pacheleh on February 28, March 13, April 17, April 29, April 30, June 14, June 28, and July 3, 2019, to say she would be coming in late or would not be able to come into work because of pregnancy related symptoms or doctor’s appointments. Ms. Pacheleh did not respond to these texts. Ms. Powell did not give evidence about whether Ms. Pacheleh responded to texts before she knew of Ms. Powell’s pregnancy. Ms. Powell said she was never disciplined or told she could not be late or take time off but thought that “something doesn’t feel right.”
[25] Ms. Powell says that on one occasion, Ms. Pacheleh reprimanded her for her work performance about the status of a project. Ms. Powell says the interaction occurred four days after she had informed Ms. Pacheleh that she was experiencing difficulties with her pregnancy. Ms. Powell does not believe her performance warranted Ms. Pacheleh to speak to her and this was discriminatory bullying.
[26] The LDB’s position is that Ms. Pacheleh spoke with Ms. Powell about her performance and that such conduct is reasonable management of a workplace and does not amount to an adverse impact under the Code. The undisputed evidence is that Ms. Pacheleh regularly met with Ms. Powell, both before and after she disclosed her pregnancy, to discuss her performance.
[27] In the employment context, unequal power dynamics may contribute to an employee feeling bullied by the people exercising power over their employment. However, subjective feelings or even genuinely held beliefs are not always enough to prove discrimination: Singh v. A & M Enterprises Ltd., 2023 BCHRT 148 at para. 57. 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. 60 to 63. I have considered the entire context of the situation to see if any adverse impacts on Ms. Powell rise to the level of discrimination contrary to the Code.
[28] It is not uncommon for disputes to arise in the workplace where an employer takes issue with an employee’s conduct or performance in the workplace. Employees, such as Ms. Powell, may disagree with their employer’s instructions or expectations, or how those factors are communicated.
[29] Here, I find that the allegations made by Ms. Powell do not rise to the level of an adverse impact under the Code. I am not persuaded that Ms. Pacheleh not responding to Ms. Powell’s texts saying she would be late or absent is an adverse impact because there is no evidence that there were any consequences to Ms. Powell’s tardiness and absences. The undisputed evidence is that Ms. Powell was not denied any time off and was not reprimanded, disciplined, or penalized for her absences. The only instance when Ms. Pacheleh questioned Ms. Powell’s absence was on June 4, 2019, when she texted “is everything alright? Haven’t seen you this morning yet.” Ms. Powell reminded Ms. Pacheleh that she had a medical appointment, after which Ms. Pacheleh made no further comment. There is no evidence before me that Ms. Powell suffered any adverse effects because she took time off from work due to her pregnancy. Further, there is no evidence before me that before Ms. Powell disclosed her pregnancy, Ms. Pacheleh would respond to her texts and send replies.
[30] I accept that Ms. Powell felt upset when Ms. Pacheleh spoke to her about her performance and the status of a project. I appreciate that Ms. Powell does not believe her work performance warranted Ms. Pacheleh to reprimand her. However, in my view, Ms. Pacheleh speaking with Ms. Powell was a reasonable exercise of Ms. Pacheleh’s managerial authority. The evidence is that Ms. Powell was working on a project and updating the timeline for the project in light of her upcoming maternity leave. When an employee is scheduled to go on a leave, it is reasonable and expected that the employer will require updates on the status of ongoing projects for the purpose of knowledge transfer. This is necessary to continue to manage the workplace in the employee’s absence. There is little evidence about the substance of the conversation between Ms. Powell and Ms. Pacheleh. Ms. Powell says Ms. Pacheleh used a loud voice and was upset that the project was not further along. Ms. Powell did not provide further evidence about what was said during this meeting. On balance, I find that it was reasonable and not discriminatory for Ms. Pacheleh to speak with Ms. Powell about the status of projects.
[31] Further, while Ms. Powell characterizes the talk with Ms. Pacheleh as a reprimand, there is no evidence that Ms. Powell suffered any adverse employment consequences as a result of her talk. Ms. Powell was not penalized. Rather, the surrounding evidence, including the email correspondence sent by Ms. Powell to Ms. Pacheleh after the talk supports Ms. Pacheleh’s testimony that she was managing Ms. Powell by asking for the status of the project and instructing Ms. Powell on what tasks to prioritize.
[32] In reaching my conclusion, I have also considered the evidence of Ms. Pacheleh’s email she sent to herself on June 5, 2019. Ms. Pacheleh writes:
Harmony Powell always uses different excuses for being late, especially after weekends she shows up around 11 or even noon. She used all sorts of excuses before and after her pregnancy the excuses changed to need for sleeping more, etc….The amount of work she is doing is one/third of another PM in the same level, however, she suggests she doesn’t have the capacity to take anything else out but have time to spend lots of time socializing!” [sic]
[33] Ms. Pacheleh explained that the email is a self-help technique meant to process her feelings, let go of negative emotions, and distance herself from thoughts and feelings to view them more objectively. Ms. Powell says the email supports her allegation that Ms. Pacheleh did not like her and therefore she discriminated and bullied Ms. Powell for her pregnancy related work issues.
[34] Viewed in context, I am not persuaded that the email supports Ms. Powell’s allegation that she was bullied. This is because the undisputed evidence is that Ms. Powell was never disciplined, penalized, or reprimanded for the issues identified in the email. I accept Ms. Pacheleh’s evidence that the email was a form of self-help to distance herself from her emotions. I accept that Ms. Pacheleh was frustrated with Ms. Powell’s performance, however that alone is not sufficient to establish discrimination. The Tribunal cannot penalize a person for their thoughts and views when they have not acted on them in a discriminatory way. Here, the evidence is that Ms. Pacheleh felt frustrated by Ms. Powell’s conduct, but this frustration did not lead Ms. Pacheleh to treat Ms. Powell adversely as alleged.
3. April 30, 2019 Conversation
[35] On April 30, 2019, Ms. Powell arrived late to the office. Ms. Pacheleh asked what had happened when they were in the lunchroom. Ms. Powell explained that she was waking up multiple times during the night because of her pregnancy.
[36] Ms. Pacheleh made a comment along the lines of “Welcome to my world…that happens to me every night, get used to it.” Ms. Powell says the interaction made her feel attacked and she understood that lateness or absences related to her pregnancy would be unacceptable. Ms. Pacheleh testified that she intended the comment to be sympathetic to Ms. Powell, letting her know that Ms. Pacheleh too, has suffered restless nights.
[37] I accept that the comment relates to Ms. Powell’s difficulty sleeping because of her pregnancy. Ms. Powell found Ms. Pacheleh’s comment to be disrespectful and dismissive. Even if Ms. Pacheleh did not mean to offend with her comment and intended to express sympathy or solidarity with Ms. Powell, the comment landed negatively.
[38] Context is important when considering whether a comment is a breach of the Code. When determining whether discriminatory harassment has occurred, the Tribunal considers many factors, including, the egregiousness of the behaviour, the context of the interactions, and the impact the behaviour had on the complainant: Pardo v. School District No. 43, 2003 BCHRT 71 at para. 12.
[39] There is no question that pregnant women are a group historically discriminated against in employment, and that there were power dynamics in play given Ms. Pacheleh’s role as Ms. Powell’s supervisor. However, while the comment was upsetting to Ms. Powell, it is not enough to constitute a breach of the Code.
[40] In my view, Ms. Pacheleh’s words are not egregious or virulent. They do not communicate a message that Ms. Powell is less worthy of respect or dignity because of her protected characteristics. The comment was made in passing in the lunchroom. I do not find there is an implication that lateness or absences from work is unacceptable, especially in light of the undisputed evidence that Ms. Powell was late or absent from work multiple times after this interaction and was not reprimanded or disciplined.
[41] Ms. Pacheleh could, perhaps, have been more careful in her choice of words and been more sensitive to Ms. Powell’s situation, but I do not find she breached the Code on the basis of this comment.
4. Assigned a new project despite upcoming maternity leave
[42] On June 18, 2018, Ms. Pacheleh assigned Ms. Powell a new project. Ms. Powell told Ms. Pacheleh that she thought it would be better to assign the project to someone else in light of her upcoming maternity leave. Ms. Pacheleh instructed Ms. Powell to do her best and work on the project until she went on leave.
[43] Ms. Powell says it was discriminatory for Ms. Pacheleh to assign her the project. She says that Ms. Pacheleh should have known that Ms. Powell was overwhelmed and unable to work due to her pregnancy and she had a duty to inquire given Ms. Powell’s frequent absences and tardiness.
[44] Ms. Pacheleh testified that as part of her duties as manager she met regularly with Ms. Powell to review her work and provide coaching. She said Ms. Powell did not request an accommodation related to her pregnancy and simply said she did not want to take the project because she had an upcoming leave.
[45] Based on the evidence I am not persuaded that the assignment of the project was an adverse impact.
[46] It is not discriminatory for a manager to assign work to an employee under their supervision. Employers often organize work in a way that employees may not like. This, in an of itself, does not amount to an adverse treatment within the meaning of the Code: Yi v. QuickMobile and another (No. 2), 2018 BCHRT 215 at para. 46.
[47] Ms. Powell has not alleged that there was a pregnancy related reason preventing her from working on the project, just that she had an upcoming leave. The evidence before me is that Ms. Pacheleh frequently had one-on-one coaching sessions with Ms. Powell to discuss her performance. Ms. Pacheleh met with Ms. Powell when assigning the new project and Ms. Powell had an opportunity to raise concerns or request accommodations if there were pregnancy related reasons why the project was inappropriate. The evidence is that Ms. Powell did not raise any concerns other than the fact that she would be going on her maternity leave soon. I do not find that the assignment of a project is an adverse treatment within the meaning of the Code.
[48] Ms. Powell argues that LDB had a duty to inquire and accommodate her pregnancy. The question of whether the LDB did or did not meet its duty to accommodate Ms. Powell only arises if Ms. Powell first establishes the elements of her case. Here, I find she has not and therefore the duty was not triggered.
[49] There is no freestanding duty to accommodate: University of British Columbia v. Kelly, 2016 BCCA 271 at paras. 20-28. In an analysis under the Code, the duty to accommodate is considered as part of a respondent’s defence: Richey v. Trail Beer Refinery and others, 2019 BCHRT 38 at para. 35. This is because the duty is only triggered once an employer knows or should have known an employee is experiencing a disability-related adverse impact: CFO v. The Organization and others (No. 2), 2020 BCHRT 213 at para. 77.
[50] An employer may have a duty to inquire when it is not clear that accommodation is required, but there is reason to believe accommodation may be required: Lewis v. Hour of Power Canada and another, 2018 BCHRT 251 at para. 88. The employee also has an obligation to disclose information that is relevant and necessary for an employer to determine what accommodation may be possible: Central Okanagan School District No. 23 v. Renaud, 1992 CanLII 81 (SCC), [1992] 2 SCR 970 at para. 994.
[51] I appreciate that Ms. Powell believes the LDB should have anticipated her needs and accommodated her by not assigning her a new project during her pregnancy. For the reasons above, I have not found that the assignment of work was an adverse impact. Even if I had, I am not persuaded that a duty to accommodate encompasses an obligation on an employer not to assign an employee reasonable work. This is especially so in this circumstance where the evidence is that Ms. Pacheleh frequently met with Ms. Powell to discuss her performance and met with Ms. Powell when assigning the new project. Ms. Powell was given an opportunity to raise concerns or request accommodations if there were pregnancy related reasons why the project was inappropriate and did not do so.
5. Performance Issues Letter
[52] On August 6, 2019, the LDB sent Ms. Powell a letter stating:
We are writing to inform you the Employer will need to meet with you regarding your recent workplace performance. The Employer will be holding these matters in abeyance until your return to work. Upon your return to work the Employer will schedule a meeting with you to address the concerns.
[53] Ms. Powell says she found the letter “incredibly stressful and humiliating.” She considered the letter “a threat by the employer to [her] ongoing employment.” Ms. Powell alleges the letter is discriminatory because her work performance is related to her pregnancy. She says the LDB, by issuing the letter, had concluded that her work performance, which was negatively affected by her pregnancy, was unacceptable.
[54] The LDB denies the letter is discrimination because it is not disciplinary in nature and simply provides that the LDB would schedule a meeting with her to discuss her performance at some indeterminate point in the future. Effectively, they argue that there is no adverse impact to Ms. Powell from a letter notifying her of a meeting that was not yet scheduled, and the outcome of which was uncertain.
[55] I appreciate that Ms. Powell felt stress when she received the letter. However, I am not persuaded that she suffered an adverse impact in employment. While the letter might have been stressful, the Tribunal has held that conduct causing stress and anxiety is not, necessarily discriminatory: Vandale v. Town of Golden and others, 2009 BCHRT 219 at para. 43. I accept the evidence of the LDB that the letter was not disciplinary in nature and had no negative effect on her employment. This is consistent with the evidence that Ms. Powell took her maternity leave as scheduled, received her full maternity top-up allowance, and her position was available for her if she returned from her leave.
[56] I find that Ms. Powell has not established discrimination because there was no adverse impact in employment.
B. Retaliation
[57] Ms. Powell filed her discrimination complaint on August 6, 2020. She says that all of LDB’s conduct towards her after that date was retaliation for filing her complaint. Specifically, she alleges that it was retaliatory for the LDB to ask questions about her request for a leave of absence before granting it, deny her second request for a leave of absence, deem her to have resigned when she did not return to work, and demand she repay her maternity leave top-up allowance.
[58] Section 43 of the Code protects people from retaliatory conduct for participating in a human rights complaint process:
43 A person must not evict, discharge, suspend, expel, intimidate, coerce, impose any pecuniary or other penalty on, deny a right or benefit to or otherwise discriminate against a person because that person complains or is named in a complaint, might complain or be named in a complaint, gives evidence, might give evidence or otherwise assists or might assist in a complaint or other proceeding under this Code.
[59] To succeed in her claim of retaliation, Ms. Powell must prove, on a balance of probabilities, that: (1) the LDB was aware of her human rights complaint; (2) the LDB engaged in conduct described in s. 43; and (3) there is a sufficient connection between the impugned conduct and the human rights complaint: Gichuru v. Pallai, 2018 BCCA78 at para. 58.
[60] In this case, there is no dispute that the first criteria of the retaliation test is met. Therefore, the issues I must determine is whether LDB’s conduct is conduct described in s. 43, and if so, whether there is a sufficient connection between that conduct and the human rights complaint.
[61] For the reasons that follow, I find Ms. Powell has not made out her retaliation complaint. Only LDB deeming her to have resigned and denying her leave request could fall within the scope of s. 43 and there is an insufficient connection between that conduct and her complaint to establish retaliation.
1. Did LDB engage in conduct described in s. 43?
[62] First, certain of LDB’s impugned conduct is not retaliation pursuant to the Code. Ms. Powell says LDB intimidated and penalized her by asking her questions when she requested a leave due to impacts from COVID-19 on childcare access. LDB agrees it asked Ms. Powell for information including to confirm her city of residence and the efforts she made to seek childcare services. I am not satisfied that asking questions related to a request for leave falls within the scope of “intimidation” in s. 43.
[63] The purpose of s. 43 is to create safe conditions for people to bring forward issues of discrimination. Intimidation, under the Code, captures conduct that carries the potential to deter a complainant from pursuing allegations of discrimination by generating fear or sense of powerlessness: Birchall v. BCS 61 Strata Corporation and another, 2018 BCHRT 29 at paras. 68-70. Whether conduct falls under s. 43 requires analysis on a case-by-case basis, assessed through the perspective of a reasonable human rights complainant: C.S.W.U. Local 1611 v. SELI Canada and others (No. 3), 2007 BCHRT 423 at para. 17.
[64] Ms. Powell has not persuaded me that the LDB’s request for information was aimed at deterring her from pursuing her human rights complaint. Rather, I have no trouble accepting that LDB was making a reasonable request for information to determine whether to grant her leave. The LDB gave evidence that prior to approving a leave of absence, it routinely asks employees about the reason for the request and supporting information. In this case, it says it needed to confirm Ms. Powell’s city of residence because that was the reason for her request. Further, upon receiving the requested information, LDB granted her the requested leave. Nothing about these circumstances suggest LDB’s request can properly be understood as intimidation.
[65] Similarly, I am not persuaded that the LDB requiring repayment of her maternity leave allowance can be interpreted as a penalty, denial of a benefit, or other discriminatory conduct for the purposes of s. 43. Ms. Powell’s position is that requiring an employee to repay a maternity leave allowance when they do not return to work, is indentured servitude. I cannot accept that position. Moreover, it is unhelpful to deciding the issue before me, which is confined to whether requiring repayment was retaliation for her human rights complaint.
[66] The undisputed evidence of the parties is that Ms. Powell signed a maternity leave allowance application on June 24, 2019, agreeing to reimburse the employer for her maternity leave allowance if she did not return to work and remain employed for at least six months after her leave. The LDB’s evidence was that this was a routine practice and conforms to the terms of the collective agreement. In my view, the LDB informing Ms. Powell of her contractual obligation is not the kind of conduct prohibited under s. 43.
[67] Ms. Powell was scheduled to return to work on September 8, 2021. Four days prior to her scheduled return date, Ms. Powell made a second request for a leave on September 4, 2021. Ms. Powell said that she wanted to extend her leave until her human rights complaint was resolved. LDB denied her request. Ms. Powell says the denial of her request was retaliation. I agree that a denying a request for a leave could be captured under s. 43 as a denial of a right or benefit. Accordingly, in the next section of this decision I will consider whether there is a sufficient connection between the denial and Ms. Powell’s complaint to establish retaliation. However, first I consider whether LDB determining that Ms. Powell had resigned could fall within the scope of s. 43.
[68] Ms. Powell did not return to work on September 8, 2021, the date which the LDB said she was to return. LDB subsequently directed Ms. Powell to return to work by September 13, 2021, and when she did not, it issued further direction to return on September 27 and October 12, 2021. LDB told Ms. Powell that if she did not return to work, she would be deemed to have resigned her employment. Ms. Powell did not return to work and LDB deemed her to have resigned.
[69] Ms. Powell says that deeming her to have resigned is retaliatory conduct prohibited under s. 43. The LDB argues that deeming Ms. Powell to have resigned is not captured under s. 43. I am persuaded that under the circumstances, the LDB determining that Ms. Powell has resigned and ending the employment relationship may be captured under s. 43’s prohibition against discharging or expelling a person. Therefore, I must next decide whether there is a sufficient connection between her complaint and deeming her resigned or denying her leave.
2. Is there a sufficient connection between the LDB’s conduct and the human rights complaint?
[70] A sufficient connection between impugned conduct and a human rights complaint may be established by proving that the respondent intended to retaliate, or may be inferred where the respondent can reasonably have been perceived to have engaged in that conduct in retaliation, with the element of reasonable perception being assessed from the perspective of a reasonable complainant, apprised of the facts, at the time of the impugned conduct: Gichuru v. Pallai, 2018 BCCA 78, at paras. 58 and 66.
[71] Pallai provides at para. 59 that:
Section 43 is different from other discrimination provisions in that it does not contain any sort of justification clause. However, the fact that respondents cannot justify retaliation under s. 43 of the Code does not mean that their evidence is unimportant. To the contrary, explanations offered by respondents must be considered together with all of the evidence in assessing whether the requisite connection has been established. In particular, in assessing the reasonableness of the perception that a respondent has engaged in retaliatory conduct, the respondent’s evidence, together with all of the evidence, informs the point of view of the reasonable complainant, who is taken to be apprised of the facts at the time of the impugned conduct.
[72] I am not persuaded that a reasonable complainant, apprised of all of the facts, would perceive the conduct of the LDB as retaliatory.
[73] First, the LDB explains that it denied Ms. Powell’s request for a second leave of absence because the request was not for a purpose recognized under the collective agreement and was for an indefinite period. That is, until her human rights complaint had resolved. Article 20 of the collective agreement sets out an employee’s entitlement to leaves. The LDB says, and I am persuaded by the evidence, that there is no provision in the collective agreement that entitles an employee to a leave because they have an ongoing legal proceeding against the employer. The LDB also says that it understood Ms. Powell had reservations about working under Ms. Pacheleh and changed her reporting relationship so she would not report to or work directly with Ms. Pacheleh. Further, Ms. Powell’s human rights complaint was at a very early stage of the proceedings. In fact, the LDB’s response had not yet been filed. LDB says it was not feasible to grant an indefinite leave that could potentially last several years, especially when there was no provision under the collective agreement for the type of leave requested.
[74] Second, the LDB says it deemed that Ms. Powell had resigned her employment solely because she did not return to work, and in accordance with the collective agreement. Article 21. 9 of the collective agreement provides that an employee will be deemed to have resigned if they do not return to work from maternity leave. The evidence shows LDB informed Ms. Powell of the consequences of not returning to work in letters dated September 9, 16, 29, and October 28, 2021. Ms. Powell does not dispute that she received these notices. In fact, her own evidence, including her correspondence with her union representative, shows that she was informed of the deemed resignation provision of the collective agreement and the consequences for not reporting to work when her request for leave was denied.
[75] For the above reasons, I cannot find that the LDB intended to retaliate, by inference or otherwise. I find that Ms. Powell has not established that the LDB’s conduct is retaliatory and I dismiss the complaint.
IV CONCLUSION
[76] I find the LDB did not violate the Code. Accordingly, both the discrimination and retaliation complaints are dismissed.
Edward Takayanagi
Tribunal Member