Nawaz (by Areeb Yasir) v. Justice Institute of British Columbia and another, 2025 BCHRT 238
Date Issued: September 19, 2025
File: CS-004302
Indexed as: Nawaz (by Areeb Yasir) v. Justice Institute of British Columbia and another, 2025 BCHRT 238
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:
Husnaa Nawaz (by Areeb Yasir)
COMPLAINANT
AND:
Justice Institute of British Columbia and Mary DeMarinis
RESPONDENTS
REASONS FOR DECISION
APPLICATIONS TO DISMISS A COMPLAINT AND TO ADD RESPONDENTS
Section 27(1)(c) and 27(1)(d)(ii) and Rule 25(2)
Tribunal Member: Andrew Robb
Agent for the Complainant: Areeb Yasir
Counsel for the Respondents: Mark E. Colavecchia
I INTRODUCTION
[1] Areeb Yasir filed a human rights complaint on behalf of Husnaa Nawaz, against Justice Institute of British Columbia [JIBC] and Mary DeMarinis [together, the Respondents]. JIBC is a post-secondary educational institution. Ms. DeMarinis is JIBC’s registrar and managed its registry department, where Ms. Nawaz worked. Ms. Nawaz says the Respondents treated her adversely due to her disabilities, in various ways, between 2018 and 2022. In particular, she says their monitoring of her attendance and their response to her absences from work were discriminatory, as they failed to consider that most of her absences were for reasons related to her disabilities.
[2] Ms. Nawaz is Muslim and describes her race as South Asian. In addition to her allegations based on her disabilities, she says the events described in her complaint show the Respondents singled her out for poor treatment for reasons related to her race and religion. In particular, she says the Respondents subjected her requests for accommodation and time off to more scrutiny than similar requests by her co-workers.
[3] The Respondents do not deny that they monitored Ms. Nawaz’s attendance. They say they had a right and a duty to do so, the steps they took were not discriminatory, and they reasonably accommodated her disabilities. They deny that Ms. Nawaz was treated differently than any other employee with the same attendance issues would be treated, and they say there is no basis for her allegation that her race and religion were factors in their conduct.
[4] The Respondents apply to dismiss the complaint on the ground that it has no reasonable prospect of success. They say Ms. Nawaz’s claim that her race, religion, and disabilities were factors in their conduct is speculative, and they are reasonably certain to prove they reasonably accommodated her disabilities. If the complaint is not dismissed in its entirety, the Respondents say the complaint against Ms. DeMarinis should be dismissed, because it does not serve the purposes of the Human Rights Code to proceed with that part of the complaint. They say Ms. DeMarinis was working in her capacity as an employee of JIBC, in all the events described in the complaint, and JIBC can fulfill any remedies ordered by the Tribunal.
[5] For the reasons set out below, I allow the application to dismiss the complaint, in part. I find some of Ms. Nawaz’s allegations, but not all of them, have no reasonable prospect of success. I find she has brought the connection between her disabilities and some of the adverse treatment alleged in her complaint beyond conjecture. While the Respondents accommodated her disability-related absences, there is evidence they applied pressure on her to reduce those absences, and that she faced negative consequences in her employment because of her absences. I am not satisfied the Respondents are reasonably certain to prove they accommodated her to the point of undue hardship. Nor am I satisfied they are reasonably certain to prove her race and religion were not factors in their decisions in relation to her absenteeism. In any event, since Ms. Nawaz’s complaint suggests she faced multi-faceted discrimination based on her intersecting characteristics, I find there is no efficiency to be gained, in the Tribunal’s process, by parsing out these characteristics and how they impacted her.
[6] I allow the Respondents’ application to dismiss the complaint against Ms. DeMarinis. While Ms. DeMarinis was in a position of authority at JIBC, I find it would not further the purposes of the Code to proceed with the complaint against her, considering that she was acting at all times within the scope of her employment, and JIBC has acknowledged its responsibility for her actions.
[7] In this decision I also address Ms. Nawaz’s application to add two additional employees of JIBC as respondents to the complaint. For the reasons set out below, I dismiss the application. The application was filed more than one year after the alleged discrimination by the proposed respondents, and I am not satisfied that it is in the public interest to add them as respondents, considering the delay.
[8] 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
[9] Ms. Nawaz was a registry officer at JIBC. Her position was unionised. Her direct supervisor was JIBC’s associate registrar, JK, who in turn reported to Ms. DeMarinis. Some of the events described in Ms. Nawaz’s complaint also involved JIBC’s human resources consultant, BS.
[10] Ms. Nawaz provided medical documentation showing she has sustained injuries in motor vehicle accidents and she been diagnosed with conditions that cause her to experience occasional severe pain, including fibromyalgia and migraines.
[11] Ms. Nawaz’s human rights complaint, as amended, includes allegations of adverse and differential treatment by the Respondents, for reasons related to her disabilities, race, and religion, from 2018 to 2021. I have sorted those allegations into categories, and I describe them in the following paragraphs.
A. Cold Workplace Allegation
[12] In November 2018, Ms. Nawaz says JIBC failed to accommodate her in a situation where the temperature in the workplace was too low [the Cold Workplace Allegation]. She says this affected her disproportionately due to her disabilities. She complained to JIBC staff, but she says the Respondents refused to accommodate her need for a warmer temperature, and she alleges this was due to her race and religion.
[13] The Respondents dispute Ms. Nawaz’s account of this incident. They say that upon complaining about the cold, she was given an additional portable heater and moved to a desk farther away from the vent that was making her cold. They say that one day after she complained, JIBC’s facilities staff adjusted the air flow in Ms. Nawaz’s area of the office, and then emailed her to ask if it helped. She said it did help, but she also said she felt facilities staff were dismissive of her concerns, in an earlier conversation about the cold.
[14] In her response to the application to dismiss, Ms. Nawaz does not deny the Respondents’ version of events. But she says the incident was still discriminatory because a facilities manager accused her of being rude, in her response to the email from facilities staff. She says her managers were more concerned about the accusation of rudeness than her health.
B. Family Accommodation Allegation
[15] In September 2020, JIBC started requiring all registry officers to answer telephone calls until 4:00 PM each day, instead of 3:45 PM, as they had previously done. Ms. Nawaz says she was unable to do this due to her caregiving responsibilities for her elderly parents, and she requested an exemption from the new schedule. The Respondents ultimately granted the exemption, and Ms. Nawaz does not suggest, in this complaint, that she faced discrimination based on her family status. But she says the Respondents subjected her request for accommodation to a higher level of scrutiny compared to requests by non-racialised employees [the Family Accommodation Allegation]. She says this was due, in part, to her race and religion.
[16] Ms. Nawaz says the Respondents required excessive documentation about her parents, to substantiate her need for accommodation. She says JIBC was more accommodating and flexible with other, non-racialised employees when they asked for accommodations. For example, she says, JIBC allowed one of her co-workers to work modified hours, and allowed another co-worker to work remotely, full-time, when she moved to a different city.
[17] The Respondents acknowledge that JIBC required medical documentation to substantiate Ms. Nawaz’s need for accommodation of her family caregiving responsibilities. They say their request for documentation was reasonable, and upon receiving the required documentation they accommodated Ms. Nawaz as she requested.
[18] The Respondents deny that JIBC was more flexible about accommodating other employees. They say only one other employee was approved for the same accommodation that Ms. Nawaz requested, in relation to the new telephone call schedule, and only temporarily.
C. Absenteeism Allegations
[19] Much of Ms. Nawaz’s complaint focuses on the Respondents’ monitoring of and response to her absences from work, starting in 2019 [the Absenteeism Allegations]. There is no dispute that the Respondents believed her absenteeism rate exceeded acceptable levels, and took steps to address this, including asking her to reduce her rate of absenteeism and, starting in December 2019, removing her ability to work a “flex time” schedule. Under the flex time schedule, some JIBC employees could opt to work an extra 30 minutes per day. They would then get a day off, or “flex day”, every three weeks.
[20] Ms. Nawaz says most of her absences were for reasons related to her disabilities, and all of them were for reasons beyond her control, including her disabilities, her injuries, and her need to support her son. She says some of the steps taken by the Respondents to address her absenteeism were unreasonable and amounted to discrimination, including their repeated requests for her to limit her absences, and the decision to remove her flex time.
[21] The earliest incident described in Ms. Nawaz’s complaint, in relation to the issue of her absenteeism, began on February 7, 2019, when Ms. Nawaz says JK suggested she should look for a different job. Ms. Nawaz says JK offered no explanation or reason for this, but later told Ms. Nawaz that Ms. DeMarinis had instructed her to make this suggestion. Ms. Nawaz says her non-racialised co-workers were not subjected to this type of treatment.
[22] The Respondents say Ms. Nawaz’s account of this incident leaves out important details. They say that during a department meeting, Ms. Nawaz and another registry officer said their jobs were making them sick and stressed, and JK met with them both to ask for further information. The Respondents say that in separate meetings with Ms. Nawaz and the other registry officer, JK acknowledged that the job could be stressful, and suggested that they could consider moving to a different position. JK says she spoke to Ms. DeMarinis about this incident, and Ms. DeMarinis told her she had an obligation to review options that might assist Ms. Nawaz. JK also says that in this incident, she suggested that Ms. Nawaz should consider no longer working a flex time schedule, to give her more time to rest each day.
[23] In her response to the application to dismiss, Ms. Nawaz does not deny JK’s account of this incident. But she says other, non-racialised employees also expressed frustrations similar to hers, about their jobs, and no one told them to look for another job.
[24] On March 5, 2019, Ms. Nawaz and JK had another meeting where they discussed Ms. Nawaz’s sicknesses and absenteeism. Ms. Nawaz says JK said she was documenting everything Ms. Nawaz was doing, and this made Ms. Nawaz feel intimidated and threatened. In a follow-up email to Ms. Nawaz, JK said her absenteeism was “compromising my ability to support a flex schedule for you” and expressed hope that Ms. Nawaz would seek resources to allow her to “improve your attendance and continue your flex schedule.”
[25] In December 2019, JIBC suspended Ms. Nawaz’s flex time schedule. This meant she would no longer work an extra 30 minutes per day, and she would not get a day off every three weeks. JK informed Ms. Nawaz about the decision. Ms. Nawaz’s contemporaneous notes say JK told her this was JK’s decision, but in a later email, dated October 5, 2020, JK appears to suggest that Ms. DeMarinis made the decision. JK says she told Ms. Nawaz the decision was made to avoid overextending her, and to see how shorter work-days would affect her. The Respondents say they wanted to see if working shorter days would help her to attend work more regularly.
[26] Ms. Nawaz opposed the decision. She says it was punishment for her absenteeism, even though the Respondents knew her absences were connected to her disabilities and other reasons beyond her control.
[27] Ms. Nawaz says the removal of her flex time was discriminatory. She says at least one of her co-workers was absent for more time than she was, but their flex time was not removed.
[28] The Respondents deny that any of Ms. Nawaz’s co-workers were absent as often as she was. Ms. DeMarinis and JK gave evidence about the number of days when Ms. Nawaz was off work and in receipt of short-term disability benefits, and about the departmental average. Their evidence is that her absenteeism rate was consistently above the departmental average, especially in 2019 and 2021.
[29] The Respondents also deny that Ms. Nawaz was treated differently than other employees. They say at least one other employee’s flex time was temporarily removed due to their absenteeism and then restored when the employee’s attendance improved. They also rely on an external investigation, described below, which found that Ms. Nawaz was not treated differently from others, regarding her absenteeism.
[30] At a meeting on February 6, 2020, Ms. Nawaz says JIBC renewed the decision to suspend her flex time for an additional six months, because she was absent five days in January 2020. The Respondents do not deny this. They say the purpose of the meeting was to review Ms. Nawaz’s absences in 2019, and advise her that JIBC would be monitoring her absenteeism going forward, and to provide information about supports for JIBC employees with medical issues. There is no dispute that Ms. DeMarinis told Ms. Nawaz her flex time would not be restored until her attendance improved. Ms. Nawaz says she felt singled out by this decision, and she felt harassed by later communications from Ms. DeMarinis about her attendance record and the need to reduce her absences.
[31] The Respondents say they ended the flex time program for all employees in Ms. Nawaz’s department in March 2020, as employees started working from home due to the pandemic. On the evidence before me, it is unclear when the flex time schedule resumed for other JIBC employees. Ms. Nawaz provided emails from JK showing employees in her department had flex days in July 2020 and subsequent months. Ms. Nawaz’s flex time was not restored, and she continued to complain to the Respondents about having her flex time removed.
[32] Between May and July 2020, Ms. Nawaz says Ms. DeMarinis harassed her about her attendance record, by repeatedly reminding her that her absences were above the departmental average, and asking her to make a plan to reduce her absences. Ms. Nawaz says this was unfair, as other staff were also frequently absent but did not face the same scrutiny, and it caused her to experience stress and depression. She says she sometimes worked on days when she felt sick, because she feared repercussions if she called in sick.
[33] The Respondents do not deny that they monitored Ms. Nawaz’s attendance during this period, and notified her that they were doing so. They say that while it may have been stressful for Ms. Nawaz to have her attendance monitored, she never advised JIBC that it caused her to experience depression.
[34] Internal JIBC email correspondence shows that in July 2020, BS and Ms. DeMarinis discussed the possibility of terminating Ms. Nawaz’s employment for reasons related to her absenteeism, but did not recommend doing so. In one email to BS, Ms. DeMarinis said:
We have sent a very important message to [Ms. Nawaz] about our employment expectations and while she is angry it seems to work to improve her attendance. Just the fact that she knows she is being monitored has made an improvement. She is still away more than others but she knows that I’m always looking and I think it makes a difference. I wish that I didn’t have to do this but she seems to need the external pressure.
[35] In an email dated September 22, 2020, Ms. DeMarinis told Ms. Nawaz there had been improvement in her absence rates in August and September 2020. The email said that if the improvement continued “for the next few months then we can talk about a flex schedule.”
[36] On October 5, 2020, Ms. Nawaz filed an internal complaint against Ms. DeMarinis, alleging harassment and discrimination based on her ethnic background and for taking medical leave. The complaint listed Ms. Nawaz’s concerns about having her attendance monitored, and her flex time removed. It also referred to some of the other allegations in Ms. Nawaz’s human rights complaint, including the Cold Workplace and Family Accommodation Allegations.
[37] JIBC hired an external consultant to investigate the complaint. The investigator interviewed Ms. Nawaz, Ms. DeMarinis, and other JIBC employees, and submitted a report, dated October 29, 2020, dismissing the complaint. The investigator found the complaint was sincere, and arose in the context of a deteriorating relationship between management and employees. But she also found that what Ms. Nawaz perceived as harassment about her attendance was a reasonable and necessary part of an employer’s responsibility to manage its workforce.
[38] The investigator’s report focused on issues related to Ms. Nawaz’s absenteeism. The investigator found Ms. Nawaz’s reasons for her absences were non-culpable, including injuries, surgeries, and having to attend to her son’s medical care. The report said JIBC had a right and a duty to monitor and address attendance issues, even though the reasons for Ms. Nawaz’s absences were non-culpable. The investigator said she reviewed JIBC’s employee leave data, and based on this data and her interviews with JIBC staff, she found that Ms. Nawaz was not the only employee being monitored for absenteeism. For this reason, the investigator dismissed Ms. Nawaz’s claim of mistreatment based on her race or ethnicity. The report did not refer to JIBC’s removal of Ms. Nawaz’s flex time.
[39] Ms. Nawaz says the investigation was biased because she was not given an opportunity to respond to the evidence provided by Ms. DeMarinis, and her union representatives were not interviewed. But she does not say what further information she would have provided in response to Ms. DeMarinis’s evidence, and she says her union staff representative told her there was no discrimination anyway. Ms. Nawaz says the union representative advised her to accept the report, and discouraged her from pursuing any further action. The Respondents say Ms. Nawaz’s union has not filed a grievance regarding any of the allegations in her human rights complaint.
[40] After the investigator dismissed Ms. Nawaz’s complaint, Ms. DeMarinis and BS continued to discuss how to respond to Ms. Nawaz’s absenteeism. In an email dated January 4, 2021, Ms. DeMarinis said she was “anxious to maintain pressure on this issue and will do whatever it takes to ensure [Ms. Nawaz] is adequately supported but more importantly that I have adequate service levels in the [registry office].”
[41] In an email to JK and Ms. DeMarinis, dated January 6, 2021, BS said Ms. Nawaz made an effort to improve her attendance in 2020. The email said:
Normally, once someone has made this level of improvement, we would begin to add back some of the perks they may have had prior to monitoring on a trial basis to see if the change is real and can be sustained. In the trial, if the absence level increases, the perks are once again removed. For example, modified work weeks are often removed as part of attendance monitoring because working additional hours in a day may negatively impact a person’s health. Once the additional hours are removed, if the absences diminish, you add the modified work week back in. If the absences increase, it is reasonable to conclude that additional hours are a contributing factor to the absences and should not be offered ongoing.
[42] BS went on to say she would not recommend restoring Ms. Nawaz’s flex time at that time, because Ms. Nawaz was on a temporary medical leave, and when she returned to work she had a different accommodation that prevented her from working an additional 30 minutes each day, as required under the flex time schedule. I understand this was a reference to the accommodation she requested in the Family Accommodation Allegation. Ms. Nawaz provided an email she received from JK, dated June 1, 2021, which appears to show this accommodation would be discontinued in July 2021.
[43] At some point in early 2021, JIBC asked its disability benefit administrator to review Ms. Nawaz’s file to determine if she had medical conditions that could explain her absenteeism. In June 2021, the benefit administrator said that based on the information in its file, she had no limitations that prevented her from working full-time. JIBC conveyed this information to Ms. Nawaz.
[44] On August 18, 2021, apparently in response to the benefit administrator’s review of her file, Ms. Nawaz gave JIBC a doctor’s note, saying she had a chronic condition with occasional exacerbations, which cause her to occasionally need time off work. In an email dated September 9, 2021, BS told Ms. Nawaz her absences were not occasional but frequent, and if she continued to exceed the average level of absenteeism in her department, her manager would continue to let her know about this.
[45] In response to BS’s email, Ms. Nawaz said she was being punished for absences that she had no control over, and complained about losing her flex days. She said she was concerned that Ms. DeMarinis was withholding her flex days due to the effects of her disabilities.
[46] The Respondents say that in 2022, Ms. Nawaz agreed to have her doctor provide further information about her condition, so JIBC would know what level of absenteeism to expect going forward. A letter from her doctor, dated October 17, 2022, said Ms. Nawaz had medical concerns but they did not generally affect her ability to work. However, it went on to say she had occasional exacerbations which affected her ability to work, and required her to take time off. In response to a question about whether she could attend work consistently, or whether her attendance pattern from previous years was likely to persist, the doctor only wrote, “unsure”.
[47] When Ms. Nawaz gave JIBC the letter from her doctor, she also provided her own written statement, dated September 29, 2022. Her statement said most of her absences from 2018 to 2022 were for reasons other than her chronic illness, including a motor vehicle accident, family illness, mental health, Covid, and migraines. The statement also said that on some occasions she attended work despite suffering from her chronic illness, because she feared retaliation for being absent.
D. Time Off Allegations
[48] Ms. Nawaz says JIBC management unreasonably refused her requests for time off on three occasions: in January 2020, August 2021, and September 2021. She suggests that these incidents were related to her absenteeism, in that she was being punished for being absent too often, and that they were related to her race and religion, as she says her non-racialised co-workers were approved for time off at the times when her requests were denied.
[49] On January 6, 2020, Ms. Nawaz requested the afternoon off on January 9, so she could take her son to a medical appointment. In her complaint she says JK denied the request but allowed a different employee to take the same afternoon off [the First Time Off Allegation].
[50] The Respondents deny this account. They say that each year, the beginning of the fall and winter semesters, i.e. the first two weeks of January and September, are the busiest times in the registry office, and registry officers are discouraged from taking time off during these periods. JK says the other employee who requested time off on January 9 made their request first, and when Ms. Nawaz requested the same time off, JK said she needed more time to determine whether there would be sufficient coverage to allow it. On January 7, JK says Ms. Nawaz told her that Ms. Nawaz’s husband could take their son to his medical appointment, so she no longer needed the time off. In her response to the application to dismiss, Ms. Nawaz does not deny any of this.
[51] Ms. Nawaz’s complaint says that in August 2021, she submitted a request for time off in early January 2022. She says this request was denied, but a co-worker’s request for time off at the same time was approved [the Second Time Off Allegation].
[52] The Respondents deny this account. They say the co-worker requested time off first, and when Ms. Nawaz initially made her request, she did not explain the reason for it, which was to take her son to university, in a city several hours away from home. When JIBC received this explanation, Ms. Nawaz’s request for time off was approved, and her co-worker’s time off was canceled. In her response to the application to dismiss, Ms. Nawaz does not deny this.
[53] On September 10, 2021, Ms. Nawaz says her request for time off to recover from a medical procedure was denied because it was during the registry office’s busy period [the Third Time Off Allegation]. But she says a non-racialised co-worker was allowed to take a day off during this period. The respondents do not deny that Ms. Nawaz requested time off to recover from a medical procedure, or that they denied the request, but they say no other employee in Ms. Nawaz’s department was given time off during the same period.
III DECISION
A. Preliminary issue: late response submission
[54] The Respondents argued the Tribunal should not consider Ms. Nawaz’s submission in response to the application to dismiss, because it was filed after the due date set by the Tribunal, and because of an issue about whether the response submission filed with the Tribunal was the same as the version of the submission that Ms. Nawaz sent to the Respondents.
[55] I previously informed the parties, by letter, that I decided to accept the response submission, despite the fact that it was filed late. I also decided the Respondents would have an opportunity to file a revised reply submission, to cure any unfairness arising from the issue about the different versions of the response submission. The Respondents filed a revised reply submission, and I have considered it in making this decision.
[56] The Respondents applied for costs against Ms. Nawaz, based on the issue about the different versions of the response submission. This decision does not address the costs application. The Tribunal will issue a separate decision about the costs application.
B. Section 27(1)(c) – No reasonable prospect of success
[57] The Respondents apply to dismiss Ms. Nawaz’s complaint under s. 27(1)(c) of the Code, on the basis that it has no reasonable prospect of success. Section 27(1)(c) is part of the Tribunal’s gate-keeping function. It allows the Tribunal to remove complaints which do not warrant the time and expense of a hearing. The onus is on the Respondents to establish the basis for dismissal.
[58] The Tribunal does not make findings of fact under s. 27(1)(c). Instead, the Tribunal looks at the evidence to decide whether “there is no reasonable prospect that findings of fact that would support the complaint could be made on a balance of probabilities after a full hearing of the evidence”: Berezoutskaia v. British Columbia (Human Rights Tribunal), 2006 BCCA 95 at para. 22. The Tribunal must base its decision on the materials filed by the parties, and not on speculation about what evidence may be filed at the hearing: University of British Columbia v. Chan,2013 BCSC 942 at para. 77.
[59] The threshold to advance a complaint to a hearing is low. In a dismissal application, a complainant does not have to prove their complaint or show the Tribunal all the evidence they may introduce at a hearing. They only have to show that the evidence takes their complaint out of the “realm of conjecture”: Workers’ Compensation Appeal Tribunal v. Hill, 2011 BCCA 49 at para. 27.
[60] Many human rights complaints raise issues of credibility. This is not, by itself, a sufficient reason to deny an application to dismiss: Evans v. University of British Columbia, 2008 BCSC 1026 at para. 34. However, if there are foundational or key issues of credibility, the complaint must go to a hearing: Francescutti v. Vancouver (City), 2017 BCCA 242 at para 67.
[61] To prove her complaint at a hearing, Ms. Nawaz will have to prove she has characteristics protected by the Code, she was adversely impacted in her employment, and her protected characteristics were a factor in the adverse impact: Moore v. British Columbia (Education), 2012 SCC 61 at para. 33. If she did that, the burden would shift to the respondents to justify the impact as a bona fideoccupational requirement. If the impact is justified, there is no discrimination.
[62] In this application, the Respondents do not deny that Ms. Nawaz is entitled to the protection of the Code based on her race and religion, and they do not deny that she has disabilities. But they say some of the incidents described in her allegations had no adverse impact on her employment, and she has no reasonable prospect of proving a connection between any alleged adverse impact and her disabilities, or her race or religion.
[63] Regarding Ms. Nawaz’s allegations of discrimination based on her disability, the Respondents say they reasonably accommodated her. If the Respondents are reasonably certain to establish a defence, then the complaint has no reasonable prospect of success: Purdy v. Douglas College and others, 2016 BCHRT 117 at para. 50.
[64] To establish a bona fide occupational requirement defence, at a hearing, the Respondents would have to prove their conduct was based on a standard that they adopted for a purpose rationally connected to the performance of Ms. Nawaz’s job, in an honest and good faith belief that the standard was necessary to the fulfillment of that legitimate purpose. This encompasses their duty to accommodate employees with disabilities to the point of undue hardship: British Columbia (Public Service Employee Relations Commission) v. British Columbia Government and Service Employees’ Union, [1999] 3 SCR 3 [Meiorin] at para. 54.
[65] In the following sections of this decision, I address Ms. Nawaz’s allegations in turn. Since I find that some, but not all, of the allegations have no reasonable prospect of success, I then consider whether to exercise my discretion to dismiss those allegations.
a. Cold Workplace Allegation
[66] This part of Ms. Nawaz’s complaint suggests the Respondents failed to accommodate her disabilities, for reasons related to her race and religion.
[67] As I understand the Respondents’ argument, they say Ms. Nawaz has not taken the connection between this allegation and her protected characteristics beyond conjecture, and in any event they are reasonably certain to prove they reasonably accommodated her disabilities.
[68] For the following reasons, I find the Respondents are reasonably certain to prove a defence to this allegation. Ms. Nawaz does not deny the Respondents’ evidence that suggests her concerns about the cold temperature were taken seriously, and addressed relatively promptly. It is undisputed that she was given an extra heater and moved to an area of the office that was not as cold, or that mechanical changes were made to prevent the problem from recurring. Ms. Nawaz suggests this could have been done more promptly, but she does not deny she was moved and given an extra heater the same day she complained, or that the mechanical changes were made the next day. She does not say what more the Respondents should have done to accommodate her disabilities. In my view, based on the undisputed facts, the Respondents are reasonably certain to prove they reasonably accommodated her.
[69] As I understand her argument, Ms. Nawaz’s claim that this allegation was connected to her race and religion relies on her claim that the Respondents failed to accommodate her disabilities. Since I have found the Respondents are reasonably certain to prove they reasonably accommodated her disabilities, it follows that she has no reasonable prospect of proving any connection to her race or religion.
[70] In her response to the application to dismiss, Ms. Nawaz makes additional allegations about JIBC facilities staff accusing her of being rude, just because she complained about the cold. She did not make these allegations in her human rights complaint, but even if she had, I am satisfied that she has no reasonable prospect of proving the response to her complaint about the cold was connected to her protected characteristics. In support of her claim that her concerns were marginalised and she was unfairly singled out, she provided emails between JIBC staff about this incident. She says these emails show JIBC staff were biased against her and treated her differently than others. But the emails she relies on only show that Ms. DeMarinis invited facilities staff to provide further information about their concerns about the situation. This is not sufficient to bring the connection between the response to her complaint and her protected characteristics beyond conjecture.
[71] For these reasons, I find the Cold Workplace Allegation has no reasonable prospect of success.
b. Family Accommodation Allegation
[72] Next, I turn to the Family Accommodation Allegation. Ms. Nawaz says her request for accommodation of her family caregiving obligations was subject to more scrutiny than similar requests by her non-racialised co-workers. She says this was discrimination on the grounds of her race and religion.
[73] The Respondents say Ms. Nawaz has not taken the connection between this allegation and her protected characteristics beyond conjecture. They say her race and religion played no part in their requests for documentation to support her request for accommodation. They say their requests for documentation were reasonable and were no different than what they would require from anyone else requesting a similar accommodation.
[74] For the following reasons, I am satisfied Ms. Nawaz has no reasonable prospect of proving this allegation was connected to her race or religion. On the evidence before me, I find her claim that she was treated differently than others is speculative.
[75] As evidence that the Respondents’ conduct was connected to her race and religion, Ms. Nawaz says her non-racialised co-workers’ requests for accommodation, including for modified hours and for fully remote work, were subject to less scrutiny than hers. But she does not identify the co-workers in question, and she does not explain how their requests were subject to less scrutiny than hers. For example, she does not suggest the co-workers were not required to provide medical or other documentation to support their requests.
[76] The Family Accommodation Allegation is based on differential treatment of Ms. Nawaz, relative to her non-racialised co-workers, but the evidence she relies on does not include any detail about who was treated differently, or how. Without this information, I find Ms. Nawaz has not brought the connection to her race and religion beyond conjecture. This allegation has no reasonable prospect of success.
c. Time Off Allegations
[77] I begin by addressing the First and Second Time Off Allegations, which say Ms. Nawaz’s requests for time off were unreasonably refused in January 2020 and August 2021, respectively. I address these allegations together because they raise similar issues. In both of them, there is undisputed evidence that Ms. Nawaz’s requests were not refused. The Respondents argue that Ms. Nawaz has not brought the connection between these allegations and her protected characteristics beyond conjecture.
[78] Regarding the First Time Off Allegation, in January 2020, Ms. Nawaz says the fact that a colleague was given time off for a medical appointment on the same day when Ms. Nawaz did not get time off, for a similar reason, shows she was treated differently than others. But she does not deny that her colleague asked for the time off first, at a busy time of year. Nor does she deny that JK did not actually deny Ms. Nawaz’s request, but only said she needed more time to determine if it could be accommodated.
[79] Considering the undisputed evidence that she withdrew her request for time off, and JK did not actually deny it, it is difficult to understand Ms. Nawaz’s allegation that this incident amounted to adverse treatment that was connected to her protected characteristics. I find she has not brought this connection beyond conjecture.
[80] Regarding the Second Time Off Allegation, when Ms. Nawaz made a request in August 2021 for time off in January 2022, there is no dispute that the request was ultimately granted, after Ms. Nawaz provided the reason for it. In her response to the application to dismiss, Ms. Nawaz says this incident was still discriminatory because she asked for four days off, and she returned to work after only three days. But she does not say why she returned after three days, and the evidence she relies on, in this allegation, does not suggest that anyone at JIBC required her to do so.
[81] Again, on the materials before me, it is difficult to understand Ms. Nawaz’s allegation that this incident amounted to adverse treatment that was connected to her protected characteristics. I find she has not brought this connection beyond conjecture.
[82] I reach a different conclusion regarding the Third Time Off Allegation. It is undisputed that the Respondents denied Ms. Nawaz’s request for time off in September 2021, and that the reason for the request was connected to her disabilities. The Respondents deny her claim that a non-racialised co-worker was allowed to take time off at the same time. In response to the application to dismiss, Ms. Nawaz provided a copy of her email to JK, dated September 10, 2021, asking why her request was denied, whereas her co-worker was given time off a few days later. Her email identifies the co-worker in question. The Respondents do not deny, in the materials before me, that this co-worker was approved to take time off.
[83] There is no dispute that the Respondents denied Ms. Nawaz’s request for time off because it was the first two weeks of the semester, the busiest time in the registry office. But the Respondents do not suggest that they tried to accommodate her, or that it would have been undue hardship to do so. I find they are not reasonably certain to establish their denial of her request was justified under the Code.
[84] Nor am I satisfied that Ms. Nawaz has no reasonable prospect of proving a connection between the Third Time Off Allegation and her race or religion. I find the issue of whether Ms. Nawaz’s request for time off was treated differently than her co-worker’s is foundational to whether the Third Time Off Allegation was connected to her race and religion. If her request for time off was treated differently than her non-racialised co-worker’s request, that could support a finding that her race and religion were a factor in the differential treatment, in the absence of any other explanation by the Respondents. Since I cannot resolve this disputed factual question on the materials before me, and it is key to her allegation based on race and religion, it must be decided at a hearing.
[85] For these reasons, I find the First and Second Time Off Allegations have no reasonable prospect of success, but I am not satisfied the Third Time Off Allegation has no reasonable prospect of success.
d. Absenteeism Allegations
[86] Much of Ms. Nawaz’s complaint is about the Respondents’ response to her absences from work. She says they harassed her by insisting she reduce her absences, even though most of her absences were for reasons related to her disabilities. She also says she was adversely impacted by the decision to remove her flex time. She says this decision was connected to her race and religion, in addition to her disabilities, as her non-racialised co-workers were not subject to the same treatment.
[87] The Respondents say their requests for Ms. Nawaz to reduce her absences were not harassment, but were a legitimate part of an employer’s duty to manage the workplace, which includes monitoring employee attendance. They say the removal of her flex time had no adverse impact on her because it did not affect her pay or her total hours worked.
[88] For the following reasons, I am not satisfied that Ms. Nawaz has no reasonable prospect of proving the Respondents’ response to her absences from work had an adverse impact on her, which was connected to her protected characteristics. I first address the Respondents’ argument that removal of her flex time had no impact on her. I then turn to the connection between her disabilities and the Respondents’ response to her absenteeism, including whether the Respondents are reasonably certain to prove their conduct was justified. Finally, I address the connection between the response to her absenteeism and her race and religion.
i. Adverse impact
[89] Even if the removal of her flex time schedule did not affect Ms. Nawaz’s total pay or hours worked, I am not satisfied it had no adverse impact on her employment. The Respondents do not deny that she repeatedly asked for her flex time to be restored. Ms. Nawaz says she benefited from having a day off every three weeks, before her flex time was removed. It appears BS also saw the flex time schedule as a benefit: in the correspondence between BS and Ms. DeMarinis, in January 2021, Ms. DeMarinis said she wanted to maintain pressure on Ms. Nawaz to ensure she had adequate levels of service, and BS appeared to suggest, in response, that flex time was a “perk” that could be removed or restored depending on whether Ms. Nawaz’s absences decreased.
[90] The Respondents suggest that any impact arising from the removal of Ms. Nawaz’s flex time was limited, because it was only a short time between the decision to remove her flex time, in December 2019, and the removal of her co-workers’ flex time, in March 2020, when everyone started working remotely. However, the emails provided by Ms. Nawaz show that some of her co-workers returned to a flex time schedule by July 2020, whereas Ms. Nawaz’s flex time was never restored. The Respondents did not address this evidence, in their reply submission. Based on the evidence provided by Ms. Nawaz, the Respondents are not reasonably certain to prove that the flex time schedule was unavailable, for other employees in Ms. Nawaz’s department, for more than a brief period after March 2020.
[91] In any event, Ms. Nawaz refers to other adverse impacts arising from the Respondents’ response to her absenteeism. She says the Respondents repeatedly reminded her of her high absenteeism rate and asked her to reduce her absences, and consequently she sometimes worked on days when she did not feel well, for fear of further consequences. In the materials before me, the Respondents do not deny any of this.
[92] For these reasons, I am not satisfied that Ms. Nawaz has no reasonable prospect of proving the response to her absenteeism had an adverse impact on her employment.
ii. Disabilities
[93] For the following reasons, I am not satisfied that Ms. Nawaz has no reasonable prospect of proving a connection between her disabilities and the Respondents’ response to her absenteeism, or that the Respondents are reasonably certain to prove their conduct was justified as a bona fide occupational requirement, under s. 13 of the Code.
[94] There is ample evidence that some, if not most, of Ms. Nawaz’s absences were connected to her disabilities. She provided copies of doctor’s notes regarding her absences, which appear to confirm this connection. The Respondents do not dispute the contents of the doctor’s notes, and they acknowledge that she was eligible for disability benefits during most of her absences.
[95] The Respondents rely on Ms. Nawaz’s written statement dated September 29, 2022. The statement said most of her absences from 2018 to 2022 were for reasons other than her “chronic illness”. The Respondents say this raises doubts about the real reason for her absences. However, I note that the statement includes migraines and the need to recover from motor vehicle accidents as among the “other reasons” for her absences. In the amendment to her complaint, Ms. Nawaz says her disabilities include migraines and injuries from a motor vehicle accident. In the materials before me, the Respondents do not deny Ms. Nawaz’s claim that they knew of these disabilities, and do not suggest they are outside the scope of the complaint. I am not satisfied that Ms. Nawaz’s statement dated September 29, 2022, means she has no reasonable prospect of proving her absenteeism, and the Respondents’ response to it, was connected to her disabilities.
[96] I now turn to whether the Respondents are reasonably certain to prove their conduct was justified, because they reasonably accommodated Ms. Nawaz’s disabilities. They say they approved all her medical leaves and restrictions, and they continue to employ her, despite her absenteeism.
[97] There is some evidence that the Respondents denied her request for medical leave on at least one occasion, in the Third Time Off Allegation. But even apart from this incident, I am not satisfied they are reasonably certain to prove their actions were justified.
[98] The parties did not make submissions about the first two steps of the Meiorin analysis. For the purposes of this application, I will assume without deciding that the Respondents are reasonably certain to establish their actions were based on attendance standards that they adopted in good faith, for a rational purpose. However, I am not persuaded they are reasonably certain to prove their response to Ms. Nawaz’s absences, including their attempts to get her to reduce her absences, and the decision to remove her flex time, were reasonably necessary to the accomplishment of that purpose.
[99] The Respondents do not offer any arguments about why removing Ms. Nawaz’s flex time was reasonably necessary. Some of the Respondents’ evidence suggests this was done to support her, by giving her more time to rest each day. But the Respondents do not point to any evidence that removing her flex time benefited her, and there is evidence that they used the flex time schedule to apply pressure on her to reduce her absences. In any event, there is no evidence before me, and the Respondents do not argue, that restoring her flex time schedule would have caused JIBC to incur undue hardship.
[100] The Respondents rely on the external investigation report, which found that the Respondents—and all employers—have a right and a duty to monitor employees’ attendance and respond to any issues of concern. I understand their argument to be that their conduct was justified because they had a duty to inquire into the reasons for Ms. Nawaz’s absences.
[101] Ms. Nawaz says the investigation was flawed and biased, but I do not find her criticisms to be persuasive. She says she should have been allowed to give further information to the investigator, and her union representatives should have been interviewed. But without any explanation about what further information she would have provided, or why she believes interviewing her union representatives would have made a difference to the investigation, I am not persuaded that I should not consider the investigation report.
[102] However, even if the investigator’s conclusions are accepted, this does not necessarily mean the Respondents are reasonably certain to prove their actions were justified. The investigator’s report says employers must manage employees’ attendance, and finds Ms. Nawaz was not the only one whose attendance was monitored. But it does not address the question of whether the steps taken by the Respondents in relation to Ms. Nawaz’s attendance were reasonably necessary. In particular, it makes no reference to Ms. Nawaz’s central concern about her flex time being removed as punishment for her absences. The investigator’s report provides helpful context for the Absenteeism Allegations, but it is not determinative of this application.
[103] For these reasons, I find the Respondents are not reasonably certain to establish their response to Ms. Nawaz’s absenteeism was justified under the Code.
iii. Race and religion
[104] As I understand her argument, Ms. Nawaz says the Respondents’ response to her absences singled her out for poor treatment because of her race and religion. She says she experienced discrimination based on multiple, intersecting protected characteristics. She says her race and religion shaped how the Respondents responded to her disabilities, and she alleges multiple instances where she was treated adversely for conduct similar to her co-workers’ conduct, while her co-workers did not receive the same adverse treatment.
[105] Ms. Nawaz does not make any submissions about her religion, other than saying she is Muslim. She does not refer to the religion of her co-workers, who she says were not subject to the same negative treatment as her. I understand her allegation on the ground of religion to reflect her intersecting vulnerabilities to discrimination, as a Muslim person of South Asian descent.
[106] As evidence for her claim that her race and religion were factors in the response to her absenteeism, Ms. Nawaz says one of her co-workers, who does not have the same racial or religious background as her, was not subjected to the same treatment, even though the co-worker was absent for more time than she was. Ms. Nawaz says this co-worker was on medical leave for eight or nine months in 2020, and did not lose her flex days when she returned to work.
[107] The Respondents say Ms. Nawaz has no reasonable prospect of proving her race or religion were a factor in their response to her absences. They say she has not provided evidence to bring this allegation beyond conjecture. They rely on the external investigator’s report, which dismissed her claim that she was singled out for attendance monitoring based on her race or ethnicity. They deny that Ms. Nawaz’s co-worker who was on medical leave worked a flex time schedule when she returned to work. They say this co-worker returned to work shortly after March 2020, when flex time was suspended for all employees.
[108] The Tribunal has recognised that intersecting grounds require a nuanced approach, and it may be inefficient to attempt to parse out under s. 27(1)(c) whether there is no reasonable prospect a complainant can prove one protected characteristic or the other is a factor in the discrimination they allege: Pigeau v. School District No. 82 and another, 2024 BCHRT 340 at para. 108; Radek v. Henderson Development (Canada) and Securiguard Services (No. 3), 2005 BCHRT 302 at paras. 463-464; Matias v. The Hudson’s Bay Company and another, 2022 BCHRT 17 at para. 38. The Tribunal has also recognised complainants often face difficulty in proving discrimination based on characteristics related to race because people seldom express biases, prejudices, and unconscious beliefs openly: Ochebiri v. Corrpro Canada, 2019 BCHRT 99 at para. 66; Batson-Dottin v. Forensic Psychiatric Hospital (No. 2), 2018 BCHRT 246 at para. 4. Typically, whether these characteristics are a factor in the adverse impact a complainant experienced “is gleaned from reasonable inferences drawn from all of the circumstances”: Ochebiri at para. 66. But there is no presumption of discrimination: Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Bombardier Inc. (Bombardier Aerospace Training Center), 2015 SCC 39 at para. 88. Despite the undeniable existence of racism, and the subtlety of racial prejudice, any inference of discrimination must be rooted in the evidence of a particular case: Campbell v. Vancouver Police Board (No. 4), 2019 BCHRT 275 at para. 104.
[109] Considering these principles, and the low threshold that applies under s. 27(1)(c), I am satisfied Ms. Nawaz has brought the connection between her race and religion and the Respondents’ response to her absenteeism beyond conjecture.
[110] I am not persuaded that the external investigator’s report means Ms. Nawaz has no reasonable prospect of proving her allegations based on race and religion. The investigator found Ms. Nawaz was not the only employee whose attendance was monitored, and that this refuted her claim of mistreatment based on her race. But the investigator did not address the removal of her flex time, or the allegation that her co-worker who was on medical leave did not lose her flex time.
[111] The Respondents say Ms. Nawaz’s co-worker who was on medical leave did not return to a flex time schedule, because they returned to work in March 2020, and no one was working a flex time schedule at that time. But as I said above, Ms. Nawaz provided evidence that some of her co-workers returned to a flex time schedule a few months later, and the Respondents do not deny this, in the materials before me. In her response to the application to dismiss, Ms. Nawaz maintains that the co-worker returned to a flex time schedule.
[112] I find the issue of whether Ms. Nawaz was treated differently from her co-worker is foundational to whether her race and religion were factors in the response to her absenteeism. If Ms. Nawaz’s co-worker was allowed to maintain their flex time despite missing as much time due to medical leave as Ms. Nawaz, that could support a finding that Ms. Nawaz was treated differently for reasons related to her race and religion, in the absence of any other explanation for the alleged differential treatment. Since I cannot resolve this disputed factual question on the materials before me, and it is key to Ms. Nawaz’s allegation based on race and religion, it must be decided at a hearing.
[113] The burden is on the Respondents to prove Ms. Nawaz has no reasonable prospect of proving a connection between their conduct and Ms. Nawaz’s race and religion. On the evidence before me, I am not persuaded they have discharged their burden.
[114] Even if I found that Ms. Nawaz had not brought the connection to her race and religion beyond conjecture, I would decline to parse out and dismiss her allegations based on these grounds, in the context of Ms. Nawaz’s allegations about the response to her absenteeism. In my view there is no efficiency to be gained by dismissing this part of the claim: Byelkova v Fraser Health Authority, 2021 BCSC 1312 at para. 115. The allegations based on race and religion are about the same events as the allegations based on disability, and involve the same people, so excluding them would not significantly reduce the scope of the complaint, and could foreclose otherwise appropriate findings.
e. Conclusion on s. 27(1)(c)
[115] I allow the application to dismiss the complaint under s. 27(1)(c), in part. I dismiss the allegations that I have found have no reasonable prospect of success, namely the Cold Workplace Allegation, the First and Second Time Off Allegations, and the Family Accommodation Allegation.
[116] Since some of Ms. Nawaz’s allegations will proceed to a hearing, I considered whether any efficiency would be gained by dismissing any of them. It could be argued that the Tribunal should not parse out and dismiss allegations in a piecemeal way, as it could foreclose otherwise appropriate findings: Byelkova at para. 115. However, I find that dismissing the Cold Workplace, First and Second Time Off, and Family Accommodation Allegations is likely to create efficiency in the Tribunal’s process, as they would likely add to the number of witnesses and the time required for a hearing. I also note that in all these allegations, Ms. Nawaz has not disputed the Respondents’ evidence that she received the accommodations she requested, for mitigation of her cold workplace, modified hours to accommodate her family obligations, and time off from work. Since Ms. Nawaz does not deny the Respondents’ version of events regarding these allegations, it is unlikely that dismissing them could foreclose otherwise appropriate findings.
[117] The Third Time Off and Absenteeism Allegations will proceed to a hearing.
C. Section 27(1)(d)(ii) – Proceeding would not further the purposes of the Code
[118] Section 27(1)(d)(ii) allows the Tribunal to dismiss all or part a complaint where proceeding with it would not further the purposes of the Code. These purposes include both private and public interests: s. 3. Deciding whether a complaint furthers those purposes is not only about the interests in the individual complaint. It may also be about broad public policy issues, like the efficiency and responsiveness of the human rights system, and the expense and time involved in a hearing: Dar Santos v. UBC, 2003 BCHRT 73, at para. 59, Tillis v. Pacific Western Brewing and Komatsu, 2005 BCHRT 433 at para. 15, Gichuru v. Pallai (No. 2), 2010 BCHRT 125, at paras. 113-118.
[119] The Respondents argue that it would not further the Code’s purposes to proceed with the complaint against Ms. DeMarinis: Daley v. BC (Ministry of Health), 2006 BCHRT 341. They say that during the events described in the complaint, Ms. DeMarinis was acting in her capacity as a manager employed by JIBC, and JIBC is liable for her conduct.
[120] There are strong policy reasons that favour complaints against individual respondents. As the Supreme Court of Canada has acknowledged, “the aspirational purposes of the Code require that individual perpetrators of discrimination be held accountable for their actions”: British Columbia Human Rights Tribunal v. Schrenk, 2017 SCC 62 at para. 56.This is especially true for allegations of discrimination with a high degree of personal culpability, like sexual or racial harassment: Daley at para. 53.
[121] On the other hand, naming individual respondents can complicate and delay the resolution of complaints, exacerbate feelings of personal animosity, and cause needless personal distress to individuals who are accused of discrimination: Daley at para. 54. Because employers and institutional respondents are liable for the acts of their agents, they will be responsible for any remedy ordered by the Tribunal: Code, s. 44(2); Robichaud v. Canada, [1987] 2 SCR 84. In some situations, the remedial aims of the Code may be most fairly and efficiently fulfilled without holding individuals liable.
[122] The Tribunal balances all these considerations to decide whether the purposes of the Code are best served by having a complaint proceed against individuals as well as an institutional respondent, or against the institutional respondent only. The Tribunal has identified the following factors as relevant:
a. whether the complaint names an institutional employer as a respondent and that respondent has the capacity to fulfill any remedies that the Tribunal might order;
b. whether the institutional respondent has acknowledged the acts and omissions of the individual as its own and has irrevocably acknowledged its responsibility to satisfy any remedial orders which the Tribunal might make in respect of that individual’s conduct; and
c. the nature of the conduct alleged against the individual, including whether the conduct took place within the regular course of their employment; whether the individual is alleged to have been the directing mind behind the discrimination or to have substantially influenced the course of action taken; and whether the conduct alleged against the individual has a measure of individual culpability, such as an allegation of discriminatory harassment.
Daley at paras. 60-62.
[123] For the following reasons, I find that proceeding with the complaint against Ms. DeMarinis would not further the purposes of the Code. The first two Daley factors are established. JIBC is an institutional respondent and there is no dispute about its capacity to fulfill any remedies the Tribunal may order. JIBC says that at all times, Ms. DeMarinis was acting in her authority as a JIBC employee. JIBC has assumed responsibility for her conduct, and has undertaken to pay any damages that may be ordered on her account.
[124] That leaves the nature of the allegations against Ms. DeMarinis. In the materials before me, Ms. Nawaz does not dispute that these allegations are about conduct that was within the regular course of Ms. DeMarinis’s employment. But she says Ms. DeMarinis took a directing role in the alleged discrimination. She says Ms. DeMarinis was responsible for removing her flex time, but the evidence before me is not clear on this point, as Ms. Nawaz’s own notes say JK told her JK was responsible for the decision to remove her flex time.
[125] Some of Ms. Nawaz’s allegations could suggest Ms. DeMarinis’s conduct involved a measure of individual culpability. She says Ms. DeMarinis harassed her by scheduling frequent meetings and contacting her repeatedly about her absences in 2020 and 2021, even though Ms. DeMarinis knew most of her absences were connected to her disability. But on the evidence before me it is clear that Ms. DeMarinis had the support of other JIBC managers and human resources staff. Ms. Nawaz’s allegations suggest Ms. DeMarinis’s conduct was part of a concerted effort by not just Ms. DeMarinis but also JK and BS, to respond to what they perceived as excessive absenteeism. While Ms. DeMarinis was in a position of authority, as JIBC’s registrar, this is insufficient to establish that she was the directing mind behind the alleged discrimination.
[126] In response to the application to dismiss, Ms. Nawaz says Ms. DeMarinis is an appropriate respondent because she was trying to terminate Ms. Nawaz under the pretext of managing her attendance. In support of this submission, Ms. Nawaz cites internal emails between Ms. DeMarinis and BS, and says these emails show the Respondents had a plan to terminate her. The emails show that in July 2020, a senior JIBC administrator, CV, inquired about “the process” involving Ms. Nawaz, and Ms. DeMarinis told CV she was coaching Ms. DeMarinis about her attendance, but it was not a disciplinary issue. Later emails show that in January 2021, BS and Ms. DeMarinis discussed a plan for addressing Ms. Nawaz’s absences, involving consulting with the benefit administrator about whether her disabilities justify her absences, but these emails do not refer to the possibility of termination. Since the allegation that Ms. DeMarinis was trying to terminate Ms. Nawaz does not appear to be supported by the evidence that Ms. Nawaz relies on, I find it does not support proceeding against Ms. DeMarinis.
[127] While Ms. Nawaz’s allegations suggest some degree of personal culpability by Ms. DeMarinis, and Ms. DeMarinis was in a position of authority at JIBC, I find that these factors are outweighed by the considerations that support dismissing the complaint against Ms. DeMarinis. It is not disputed that Ms. DeMarinis was acting at all times within the scope of her authority, with the support of JIBC management and human resource staff, and JIBC has acknowledged its responsibility for her actions. For these reasons, I find that proceeding with the complaint against her would not further the purposes of the Code.
[128] I dismiss the complaint against Ms. DeMarinis, under s. 27(1)(d)(ii).
D. Application to add respondents
[129] After the Respondents filed their application to dismiss, Ms. Nawaz applied to add JK and CV, the senior JIBC administrator, as respondents to the complaint. The Tribunal advised the parties that it would make a decision about whether JK and CV would be added as respondents after making a decision about the application to dismiss.
[130] I find I can resolve the application to add JK and CV as respondents, without submissions from them or from JIBC. For the following reasons, I dismiss the application.
[131] Under Rule 25 of the Tribunal’s Rules of Practice and Procedure, a party who wants to add a respondent to a complaint must:
a. Explain why doing so will further the just and timely resolution of the complaint;
b. Set out facts that, if proven, could establish a contravention of the Code by the proposed respondent; and
c. Explain why it is in the public interest to add the proposed respondents and why no substantial prejudice will result to any person because of the delay, if the application is filed after the time limit for filing a complaint in s. 22 of the Code, in respect of the allegations against the proposed respondents.
[132] Ms. Nawaz’s application to add CV and JK is based on email correspondence the Respondents disclosed to her during the complaint process. Regarding CV, Ms. Nawaz says emails from July 2020, between BS and Ms. DeMarinis, show CV instructed other JIBC employees to terminate Ms. Nawaz because of her absenteeism, even though CV knew most of Ms. Nawaz’s absences were connected to her disabilities. Regarding JK, Ms. Nawaz says the emails show JK was indifferent to Ms. Nawaz’s medical condition when she suggested Ms. Nawaz should look for a different job, in February 2019, and in additional incidents in January 2020 and May 2022.
[133] Ms. Nawaz’s application to add respondents includes a publication about systemic racism, and says JIBC’s management, at the time of the alleged discrimination, was primarily non-racialised. As I understand her argument, she says adding individual JIBC managers and administrators as respondents to the complaint will promote the just resolution of the complaint by highlighting that systemic racism may arise from a lack of diversity in JIBC management.
[134] I first address whether the facts alleged in Ms. Nawaz’s application to add respondents could, if proven, establish contraventions of the Code by JK and CV. Ms. Nawaz says they engaged in a concerted effort to terminate her, based on her medical condition and her racial background. The application does not describe any specific incidents involving CV, but refers to the emails included in the application, and says they show that CV conspired with others to terminate Ms. Nawaz for reasons related to her protected characteristics. But in my view, the emails do not support this. The emails included in Ms. Nawaz’s application do not include any correspondence to or from CV. They merely say that, on one occasion in July 2020, Ms. DeMarinis spoke to CV about Ms. Nawaz, and explained that she was coaching Ms. Nawaz about her absenteeism, but it was not a disciplinary process, and CV apparently suggested the process could move faster. The emails show that when Ms. DeMarinis shared this with BS, BS speculated that CV was suggesting termination. There is no other reference to CV in any of the materials Ms. Nawaz filed in support of her application to add CV as a respondent.
[135] Neither the complaint nor Ms. Nawaz’s application to add CV as a respondent sets out facts that could, if proven, establish that CV was engaged in a conspiracy to terminate Ms. Nawaz, or otherwise discriminated against her. Notwithstanding BS’s speculation, I do not read Ms. DeMarinis’s email, in July 2020, as saying CV suggested Ms. Nawaz should be terminated. Ms. Nawaz does not explain how CV’s comment to Ms. DeMarinis, if proven, could support a connection between Ms. Nawaz’s disability, or her race and religion, and any adverse impact alleged in the complaint. In particular, Ms. Nawaz does not suggest that Ms. DeMarinis, or anyone else, took any action based on CV’s suggestion that the process could move faster.
[136] I reach a different conclusion regarding the allegations against JK. The application to add her as a respondent says, among other things, that JK was involved in the removal of Ms. Nawaz’s flex time, and that she treated Ms. Nawaz differently than her co-workers in May 2022, when she set restrictions on when Ms. Nawaz could take time off for medical appointments. These allegations, if proven, could establish a contravention of the Code by JK.
[137] I now turn to the timeliness of the application to add respondents. Rule 25 says that if an application is filed after the time limit for filing a complaint, in respect of the allegations against a proposed respondent, the applicant must explain why it is in the public interest to add the proposed respondent. This is a reference to s. 22 of the Code, which says that if a complaint is filed more than one year after the alleged contravention of the Code, or the last alleged instance of a continuing contravention of the Code, the Tribunal may accept it if it is the public interest to do so, and no substantial prejudice will result to any person because of the delay.
[138] The application to add respondents was received by the Tribunal on July 10, 2024. Ms. Nawaz argues it should be considered as having been received on December 18, 2023, since she first attempted to send it to the Tribunal on that date. I understand the Tribunal did not receive it on that date because of issues with the file size, but it is not clear why it was not resubmitted until July 2024. In any event, I do not need to decide whether it should be deemed to have been filed earlier than the Tribunal received it, because I find that even if the application had been filed in December 2023, Ms. Nawaz has not established that it would be in the public interest to add JK and CV as respondents.
[139] The Tribunal assesses the public interest in a late-filed complaint in light of the purposes of the Code. These include identifying and eliminating persistent patterns of inequality, and providing a remedy for persons who are discriminated against: s. 3. It may consider factors like the length of the delay, the reasons for the delay, the complainant’s interest in accessing the Tribunal, the respondent’s interest in being able to continue its activities without worrying about stale complaints, whether the complainant got legal advice, and the public interest in the complaint itself: British Columbia (Ministry of Public Safety and Solicitor General) v. Mzite, 2014 BCCA 220 at para. 53 and 63; Hoang v. Warnaco and Johns, 2007 BCHRT 24; Complainant v. The Board of Education of School District No. 61 (Greater Victoria), 2022 BCHRT 44 at para. 18. These are important factors, but they are not necessarily determinative and not every factor will be relevant in every case: Goddard v. Dixon, 2012 BCSC 161 at para. 152. The inquiry is always fact and context specific.
[140] Ms. Nawaz argues that the public interest favours adding CV and JK as respondents because all relevant parties should be included in the case, to ensure a full exploration of the circumstances. I do not find this argument persuasive. Even if JK and CV are not added as respondents, that does not prevent them from being called as witnesses. If they have relevant evidence to give, the Tribunal can consider that evidence, and explore all the relevant circumstances, regardless of whether they are named as respondents.
[141] Turning to the length of the delay and the reasons for it, I first consider the application to add CV as a respondent. The only allegation involving CV dates back to July 2020. Even if Ms. Nawaz’s application was filed in December 2023, that would still be over three and a half years since the date of the allegation against CV. This significant delay weighs heavily against adding her a respondent. Ms. Nawaz says the reason for the delay in filing is because she did not know of CV’s involvement in the events described in her complaint until she received the Respondents’ disclosure, which included the emails from July 2020, referring to CV. She does not say when she received these emails, but I note they were included in the Respondents’ list of documents that was filed with the Tribunal, and sent to Ms. Nawaz’s representative, on November 18, 2022.
[142] Ms. Nawaz suggests that her disabilities prevented her from filing this application sooner, but she does not explain how. In particular, she does not explain how her disabilities affected her representative’s ability to communicate with her or file the application more promptly after receiving the Respondents’ disclosure.
[143] Considering the length of the delay in filing the application to add respondents, relative to the date of CV’s alleged discrimination, and the lack of information about why Ms. Nawaz did not apply to add CV as a respondent sooner, and my finding that Ms. Nawaz’s allegations against CV would not establish discrimination in any event, I am not satisfied that the public interest favours adding CV as a respondent.
[144] Again, the analysis is somewhat different regarding JK. Ms. Nawaz’s most recent allegation against JK refers to events in May 2022. But even if Ms. Nawaz’s application to add JK as a respondent is deemed to have been filed in December 2023, that is still more than one and a half years after the last incident of alleged discrimination.
[145] Ms. Nawaz does not make any additional arguments about the public interest in proceeding with the complaint against JK. As with CV, she says the public interest favours adding her because all relevant parties should be included in the case. As noted above, I do not find this argument persuasive.
[146] Although Ms. Nawaz’s application to add JK as a respondent relies on emails disclosed by the Respondents after Ms. Nawaz filed this complaint, Ms. Nawaz was aware that JK was involved in the allegations in her complaint well before she received the Respondents’ disclosure. Her amendment to the complaint filed September 29, 2021, refers to JK’s involvement in the Cold Workplace, Absenteeism, and Time Off Allegations. Yet Ms. Nawaz does not explain why she did not name JK as a respondent initially, or why she did not apply to add her as a respondent sooner.
[147] Although the delay between the date of JK’s most recent alleged discrimination against Ms. Nawaz and the date when Ms. Nawaz applied to add her as a respondent was not as long as the delay pertaining to CV, in the absence of any explanation for why Ms. Nawaz did not apply to add JK sooner, I am not satisfied that that the public interest favours adding JK as a respondent.
[148] Since Ms. Nawaz’s application to add respondents does not set out allegations that would, if proven, establish discriminatory conduct by CV, and since I have found it is not in the public interest to add CV or JK as respondents, considering Ms. Nawaz’s delay in applying to add them, I do not accept that adding them will further the just and timely resolution of the complaint. For these reasons, I dismiss the application to add them as respondents.
[149] In dismissing this application, I do not intend to minimise Ms. Nawaz’s concerns about systemic discrimination, but I am not persuaded that addressing those concerns requires the complaint to proceed against the individual respondents. In my view they can be addressed in the context of the complaint against JIBC.
IV CONCLUSION
[150] The application to dismiss is allowed, in part. The Cold Workplace, First and Second Time Off, and Family Accommodation Allegations are dismissed.
[151] The complaint against Ms. DeMarinis is dismissed in its entirety. The application to add JK and CV as respondents is dismissed.
[152] The Third Time Off and Absenteeism Allegations will proceed to a hearing, with JIBC as the only respondent.
Andrew Robb
Tribunal Member