Zheng v. Kimberlite (Canada) International Business Inc and another, 2025 BCHRT 260
Date Issued: October 21, 2025
Files: CS-002094
Indexed as: Zheng v. Kimberlite (Canada) International Business Inc and another, 2025 BCHRT 260
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:
Li Zheng
COMPLAINANT
AND:
Kimberlite (Canada) International Business Inc. and Andes Yuen
RESPONDENTS
REASONS FOR DECISION
Tribunal Member: Ijeamaka Anika
On their own behalf: Li Zheng
For the Respondents: No appearance
Date of Hearing: March 26, 2025
Location of Hearing: Via videoconference
I INTRODUCTION
[1] Li Zheng worked as a sales associate at a jewellery store owned and operated by Kimberlite (Canada) International Business Inc [Kimberlite]. Andes Yuen was the store manager. In this decision, I will refer to Kimberlite and Mr. Yuen as the Respondents. Ms. Zheng alleges that during her employment, the Respondents discriminated against her based on her physical disability contrary to s. 13 of the Human Rights Code. She says the Respondents failed to accommodate her breathing difficulties that were exacerbated by poor indoor air quality in the store. She says that when she complained about the air quality and requested accommodation, she was sent home, and her employment was ultimately terminated.
[2] The Respondents have not participated in the proceedings at any point despite having been given notice of the complaint: Tribunal Rules of Practice and Procedure [Rules], Rules 8 and 13. For the reasons that follow, I am satisfied that the Respondents had notice of the complaint. In March 2021, the Tribunal notified the parties that the complaint would be proceeding to a hearing. In April 2021, the individual respondent, Mr. Yuen, responded to the Tribunal with enquiries regarding the Tribunal’s process and confirmed his availability for an Early Settlement Meeting. In October 2021, Mr. Yuen advised the Tribunal that he represented Kimberlite. In July 2022, Mr. Yuen notified the Tribunal that Kimberlite’s head office in China was closed, and he was unable to reach anyone there. The Respondents did not file a response to the complaint, and the Tribunal did not receive any further communications from Mr. Yuen. On November 29, 2022, Ms. Zheng notified the Tribunal that it appeared that Kimberlite had closed their business in Vancouver as she saw the store was closed with signs for leasing the unit. The Tribunal informed Ms. Zheng that the business closure did not impact her complaint proceeding but could impact her ability to obtain a remedy from the Respondents if a finding of discrimination was made following the hearing. The Tribunal has not received any further communication from the Respondents but sent all communication to the parties by email and registered mail to the Respondents up until the hearing. The emails to the Respondents were undeliverable and the Tribunal received a trace sheet confirming that the registered mail could not be delivered.
[3] The Respondents did not appear at the hearing despite having been given notice. As I was satisfied that they had notice of the complaint and hearing for the reasons outlined above, the hearing proceeded without them: Rule 32.
[4] For the reasons below, I find that Ms. Zheng’s disability was connected to the termination of her employment. Consequently, Ms. Zheng has proven the Respondents discriminated against her in employment in violation of s. 13 of the Human Rights Code. As a result, Ms. Zheng is entitled to compensation for injury to her dignity, feelings and self-respect, and lost wages.
II BACKGROUND
[5] Kimberlite owned and operated a small jewellery retail store in Vancouver. Its staff is made up of a manager (Mr. Yuen), three full-time sales associates, one office administrator and one part-time sales associate.
[6] Ms. Zheng began working as a full-time sales associate for Kimberlite on July 24, 2019. Her employment letter indicated a three-month probation period. She worked five days a week from 10:30 a.m. to 6:30 p.m. at the store.
[7] Prior to commencing work at Kimberlite, Ms. Zheng had been diagnosed with various conditions following a motor vehicle accident. These included breathing-related issues.
[8] In September 2019, Ms. Zheng developed breathing difficulties. She testified that she first noticed the breathing difficulties when she drove her car. She said she smelled gas which caused her to experience the breathing difficulties and coughing. Ms. Zheng testified that she bought the car in January 2019 and drove it for five months before her symptoms started.
[9] Between December 2019 and January 2020, Ms. Zheng repeatedly raised concerns about the air quality in the store with Mr. Yuen. She testified that the sales floor felt stuffy and the ventilation in the store was poor, which triggered her breathing symptoms. She asked Mr. Yuen to open the front door for ventilation and for the thermostat settings to be adjusted. Mr. Yuen did not agree to Ms. Zheng’s requests. On January 23, 2020, Ms. Zheng saw Mr. Yuen had increased the temperature on the thermostat to 22 degrees which made Ms. Zheng’s breathing issues worse. She subsequently reduced the temperature which made her feel better. The same day, Mr. Yuen called a staff meeting and during the meeting, told Ms. Zhen that no employee had the privilege to control the temperature. Ms. Zheng testified that although Mr. Yuen did not refer to her by name, she was embarrassed at the meeting because she was the only one who had complained about the air quality, and he was pointing at her while addressing the temperature issue.
[10] Ms. Zheng’s last day of work was on January 29, 2020. When she came to work on that day, Ms. Zheng experienced significant breathing difficulties when the fan was set to “ON” rather than “AUTO” mode. She immediately began experiencing shortness of breath and when she complaint to Mr. Yuen, he told her there was nothing he could do about it and sent her home shortly after. On January 30, 2020, Mr. Yuen emailed Ms. Zheng that he needed to find an appropriate service provider to deal with the store’s HVAC.
[11] The parties communicated in February 2020 regarding the air quality issue. The Respondents hired a HVAC contractor and discussed air quality testing. On February 14, 2020, Mr. Yuen emailed Ms. Zheng that a contractor had done maintenance on the HVAC, and the Respondents were waiting for one more quote to get the testing done. Later the same day, Ms. Zheng requested the air quality reports from the Respondents. When she did not receive a response from Mr. Yuen, Ms. Zheng sent another email on February 18, 2020, again asking for the air quality report. The Respondents did not respond to the email. On February 27, 2020, Ms. Zheng filed a complaint with WorkSafeBC about the poor air quality at her workplace. She says she reported to WorkSafeBC because the Respondents were unwilling to do anything about the air quality issue.
[12] Emails from Mr. Yuen afterwards did not refer to the air quality issue but the parties communicated regarding providing Ms. Zheng with a record of her employment.
[13] On December 17, 2020, nearly eleven months after Ms. Zheng had stopped working, the Respondents sent her a letter stating that her one-year employment contract had expired on July 23, 2020, and would not be renewed. Ms. Zheng testified that she was shocked to receive this termination notice as she did not realize her employment was for a limited period or that there was any risk to her job, and she had expected to return to work once the air quality issues were resolved.
III WITNESSES AND CREDIBILITY
[14] I heard this matter in one day. Ms. Zheng testified at the hearing. She did not call any witnesses. However, she submitted documentary evidence including emails, text messages, medical records, tax and benefit documents, and WorkSafeBC correspondence.
[15] As the Respondents did not participate in the hearing, I must assess Ms. Zheng’s credibility carefully. A credibility assessment involves assessing both the trustworthiness of a witness’s testimony based on their veracity or sincerity, and the accuracy of the evidence they provide.
[16] I found Ms. Zheng to be a credible witness generally. She gave her evidence in a straightforward manner and was consistent in her account of events. There were some areas where Ms. Zheng’s recollection was less precise, particularly regarding specific dates. However, this is understandable given the passage of time and difficulties she was experiencing at the time. The core of her evidence – that she developed breathing issues, requested accommodation at work, and was ultimately terminated – remained consistent and was corroborated by documentary evidence. Although the Respondents did not participate in the hearing, Ms. Zheng still bore the burden of proving the facts to support her complaint. She did this through her own oral evidence as well as substantial documentary evidence including contemporaneous written communications between the parties which corroborates her account. She also submitted medical documentation confirming her diagnosis and symptoms, and correspondence with WorkSafeBC and its decision that Ms. Zheng’s breathing issues were not caused by the store environment. Finally, Ms. Zheng provided the letter terminating her employment. I have found all this evidence to be consistent and reliable and have relied on it to make my decision.
IV ISSUES AND LAW
[17] To succeed in her case, Ms. Zheng must prove that (1) she had a disability at the relevant time, (2) she experienced an adverse impact in employment, and (3) her disability was a factor in the adverse impact: Moore v. BC (Education), 2012 SCC 61 at para. 33.
[18] As noted above, the Respondents did not participate in the hearing of this complaint. However, Ms. Zheng still bears the burden of proving the facts to support her complaint. My findings of fact are based on the evidence she presented in this hearing. These findings are made on the balance of probabilities, meaning I have found these facts to be more likely than not: FH v. MacDougall, 2008 SCC 53.
[19] Given that I find that Ms. Zheng established the three elements of her case, I also considered whether the Respondents met its duty to accommodate Ms. Zheng. I found that it did not, and my reasons are below.
A. Did Ms. Zheng have a disability within the meaning of the Code?
[20] The first issue I need to decide is whether Ms. Zheng had a disability within the meaning of the Code.
[21] The Code does not define “physical disability”. The Tribunal interprets the term liberally to achieve the purposes of the Code: British Columbia Human Rights Tribunal v. Schrenk, 2017 SCC 62 at para. 31. The purposes of the Code are to remove barriers that people face in certain areas of social life because of their disabilities.
[22] To decide whether a condition is a “disability”, the Tribunal generally considers the degree of impairment and any functional limitations, and any social construction of disability: Morris v. BC Rail, 2003 BCHRT 14 at para. 214. It considers factors like “whether the condition entails a certain measure of severity, permanence and persistence”: Viswanathapuram v. Canadian Alliance of Physiotherapy Regulators, 2017 BCHRT 29 at para. 40. “Disability” does not capture every medical problem. Specifically, it does not include conditions that are temporary and treatable, like a cold or flu, or a broken bone: Morris at para. 209. The Supreme Court of Canada explains that these types of conditions are excluded because “there is not normally a negative bias against these kinds of characteristics or ailments”: Québec (Commission des droits de la personne et des droits de la jeunesse) v. Boisbriand (City), 2000 SCC 27 at para. 82.
[23] Breathing difficulties may be a disability within the meaning of the Code. In December 2019, Ms. Zheng was diagnosed with asthma or asthma-like symptoms. She experienced persistent breathing difficulties including throat tightening, shortness of breath, and coughing. These symptoms created functional limitations in her ability to work in certain environmental conditions and required medical treatment. As stated earlier, Ms. Zheng also had pre-existing disabilities prior to starting work at Kimberlite.
[24] The fact that there may be some uncertainty about whether Ms. Zheng had asthma or asthma-like symptoms does not change my findings. Her condition was permanent and could generate a functional impairment in the event of an exposure, which can – if not properly accommodated – present a barrier to Ms. Zheng’s equitable participation in the workplace.
[25] In this case, I find that Ms. Zheng’s breathing difficulties amounted to a disability within the meaning of the Code.
B. Did Ms. Zheng experience an adverse impact in her employment?
[26] I find that Ms. Zheng experienced several adverse impacts in her employment: she was sent home from work on January 29, 2020, losing work time; she was unable to work from late January 2020 onward due to the workplace environment; her employment was terminated on December 17, 2020, although the Respondents told her the termination took effect from July 23, 2020.
[27] The Tribunal has accepted, and I am also willing to accept, that when a person’s employment is terminated, their loss of that employment is, in itself, an adverse impact regarding their employment: see Rabinovich v. Chemainus Inn Management Services Inc. (No. 2), 2024 BCHRT 302, 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. The fact that the Respondents characterized the termination as a non-renewal of contract does not change its nature because Ms. Zheng ultimately lost her job and the contract of her employment did not state that the employment was for a one-year period. Therefore, I find that Ms. Zheng experienced adverse impact regarding her employment.
C. Is there a connection between Ms. Zheng’s disability and the adverse impact?
[28] To establish discrimination, a person’s protected characteristic must be a factor in the adverse impact they have experienced: Moore, at para. 33.
[29] On balance, I am satisfied that Ms. Zheng’s disability was a factor in the adverse impact she experienced.
[30] First, Ms. Zheng was sent home on January 29, 2020, because she could not work with the fan settings that triggered her breathing difficulties. Second, she did not return to work because the air quality in the workplace exacerbated her respiratory symptoms. Third, the termination letter came after months of Ms. Zheng being unable to work due to the unresolved air quality issues. Therefore, Ms. Zheng’s disability was a factor in the adverse impact she experienced in her employment.
[31] The next step would be for me to consider whether the Respondents met their duty to accommodate Ms. Zheng’s disability. However, given that the Respondents did not participate in the Tribunal’s process, they did not put forward a justification for their conduct. Therefore, the inquiry ends here on the merits of the case.
D. Are both the institutional and individual respondents culpable?
[32] I note that Ms. Zheng filed her complaint against both an institutional and an individual respondent. Notwithstanding strong policy reasons favouring complaints against individuals in some cases, the Tribunal has recognized that, in some circumstances, it does not further the purpose of the Code to proceed against an individual respondent. This is because 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 v. British Columbia (Ministry of Health), 2006 BCHRT 341, para. 54. Employers and institutional respondents are, in any event, liable for the acts of their agents and are responsible for any remedy ordered by the Tribunal: Code, s. 44(2); Robichaud v. Canada, 1987 CanLII 73 (SCC), [1987] 2 SCR 84 at para. 12. In those situations, the remedial objectives of the Code may be most fairly and efficiently fulfilled without holding individuals liable. The Tribunal will consider factors including whether the complaint names an institutional employer as a respondent, that institutional respondent has the capacity to fulfill any remedies that the Tribunal might order; and it has acknowledged the acts the individual as its own.
[33] In this case, neither Kimberlite nor Mr. Yuen participated in the hearing of this complaint. As a result, I have no submissions on whether the complaint should be dismissed against Mr. Yuen. I have therefore considered whether Ms. Zheng’s evidence supports a finding of discrimination against each Respondent.
[34] In her evidence, as I have outlined above, Ms. Zheng identified Mr. Yuen as informing her of the decision to terminate her employment. I have found the termination of Ms. Zheng’s employment was discriminatory. Mr. Yuen emailed Ms. Zheng notifying her of the termination of her employment and I have no evidence to suggest that Mr. Yuen was not involved in that decision making. In the absence of evidence to the contrary, am satisfied that on a balance of probabilities, the evidence supports a finding that Mr. Yuen was involved in the decision making regarding the termination of Ms. Zheng’s employment. The evidence is also that he exercised control over the workplace and in particular was managing the air quality issue. As Kimberlite was Mr. Yuen’s employer, and employers are liable for the actions of the employee, particularly carried in the context of their employment: s. 44(2); Daley at para. 48. On this basis, I am satisfied that both respondents breached the Code.
E. Remedies
1. Cease the contravention
[35] Having found the Respondents discriminated against Ms. Zheng based on disability, contrary to s. 13 of the Code, I order the Respondents to cease and refrain from committing the same or similar discrimination, pursuant to s. 37(2)(a) of the Code.
2. Declaratory order
[36] Under s. 37(2)(b) of the Code, the Tribunal may make a declaratory order that the conduct complained of, or similar conduct, is contrary to the Code. In the circumstances of this case, I consider it appropriate to make such an order. I declare that the Respondents’ conduct in failing to accommodate Ms. Zheng’s disability and terminating her employment amounts to discrimination contrary to s. 13 of the Code.
3. Compensation – wage loss
[37] Section 37(2)(d)(ii) of the Code gives the Tribunal discretion to compensate a person for all, or a part, of any wages or salary lost because of discrimination. The purpose of compensation is to restore a complainant, to the extent possible, to the position they would have been in had the discrimination not occurred. There must be a causal connection between the loss claimed and the discriminatory conduct: Gichuru v. Law Society of British Columbia (No. 9), 2011 BCHRT 185 [Gichuru] at para. 298-303, upheld in 2014 BCCA 396. The Tribunal may award wage loss where the complainant had the ability to work but could not do so because of the employer’s failure to accommodate: Tozer v. British Columbia (Ministry of Transportation and Highways, Motor Vehicle Branch), 2000 BCHRT 3.
[38] Ms. Zheng seeks an award of $96,048.40 for lost wages. Of this figure, she is claiming $10,095 for the loss of dental coverage and regular dental cleaning. I consider this claim below, under the heading “medical expenses”. In this section, I consider Ms. Zheng’s claim for two years of lost wages, amounting to $85,953.40.
[39] I agree that Ms. Zheng is entitled to some lost wages in this case. However, I do not agree with the amount of Ms. Zheng’s claim for the following reasons.
[40] Ms. Zheng says that but for the discrimination, she was expecting to return to work once the Respondents addressed her workplace concerns and accommodated her. She argues that her wage loss should reflect what the difference between what she could have earned at Kimberlite and what she actually earned, up until the hearing of the complaint in March 2025.
[41] For two reasons, I am not persuaded to award Ms. Zheng two years of wage loss.
[42] First, I find that, as of November 8, 2021, Ms. Zheng had obtained alternate employment that paid her more than she would have earned at Kimberlite. At her new employment, Ms. Zheng earned $16, 335.65 between November 8, 2021, and March 5, 2022, making her weekly pay $1,002. This is more than the $842.64 she was earning weekly at Kimberlite, according to her record of employment. Given that Ms. Zheng’s pay at her new employment was more than what she earned at Kimberlite, I find that Ms. Zheng mitigated her loss by finding new employment, and that the wage loss flowing from the discrimination ended when she found this new employment.
[43] Second, and in any event, I find that Ms. Zheng would not have earned wages from Kimberlite after December 1, 2021. That is the date when she started receiving disability benefits and at which point, Ms. Zheng was disabled from working.
[44] I turn now to calculate the amount of wage loss to award Ms. Zheng for the period between her termination (January 30, 2020) and her new employment (November 8, 2021). This is a period of 92.6 weeks.
[45] The evidence from Ms. Zheng’s record of employment is that she earned $22,751.38 during the employment (July 4, 2019 – January 29, 2020). This is a period of 29.6 weeks. Therefore, Ms. Zheng’s average weekly earnings would be $842.64 ($22,751.38/27 weeks). Based on these average weekly earnings, Ms. Zheng’s total losses over the 92.6-week period is $78,028.46 ($842.64 x 92.6 weeks).
[46] Next, I consider what would be a fair, reasonable, and appropriate amount of compensation by exercising my discretion on a principled basis, considering the remedial purposes of the Code: Gichuru at para. 303.
[47] The Tribunal may reduce a wage loss award if a complainant has not reasonably mitigated their loss, or to account for other contingencies: Benton v. Richmond Plastics, 2020 BCHRT 82 at para.91. The Tribunal has also held that the requirement to take reasonable steps to mitigate losses does not apply while a complaint is pursuing an accommodation with her employer: Kerr v. Boehringer Ingelheim (Canada) (No. 4), 2009 BCHRT 196 at para. 679 – 680, aff’d Boehringer Ingelheim (Canada) Ltd./Ltee. v. Kerr, 2010 BCSC 427, aff’d 2011 BCCA 266. Ms. Zheng testified that she expected to return to work and was shocked when her employment was terminated. The burden lies on the Respondents to show Ms. Zheng failed to take reasonable steps after they terminated her employment and that alternative employment could have been found (sooner) if she had taken those steps: Okano v. Cathay Pacific Airways Limited, 2022 BCSC 881 at para. 23.
[48] Again, the Respondents did not participate in the hearing of the complaint, and I have no arguments in that regard. In any event, I also considered Ms. Zheng’s testimony that she started to look for alternative work while she waited for accommodation from the Respondents including freelancing opportunities to pay her bills but could not keep up due to her disability and decided to spend time recovering. Since the termination of her employment, Ms. Zheng started looking for new employment and eventually found a job in November 2021. She testified that her disability impacted her ability to keep up with the intensity of the job. In 2022, Ms. Zheng’s claim for Canada Pension Plan disability benefits for permanent disability was approved effective December 1, 2021. In these circumstances, I am satisfied that it is principled to award Ms. Zheng the full amount of her wage loss between January 30, 2020, and November 8, 2021, subject to one deduction.
[49] Ms. Zheng received two weeks of pay from the Employment Standards Branch process for pay in lieu of notice. I deduct $1,685.28 ($842.64 x 2) from Ms. Zheng’s wage loss claim because it has already been awarded to her in another forum.
[50] To the extent that Ms. Zheng received CERB or EI benefits between 2020 and 2021, CERB and EI benefits are not deductible from compensation awards: Champagne v. Synergy Day Spa and another (No. 2), 2025 BCHRT 174, at para 47, Yates v. Langley Moto Sport Centre Ltd., 2022 BCCA 398; Bayongan v. Shimmura and another, 2023 BCHRT 27 at para. 66.
[51] Based on the materials, I find that Ms. Zheng is entitled to lost wages from January 30, 2020 – November 8, 2021, in the amount of $76,343.18 ($78,028.46 – $1,685.28).
4. Compensation for injury to dignity, feelings, and self-respect
[52] Ms. Zheng seeks an award of $25,000 for injury to her dignity, feelings, and self-respect.
[53] Under s. 37(2)(d)(iii) of the Code, the Tribunal has the discretion to award compensation for injury to dignity. The purpose of these awards is compensatory, not punitive. Determining the amount of an injury to dignity award depends on the specific facts and circumstances in a given case. At the same time, for the purposes of consistency and fairness, it is often helpful to consider the range of awards made in similar cases.
[54] A violation of a person’s human rights is a violation of their dignity. The purpose of an injury to dignity award is to address this very harm: Nelson v. Goodberry Restaurant Group Ltd. dba Buono Osteria and others, 2021 BCHRT 137 at para. 33. At the same time, an award for compensation for injury to dignity is not automatic. There is a presumption that a breach of the Code will give rise to a compensable injury to a complainant’s dignity. Nonetheless, the Tribunal may decline to award such damages without evidence that the discrimination had an impact on the complainant: Ingenthron v. Overwaitea Food Group and Van Pelt (No. 2), 2006 BCHRT 556 at paras. 80-82. It is not necessary, however, for there to be evidence of a “medical impact”, for the Tribunal to award compensation for injury to dignity: Gichuru.
[55] Determining the amount of compensation for the impact of the discrimination is “highly contextual and fact-specific”: Gichuru at para. 256. Relevant factors the Tribunal generally considers are the nature of the discrimination, the complainant’s social context or vulnerability, and the effect on the complainant: Basic v. Esquimalt Denture Clinic and another, 2020 BCHRT 138 at para. 193; Gichuru at para. 260.
[56] Regarding the nature of the discrimination, the Tribunal has described termination of employment as the “ultimate employment-related consequence”: Nelson at para. 129. The Tribunal has recognized that loss of employment often warrants compensation at the high end of the range given the significance of employment to a person’s identity, self-worth, and dignity: Ms. K v. Deep Creek Store and another, 2021 BCHRT 158 at para. 131.
[57] The nature of the discrimination in this case is the termination of employment. I found that the Respondents did not take steps to accommodate Ms. Zheng, rather they sent her home when she could not work due to the conditions in the store and ultimately terminated her employment even though the accommodation she was seeking was simply to adjust the thermostat in the shop floor and ensure the store’s HVAC filters were clean. Further, Ms. Zheng also testified to the impact of the Respondents’ conduct before she was sent home. Mr. Yuen pointed at Ms. Zheng during a store meeting with other employees present while he informed all staff that employees did not have any privilege to control the store temperature. She felt embarrassed because, although he was speaking to employees generally, he was pointing at her, and no other employee had complained about the air quality.
[58] I also consider the time period of the discrimination. Ms. Zheng’s evidence is that the Respondents did not accommodate her over the period of 11 months during which she was ready to return to work had the Respondents accommodated her. Apart from emails in February 2020 where the Respondents stated they were seeking quotes from HVAC maintenance contractors and responding to WorkSafeBC’s requests for air quality testing, the Respondents did not respond to Ms. Zheng’s request for updates and reports regarding the store air quality testing. Further emails from the Respondents only addressed Ms. Zheng request for her record of employment and in December 2020, she was notified of the termination of her employment.
[59] Finally, I consider the effect of the discrimination on Ms. Zheng. She provided evidence of the impact upon her of the discrimination. Her testimony was that the manner of termination was “callous” and caused a significant impact on her illness and occurred shortly before Christmas. Ms. Zheng experienced anxiety, depression, could not sleep, she felt hopeless and desperate about her future, which all made her illness worse. She spent a significant time under medical care. While she was expecting to go back to work with the Respondents, she started freelancing for income because she had bills to pay. Ms. Zheng could not sustain the freelance job due to her disability, and she decided to spend her time recovering. After about 21 months, she put in more effort into finding another job. Ms. Zheng found a new job which was very intense and involved talking non-stop full-time. Approximately four months later, she had to quit that job due to her health condition – she could not keep up.
[60] Ms. Zheng refers me to two cases: Ford v. Peak Products Manufacturing and another (No. 3), 2010 BCHRT 155 and Morris v. ACL Services, 2012 BCHRT 6. In Ford, the Tribunal found that Ms. Ford’s employment was terminated when she was absent due to disability. She was referred to a psychiatrist and her employer did not inform her that she might lose her job. The Tribunal awarded Ms. Ford $25,000 as damages for injury to dignity. In Morris, the Tribunal awarded $10,000 for injury to dignity when the complainant’s employment was terminated due to his disability-related absence and his inability to return to work, even in an accommodated capacity.
[61] In other cases the where the Tribunal has found a discriminatory termination of employment, more recent awards have generally ranged from $10,000 to $30,000: Bayongan; Singh v. Dodd’s Furniture (No. 2), 2021 BCHRT 85 ($10,000); Banfield v. Strata Geodata Services Ltd., 2021 BCHRT 142 ($10,000); Loiselle v. Windward Software Inc. (No. 3), 2021 BCHRT 80 ($15,000); Cyncora v. Axton Inc., 2022 BCHRT 36 ($20,000); The Sales Associate v. Aurora Biomed Inc. and others (No. 3), 2021 BCHRT 5 ($20,000); Nelson ($30,000); and Benton v. Richmond Plastics, 2020 BCHRT 82 ($30,000). While none of these cases mirror the particular circumstances of this case, they provide a guiding range in cases of a discriminatory termination of employment.
[62] Considering the relevant factors, and specific circumstances of this case, including that Ms. Zheng was ready to return to work with accommodation and the manner of the termination of her employment which severely impacted Ms. Zheng, I exercise my discretion to award Ms. Zheng $20,000 as compensation for injury to her dignity, feelings, and self-respect.
5. Medical expenses
[63] Ms. Zheng is seeking $10,095 as compensation for loss of dental coverage and regular dental cleaning.
[64] Section 37(2)(d)(ii) empowers the Tribunal to make an order to compensate Ms. Zheng for expenses incurred by the Respondents’ discrimination. The purpose of such an order is to, as much as possible, place the complainant in the position they would have been in but for the discrimination: Gichuru at para. 388.
[65] Kimberlite provided Ms. Zheng with an extended health plan that included dental coverage. Although she did not provide a receipt for the dental work, Ms. Zheng submitted the quotation she received from her dental provider for the dental work which she needed at the time. She testified that she needed dental surgery in July 2020 and had planned to use her extended dental coverage to pay for the surgery. She did not schedule the surgery because she had lost her extended dental coverage, and she could not afford the surgery.
[66] The Tribunal has, in the past, ordered respondents to reimburse complainants for healthcare and dental expenses they personally paid for because of the loss of extended health or dental coverage: Datt v. McDonald’s Restaurants (No. 3), 2007 BCHRT 324 at paras. 277 – 279; Gaarden v. Fountain Tire and Ingram, 2008 BCHRT 402 at para. 75; Cardamone v. Crown West Steel Fabricators and Heuthorst (No. 2), 2005 BCHRT 369 at para. 216. In the cited cases, the complainants were seeking reimbursement for expenses incurred. In contrast, Ms. Zheng did not provide any evidence that she incurred medical expenses beyond a quotation for her planned dental surgery. On this basis, I do not award this claim.
6. Interest
[67] The Tribunal has the discretion to award interest on awards. An award of interest is part of the compensatory nature of the Tribunal’s awards, recognizing that but for the discrimination a complainant would have had use of the money now awarded. The interest places the complainant in the economic position they would have been in but for the discrimination: Vasil v. Mongovius and another (No. 3), 2009 BCHRT 117.
[68] I find it appropriate to order pre-judgment interest for wage loss and post-judgment interest on injury to dignity to fully compensate Ms. Zheng for the loss and injury. The interest is to be paid based on the rates set out in the Court Order Interest Act.
V CONCLUSION
[69] I find that the Respondents discriminated against Ms. Zheng in employment on the basis of her disability, in violation of s. 13 of the Code. I order as follows:
a. I order the Respondents to cease the contravention and refrain from committing the same or a similar contravention of the Code: s.37(2)(a).
b. I declare that the Respondents’ conduct, or similar conduct, was discrimination contrary to s. 13 of the Code: s. 37(2)(b).
c. I order the Respondents to pay Ms. Zheng $76,343.18 as compensation for lost wages because of discrimination: s. 37(2)(d)(ii) of the Code.
d. d. I order the Respondents to pay Zheng $20,000.00 as compensation for injury to dignity, feelings, and self-respect: s.37(2)(d)(iii) of the Code.
e. The Respondents are jointly and severally liable for all the amounts awarded.
f. I order the Respondents to pay Ms. Zheng pre-judgement interest on the wage loss award until paid in full, based on the rates set out in the Court Order Interest Act.
g. I order the Respondents to pay Ms. Zheng post-judgment interest on all awards until paid in full, based on the rates set out in the Court Order Interest Act.
Ijeamaka Anika
Tribunal Member