Rogers v. Jim Dent Construction Ltd. and another, 2025 BCHRT 248
Date Issued: October 15, 2025
File: CS-005363
Indexed as: Rogers v. Jim Dent Construction Ltd. and another, 2025 BCHRT 248
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:
Ashleigh Rogers
COMPLAINANT
AND:
Jim Dent Construction Ltd. and ATS Traffic Group
RESPONDENT
REASONS FOR DECISION
APPLICATION TO DISMISS A COMPLAINT
Section 27(1)(c)
Tribunal Member: Ijeamaka Anika
Advocate for the Complainant: Sohrab Rezaei
Counsel for the Respondent ATS Traffic Group: Danica McLellan
Counsel for the Respondent Jim Dent Construction Ltd.: Richard Johnson
I INTRODUCTION
[1] Ashleigh Rogers made a complaint to the Tribunal alleging that ATS Traffic Group [ATS]and Jim Dent Construction Ltd [Dent Construction]discriminated against them because of their family status contrary to s. 13 of the Human Rights Code. ATS is Mx. Rogers’ employer and a subcontractor of Dent Construction. ATS terminated Mx. Rogers’ employment two days after Dent Construction terminated the employment of Mx. Rogers’ mother, Donna Guay. Mx. Rogers says the close temporal proximity between theirs’ and Ms. Guay’s termination, combined with their known family relationship and the change from a planned warning letter to termination, supports an inference that their family status was a factor in their termination.
[2] In this decision, I refer to ATS and Dent Construction together as the Respondents.
[3] The Respondents deny discriminating and apply to dismiss the complaint on the basis that it has no reasonable prospect of success. ATS says it terminated Mx. Rogers’ employment based solely on their job performance. For its part, Dent Construction says that Mx. Rogers was not its employee, and it did not make the decision to terminate their employment.
[4] For the following reasons, I deny the Respondents’ dismissal applications. 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. I make no findings of fact.
II BACKGROUND
[5] Dent Construction provided traffic control services on the Transmountain expansion project [the project]in British Columbia between February 2021 and May 2024. Dent Construction contracted ATS to provide traffic control management services for the project.
[6] Mx. Rogers began working for ATS in July 2021 as a traffic technician on the project. Mx. Rogers’ mother, Ms. Guay, worked for Dent Construction on the same project. Mx. Rogers says that their familial relationship with Ms. Guay was well known in the workplace and known to employees and supervisors at both Dent Construction and ATS, including a Dent Construction traffic control manager who supervised traffic personnel on the project [the manager]. The Respondents dispute that their employees were aware of the family relationship between Mx. Rogers and Ms. Guay.
[7] On August 12, 2021, ATS sent an email to some of its employees including Mx. Rogers’ supervisor regarding Mx. Rogers’ employment performance. The email stated that ATS had received complaints about Mx. Rogers’ “unsafe flagging practices” including Mx. Rogers having their back to traffic for extended periods of time, being on their cell phone frequently, not paying attention to traffic, and not paying attention to their surroundings. I refer to these complaints as the performance concerns. Mx. Rogers says that on August 12, 2021, their direct supervisor at the time told them about concerns regarding their flagging practices and that they should be mindful of it. Mx. Rogers says following that conversation, they made a conscious effort to address the concerns, and no one raised any further performance concerns with them.
[8] On October 7, 2021, an incident occurred between Mx. Rogers and the manager [the incident]. ATS says Mx. Rogers left their worksite with signs and cones still in position and raised their voice at the manager in an aggressive manner. ATS says Mx. Rogers’ conduct amounted to insubordinate behaviour towards the manager and was witnessed by the Dent Construction project manager and other traffic technicians.
[9] On October 11, 2021, ATS’s Vice President emailed another ATS staff to draft a “written verbal warning” [the warning letter]to Mx. Rogers. The email stated that Dent Construction had asked ATS to issue an official warning to Mx. Rogers. The email stated that the warning letter should include the following:
a. The October 7, 2021, incident with the manager during which Mx. Rogers was insubordinate to the manager.
b. Mx. Rogers had previously been warned by Dent Construction for not properly taking down the sites under their control or leaving a site messy.
c. Mx. Rogers had gone outside the Dent Construction and ATS chain of command with their workplace issues or concerns.
[10] On October 13, 2021, the ATS staff provided ATS’s Vice President with the warning letter. The letter stated that ATS had previously addressed its concerns regarding Mx. Rogers’ work performance and that the incident had been escalated to Dent Construction management. It also stated that the incident risked negatively impacting ATS’ relationship with Dent Construction, which was unacceptable.
[11] The warning letter was not issued to Mx. Rogers. Instead, Mx. Rogers and Ms. Guay’s employments were terminated in October 2021. On October 15, 2021, Dent Construction terminated Ms. Guay’s employment. Mx. Rogers says Ms. Guay’s termination was due to conflicts between Ms. Guay and the manager over Ms. Guay’s request for workplace accommodation. Two days later, on October 17, 2021, Mx. Rogers was notified by telephone call that their employment with ATS had been terminated. They were issued a written termination letter on October 19, 2021.
III DECISION
A. ATS’ application
[12] ATS applies to dismiss Mx. Rogers’ complaint on the grounds that it has no reasonable prospect of success: s. 27(1)(c).
[13] Section 27(1)(c) is part of the Tribunal’s gate-keeping function. It allows the Tribunal to dismiss complaints that do not warrant the time and expense of a hearing.
[14] The Tribunal does not make findings of fact under s. 27(1)(c). Instead, the Tribunal looks at the evidence to decide whether “there is no reasonable prospect that findings of fact that would support the complaint could be made on a balance of probabilities after a full hearing of the evidence”: Berezoutskaia v. British Columbia (Human Rights Tribunal), 2006 BCCA 95 at para. 22, leave to appeal ref’d [2006] SCCA No. 171. The Tribunal must base its decision on the materials filed by the parties, and not on speculation about what evidence may be filed at the hearing: University of British Columbia v. Chan,2013 BCSC 942 at para. 77.
[15] A dismissal application is not the same as a hearing: Lord v. Fraser Health Authority,2021 BCSC 2176 at para. 20; SEPQA v. Canadian Human Rights Commission,[1989] 2 SCR 879 at 899. The threshold to advance a complaint to a hearing is low. In a dismissal application, a complainant does not have to prove their complaint or show the Tribunal all the evidence they may introduce at a hearing. They only have to show that the evidence takes their complaint out of the realm of conjecture: Workers’ Compensation Appeal Tribunal v. Hill, 2011 BCCA 49 [Hill] at para. 27.
[16] 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.
[17] To prove their complaint at a hearing, Mx. Rogers will have to prove that they have a characteristic protected by the Code, they were adversely impacted in employment, and their protected characteristic was a factor in the adverse impact: Moore v. British Columbia (Education), 2012 SCC 61 at para. 33 [Moore]. If they did that, the burden would shift to ATS to justify the impact as a bona fide reasonable justification. If the impact is justified, there is no discrimination.
[18] ATS argues that it had no knowledge of Mx. Rogers’ family status or Ms. Guay’s employment status and that it terminated Mx. Rogers’ employment due to the performance concerns and the incident between Mx. Rogers and the manager. It also argues that Mx. Rogers has no reasonable prospect of proving a connection between any adverse impact and their family status because it terminated their employment due to the performance concerns and the incident. I consider each argument in turn below.
[19] For the following reasons, I am not persuaded Mx. Rogers has no reasonable prospect of proving a connection between their family status and the termination of their employment.
[20] On the first element of Moore, ATS disputes that Mx. Rogers has no reasonable prosect of establishing the protected characteristic of family status. It argues that it had no knowledge of Ms. Guay’s employment status and Mx. Rogers has provided no evidence to support that they are a member of a protected class. I am unable to accept this argument here because there is no question that Ms. Guay is Mx. Roger’s mother. That relationship is protected under the Code: Students (by Parent) v. Daycare Provider (No.3), 2025 BCHRT 84 at para 59; B. v. Ontario (Human Rights Commission), 2002 SCC 66 at para. 45; Desjardins obo the Child v. Little Owl Academy and others, 2017 BCHRT 238 at para. 30. On this basis, I am not satisfied that Mx. Rogers has no reasonable prospect of establishing that she has the protected characteristic of family status in respect of her relationship to Ms. Guay.
[21] On the second element, adverse impact, ATS does not dispute that Mx. Rogers experienced an adverse impact. Mx. Rogers’ employment was terminated. Termination of employment constitutes an adverse impact within the meaning of s. 13 of the Code: Rabinovich v. Chemainus Inn Management Services Inc. (No. 2), 2024 BCHRT 302 (CanLII), at para 34; Eva obo others v. Spruce Hill Resort and another, 2018 BCHRT 238 at para. 92; Suen v. Envirocon Environmental Services (No. 2), 2017 BCHRT 226 at para. 35
[22] Regarding nexus, ATS argues that Mx. Rogers has no reasonable prospect of proving that the termination of their employment was connected to their family status. It argues that it terminated their employment because it had concerns over Mx. Rogers’ work performance and further, their employment was impacted by the incident with the manager. Mx. Rogers’ evidence is that the traffic control industry is a small one and their relationship with their mother was well known in the workplace and known to employees and supervisors at both ATS and Dent Construction. Mx. Rogers names employees and supervisors of both Dent Construction and ATS (including the manager), whom they say were aware that Ms. Guay was their mother. Therefore, Mx. Rogers argues that ATS terminated their employment because Dent Construction terminated Ms. Guay’s employment and that because the timing of the termination of their employment coincided with this, the Tribunal could draw an inference that they were connected. For the reasons that follow, I am not persuaded by ATS’s arguments.
[23] First, regarding the performance concerns, on August 12, 2021, ATS emailed various ATS employees including Mx. Rogers’ supervisor regarding unsafe flagging practices by Mx. Rogers and the supervisor addressed it with Mx. Rogers. On the materials before me, ATS did not take any further steps regarding the unsafe flagging practices.
[24] Second, after the incident in October 2021 between Mx. Rogers and the manager, while ATS says that the incident with the manager posed a risk of negatively impacting ATS’ relationship with Dent Construction and requested that Mx. Rogers be issued the warning letter, it instead terminated their employment. There is a gap in the evidence here as ATS does not explain why it changed its disciplinary plan from issuing a warning letter to terminating Mx. Rogers’ employment. The evidence I do have is that the termination occurred two days after Dent Construction terminated Ms. Guay’s employment. To the timing point, concerns about Mx. Rogers’ unsafe flagging practices pre-existed the incident with the manager by two months and on the evidence, the unsafe flagging practice had been addressed. ATS does not say whether it provided the warning letter to Mx. Rogers and Mx. Rogers’ evidence is that ATS did not.
[25] Third, the reason for the termination of Mx. Rogers’ employment remains disputed and a fundamental dispute between the parties which I cannot resolve based on the materials before me: Francescutti at para 67. ATS does not explain why termination became necessary two days after Ms. Guys’s employment was terminated when a warning letter had previously been deemed sufficient discipline. While ATS argues that Mx. Rogers’ employment contract was for a short service, it does not say the duration of the contract or when it was scheduled to end making it difficult to assess whether the termination was due to contract expiry rather than disciplinary reasons. As stated above, I can only decide this application based on the materials filed by the parties and not on speculation about what evidence may be filed at the hearing: Chan at para. 77. The gap in evidence as to why ATS decided to terminate Mx. Rogers rather than issue the warning letter is one that leaves open an inference that Ms. Guay’s termination, coupled with the timing questions outlined above, was a factor.
[26] For the reasons above, ATD has not persuaded me that there is no reasonable prospect that the complaint could succeed. In the meantime, Mx. Rogers has met the low threshold of taking their allegations beyond mere speculation: Berezoutskaia at paras. 24-26
[27] ATS does not argue that it is reasonably certain to establish a justification at a hearing in its dismissal application under s. 27(1)(c), so I have not considered it in this decision.
[28] I deny ATS’ application under s. 27(1)(c).
[29] Next, I turn to Dent Construction’s application.
B. Dent Construction’s application
[30] I set out above the law applicable to the Tribunal’s gate-keeping function under s. 27(1)(c), so I do not repeat it here. I apply that law to Dent Construction’s arguments under s.27(1)(c) below.
[31] Dent Construction argues that Mx. Rogers has no reasonable prospect of proving their complaint against Dent Construction. It says that it was not involved in the decision to terminate Mx. Rogers and it was not aware that ATS had terminated Mx. Rogers’ employment. It says that as ATS’s client rather than Mx. Rogers’ employer, it had no control over ATS’s employment decisions and cannot be held responsible for the termination. Dent Construction also argues that it did not and could not have taken any steps against Mx. Rogers because of their familial relationship with Ms. Guay because it was not aware that Mx. Rogers was related to any Dent Construction employee. I will take each of these arguments in turn.
[32] First, regarding whether Dent Construction was involved in the decision to terminate Mx. Rogers’ employment, the issue is whether Dent Construction is reasonably certain to establish that ATS was not acting as its agent at the relevant time, which would make Dent Construction responsible for ATS’s acts. Mx. Rogers disputes Dent Construction’s claim of non-involvement in the termination of their employment. Mx Rogers also argues that their work was supervised by the manager who also had conflicts with their mother over their mother’s request for workplace accommodation as set out above.
[33] This principle is codified in s. 44(2) of the Code, which provides that “an act or thing done or omitted by an employee, officer, director, official or agent of any person within the scope of the person’s authority is deemed to be an act or thing done or omitted by that person”: s. 44(2). As the Tribunal has explained, s. 44(2) fulfills the purpose of the Code by “ensuring that corporate and institutional entities are held responsible for the acts and omissions of their employees and the other listed representatives”: Daley v. B.C. (Ministry of Health) and others, 2006 BCHRT 341 at para. 48. Further, a respondent need not be an employer to attract liability in a s. 13 complaint, provided the impugned conduct has a sufficient nexus to the employment context: British Columbia Human Rights Tribunal v. Schrenk, 2017 SCC 62, paras. 36 and 67. This is significant because if ATS was acting as Dent Construction’s agent, then Dent Construction would be responsible for ATS’s discriminatory conduct under the Code. However, there must still be evidence which can lead to a reasonable inference that the complainant suffered an adverse impact because of a conduct by a person that was related in whole or in part to a protected characteristic, in this case family status.
[34] On the evidence, Dent Construction contracted ATS to provide traffic management services for the project and as part of that relationship, had the authority to remove personnel from the project, and provided some direction over disciplinary matters including in this case, requesting that ATS issue Mx. Rogers a warning letter. The onus is on Dent Construction to persuade the Tribunal that ATS was not its agent within the meaning of s. 44(2) of the Code. It has not done so. Although Dent Construction asserted that it was not involved in ATS’s decision to terminate Mx. Rogers’ employment, the extent or limits of Dent Construction’s relationship with ATS is unclear on the materials before me. Therefore, I am not persuaded that Dent Construction is reasonably certain to prove ATS was not acting as its agent in terminating Mx. Rogers’ employment, particularly given Dent Construction’s involvement in the disciplinary process for Mx. Rogers following the incident with the manager. At the hearing, it will be up to Dent Construction to make submissions on the merits of the application of s. 44 to its relationship with ATS.
[35] Second, regarding the timing of the termination of Ms. Guay’s and then Mx. Rogers’ employments, Dent Construction argues that it was not aware that Mx. Rogers was related to any Dent Construction employee and that it did not have control over the termination Mx. Rogers’ employment.
[36] I pause here to note that Dent Construction argues that Mx. Rogers’ evidence that employees and supervisors at both ATS and Dent Construction knew Ms. Guay was their mother amount to hearsay. It disputes that Dent employees were aware of the familial relationship between Mx. Rogers and Ms. Guay and asserts that Mx. Rogers’ evidence is directly counter to the evidence of two of its employees who have provided affidavits in this application. To the extent Dent Construction argues this evidence should not be considered, this Tribunal has discretion to admit evidence that would not be admissible in court if it is necessary and appropriate: Code, s. 27.2. In the context of affidavits submitted in an application to dismiss a complaint, the Tribunal has observed that “affidavits will only be as useful as the probative value of the evidence contained in them”: Becker v. Cariboo Chevrolet Oldsmobile Pontiac Buick GMC Ltd. (No. 2), 2004 BCHRT 80 at para. 18, overturned in part on other grounds in 2006 BCSC 43.
[37] The Tribunal has recognized that, “where a deponent swears to hearsay, they should – at a minimum – identify its source”: Batson-Dottin v. Forensic Psychiatric Hospital (No. 2), 2018 BCHRT 246, at para 22; Becker, at para 26. In their sworn affidavit, Mx. Rogers identified the employees at both Dent Construction and ATS whom they say knew that Ms. Guay was their mother including a Dent Construction employee who provided an affidavit in this application. I disagree with Dent Construction that Mx. Rogers is required, in this application, to provide evidence from those they say were aware of their family relationship to Ms. Guay. They only have to show that the evidence takes their complaint out of the realm of conjecture: Hill at para. 27. On this basis, I am satisfied that this evidence is sufficiently reliable to be useful, and the value outweighs its prejudicial effect: Lam v. Chiu, 2012 BCSC 440 at paras. 25-30; Parsons v. A&B Tool Rentals and another, 2018 BCHRT 154.
[38] I have considered the parties’ arguments regarding whether Dent Construction employees knew of the family relationship between Mx. Rogers and Ms. Guay and the timing of the termination of those employments. I accept, on the low threshold, that the temporal relationship between the termination of Ms. Guay’s and their employment could support a reasonable inference at a hearing that their family status was a factor in the termination of their employment and takes the allegation of nexus out of the realm of conjecture.
[39] The Tribunal may draw such inferences based on the timing of an employee’s termination: Parry v. Vanwest College, 2005 BCHRT 310, at para 63. Ms. Guay’s employment was terminated by Dent Construction two days before Mx. Rogers was terminated by ATS. Mx. Rogers argues that when, following the incident on October 7, 2021, Dent Construction requested that ATS issue an official warning to Mx. Rogers, Dent Construction demonstrated their exercise of control over Mx. Rogers’ employment up to the termination of their employment. Mx. Rogers argues that it is beyond conjecture, that when Dent Construction terminated their mother’s employment, it also directed ATS to terminate Mx. Rogers’ employment. They say that the timing of the terminations combined with the manager’s authority over personnel decisions and conflicts between the manager and their mother, supports the inference that Mx. Rogers’ family status was a factor in the termination of their employment.
[40] At this stage, there are fundamental disagreements between the parties which I cannot decide based on the affidavit evidence before me:
a. The parties disagree about whether Dent Construction knew of the familial relationship between Mx. Rogers and Ms. Guay.
b. The parties disagree about the extent of control or direction Dent Construction had over ATS’s decision regarding discipline and termination of its employees including the termination of Mx. Rogers’ employment.
[41] These are fundamental disagreements that can only be resolved at an evidentiary hearing where sworn evidence is received and subjected to cross-examination. As mentioned above, where there are foundational or key issues of credibility, the complaint must go to a hearing: Francescutti at para 67. For that reason, cases like this one, which appear to turn on disputed facts, are not well suited for a dismissal application under s. 27(1)(c): U v. S and others, 2018 BCHRT 88 at para. 46.
[42] Finally, I am not satisfied that Dent Construction is reasonably certain to prove that it did not require ATS to terminate Mx. Rogers’ employment following its termination of Ms. Guay’s employment at Dent Construction. On the materials before me, Dent Construction was already involved in Mx. Rogers’ employment by requiring ATS to provide them with a warning letter following the incident with the manager.
[43] Based on the evidence before me, I am not persuaded by Dent Construction’s argument that Mx. Rogers has no reasonable prospect of proving it was not responsible for the termination of their employment or that their family status was a factor in the termination.
[44] I deny Dent Construction’s application under s. 27(1)(c).
IV CONCLUSION
[45] Both Respondents’ applications to dismiss the complaint under s. 27(1)(c) are denied. The complaint will proceed to hearing.
Ijeamaka Anika
Tribunal Member