Khayfets v. Matrix Camps, Logistics & Aviation Management Inc, 2025 BCHRT 264
Date Issued: October 21, 2025
File: CS-005525
Indexed as: Khayfets v. Matrix Camps, Logistics & Aviation Management Inc, 2025 BCHRT 264
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:
Sheka Khayfets
COMPLAINANT
AND:
Matrix Camps, Logistics & Aviation Management Inc.
RESPONDENT
REASONS FOR DECISION
APPLICATION TO DISMISS A COMPLAINT
Section 27(1)(c)
Tribunal Member: Kathleen Smith
Counsel for the Complainant: Menachem Freedman
Counsel for the Respondent: Robert Sider, KC and Thelma Zindoga
I INTRODUCTION
[1] Sheka Khayfets identifies as a Black, Afro-Canadian, woman of Nigerian heritage. She worked as a cook and first aid attendant for Matrix Camps, Logistics & Aviation Management Inc. [Matrix]at a remote camp in northern British Columbia.
[2] Ms. Khayfets alleges that while working for Matrix, she experienced discrimination on the basis of race, colour, ancestry, and sex, contrary to s. 13 of the Code. Ms. Khayfets advances two specific allegations. First, that a picture with racist connotations was posted in the camp office and when she complained about it, Matrix management did not support her or address her feelings of discrimination. Second, the camp’s sick bay was moved into her tent instead of the male medic’s tent, which posed a threat to her safety and dignity as the only woman in the camp. The complaint initially contained another allegation which Ms. Khayfets withdrew in the course of this application, i.e. that the camp’s manager harassed her persistently.
[3] Matrix denies discriminating. It says the picture was not racially motivated but rather depicted a famous chimpanzee that its client had adopted as a type of mascot. Regarding the sick bay allegation, Matrix says that under its policies, a sick or injured male worker would never have been placed in Ms. Khayfets’ tent and notwithstanding the safety measures in its policies, it accommodated Ms. Khayfets’ request that her sleeping quarters not be used for sick bay purposes. Matrix also denies that the manager harassed Ms. Khayfets based on her protected characteristics or at all.
[4] Matrix applies to dismiss the complaint on the basis that it has no reasonable prospect of success at a hearing: Code, s. 27(1)(c). Ms. Khayfets opposes the application.
[5] For the following reasons, I grant the dismissal application in part. I dismiss the allegation that the Picture was posted intentionally to target Ms. Khayfets because it is too speculative and therefore has no reasonable prospect of success. The remainder of the allegations will proceed to a hearing.
[6] To make this decision, I have considered all the information filed by the parties. In these reasons, I only refer to what is necessary to explain my decision.
II BACKGROUND
[7] I provide this background information to put my decision in context. I make no findings of fact.
[8] Matrix specializes in remote camp management and logistics, including transportation, cafeteria and food services, and installation of custom mobile or permanent remote field camps of varying sizes.
[9] A Matrix recruiter [the Recruiter] hired Ms. Khayfets in June 2021, for the dual role of first cook and Occupational First Aid Attendant 3 [OFA 3] at a remote camp. At that time, Matrix provided logistics services to a mining company that was involved in exploration activities. In this decision, I refer to the mining company as the client. During Ms. Khayfets’ employment, the Camp Manager oversaw the camp. He no longer works for Matrix. Ms. Khayfets’ direct supervisor was the Catering and First Aid Coordinator [Supervisor].
[10] Matrix provided affidavits from the Recruiter, the Camp Manager, and its current Human Resources [HR] Director. The current HR Director started in 2023, long after Ms. Khayfets left Matrix. Matrix says that it could not provide an affidavit from the Supervisor because she passed away.
[11] Ms. Khayfets also provided an affidavit. She says that when she arrived at the camp on July 6, 2021, she realized that she was the only person of colour, and, after about a day, the only woman. Ms. Khayfets stayed at the camp until July 27, 2021. Below, I set out the details of her complaint allegations and Matrix’s response.
A. The Picture Allegations
[12] In the complaint, Ms. Khayfets alleges that the Camp Manager discriminated against her by failing to remove the picture of a chimpanzee in a cage [the Picture] that was tacked up outside his office. She provides more details in her response to the dismissal application. Ms. Khayfets says that she spoke to the Supervisor and the Recruiter about the Picture but nobody from Matrix talked to her about how the Picture made her feel unsafe as a Black woman, or about what steps were or would be taken to address the issue. I also understand that Ms. Khayfets alleges that, despite raising her concerns about the racial connotations of the Picture, it remained posted in the camp office until she was directed to take down when she was leaving the camp at the end of her three-week rotation.
[13] Ms. Khayfets says that soon after she arrived at camp, she noticed the Picture. She says it made her uncomfortable because she is aware of the history of racial images of Black people depicted as monkeys and/or being in cages. She says she took a photograph of the Picture at the time. She provided a copy of the photograph with her affidavit.
[14] Ms. Khayfets says that she was concerned that someone had posted the Picture in anticipation of her arrival because camp workers are notified about newly arriving employees, and she was the only Black employee. Ms. Khayfets believes the Picture had been recently posted in the office for several reasons. In the complaint she says that it “appeared new” when she arrived and by the time she left the camp it was “dog-eared.” In response to the application, she provided the following additional details: it was printed on a fresh and clean piece of printer paper; and, she says that she asked an unnamed geologist about the Picture, and he said that it had been put up very recently.
[15] Ms. Khayfets says the Picture made her so uncomfortable that she avoided the camp office. She says this meant she had to ask the second cook to go to the camp office almost daily to get foodstuffs stored there.
[16] Ms. Khayfets does not provide details about what she discussed with the Supervisor and the Recruiter. What is clear, however, is that she was not satisfied with the response, including the fact that the Picture remained posted until she left the camp. She alleges that she was told to take it down and give it to the Supervisor when she left the camp, which she says she did. As I understand it, neither the Supervisor nor the Recruiter were physically present in the camp during the events described in the complaint.
[17] Matrix says it learned about the Picture when Ms. Khayfets reported her concerns about it a week or so after she arrived at the camp. Specifically, the Recruiter says that the Supervisor contacted her and told her that Ms. Khayfets had complained to her about the Picture and asked the Recruiter to contact Ms. Khayfets since the HR Manager was away on vacation.
[18] The Recruiter says that she called Ms. Khayfets but only caught parts of what Ms. Khayfets said during that conversation because it was a poor connection. The Recruiter says that she understood that Ms. Khayfets was upset about a photo of a chimpanzee in a cage displayed on the wall in one of the offices and felt it was directed at her as a form of racial discrimination. The Recruiter says that, based on her many years of experience of working in remote camps, she told Ms. Khayfets that the Picture was unlikely to have been posted for discriminatory purposes to target her. She says that she subsequently asked the HR Manager to follow up with the Camp Manager about the Picture. I pause to note that Matrix did not provide an affidavit from the HR Manager at the time. As I understand it, she left her role with Matrix, and a new HR Manager took over in August 2021.
[19] The Recruiter says that the HR Manager advised her that she had spoken to the Camp Manager and learned that the Picture belonged to and had been pinned to the office wall by the client long before it had engaged Matrix’s services and symbolized the client’s camp mascot. The Recruiter says that she relayed the information to Ms. Khayfets, and, in her view, it appeared to put Ms. Khayfets at ease.
[20] According to the Recruiter, she asked Ms. Khayfets to send her a photograph of the Picture but she was unable to because she was having issues with her phone. The Recruiter says that she asked another Matrix employee to send a photo, but she did not know how to, and instead they had a video call where the employee showed the Picture to the Recruiter. The Recruiter says she could see the Picture clearly and it appeared weathered and not like it had been recently pinned up. Matrix says it did not provide an affidavit from the employee who participated in the video call with the Recruiter because she has since died.
[21] In his affidavit, the Camp Manager says that he never paid attention to postings in the client’s office until Ms. Khayfets told him that there was an offensive picture there. The Camp Manager says that in response to Ms. Khayfets concern about an offensive picture, he went to take it down but could not find the Picture at the time. He says that he later learned that he did not see it, because it had been posted high on the wall.
[22] The Camp Manager left the camp for his “off rotation” a day or two later and says that when he returned to the camp, Ms. Khayfets and the Picture were gone. He further says that when he returned to camp, he revisited the issue of the Picture with the client. He says that the client advised him that it had depicted a famous chimpanzee named, “Travis the Chimp” and the client had adopted it as a “mascot of sorts.” The Camp Manager says the client clarified that the adoption of Travis the Chimp as a mascot was not racially motivated but was due to the notoriety of the chimpanzee. The Camp Manager also says the client advised him that the Picture had been posted in the office long before Matrix had been hired to manage the camp and had survived a flood. Matrix did not provide any affidavits from the client.
[23] Both parties provided photographs of the Picture. Matrix provided the following additional documents.
[24] A July 23, 2021, email from Ms. Khayfets to the Recruiter where she states:
Like I disclosed during our phone conversation on Wednesday, July 21st – my first day at Corey camp was exciting … until I walked into the office. I was supposed to sign some documents for orientation, identification, etc. As I looked up, I saw a picture on the wall right beside a whiteboard. It was of a chimpanzee in a cage. I looked away immediately. It was uncomfortable, unclear to me why it was there. It seemed to have been recently placed there…
A couple of days went by, and I noticed the picture was still in its place. I felt uneasy. I stopped going ito the office to get anything. I would send the second cook (redacted) or the night baker (redacted) to get dairy or produce from the fridge in the office.
[as written]
[25] Matrix also provided copies of a Wikipedia page and an article posted on the PETA website about “Travis the Chimpanzee.”
B. The Sick Bay Allegation
[26] Ms. Khayfets had the dual roles of cook and first aid attendant at the camp. The parties appear to use the terms first aid attendant and “medic” interchangeably in their submissions. Therefore, it is not clear to me if there is a distinction.
[27] Ms. Khayfets says that during her first night at camp, she shared her tent with a female geologist. When the geologist left the next day, she was the sole occupant of the tent.
[28] Ms. Khayfets says that a few days later, the second cook and baker moved all the first aid equipment from their tent into hers. She says this meant her tent became the “medic tent” for the camp. Ms. Khayfets says the equipment included a bed with a curtain where an ill or injured worker would be required to stay overnight. She says that she was told by Matrix that in the event a male co-worker was injured or ill they would have to sleep in her tent. Ms. Khayfets does not identify who she says made that statement.
[29] Ms. Khayfets says that the first aid equipment was moved back into the tent of the male second cook and baker after she complained about the possibility that a male coworker may be required to stay overnight in her tent. However, a few days later, she says that the Camp Manager ordered the equipment moved back into her tent because the other tent was “too dirty.” She says that for the remainder of her time at camp, her tent was the medic tent with the first aid equipment including the patient bed and this meant it could be used by any ill or injured male employee who needed to stay overnight. She provides pictures of the tent with the patient bed and curtain.
[30] Ms. Khayfets says that she remained very concerned about the possibility of sharing her tent with a male coworker in the remote camp. She says she complained about her concern to the Supervisor and asked to be transported out of the camp because she did not feel safe. She says the Supervisor referred her to the Recruiter. Ms. Khayfets says she then asked the Recruiter to transport her out of the camp. Matrix provided a copy of Ms. Khayfets’ July 23, 2021, email to the Recruiter where she writes, “Please, get me out of here now.”
[31] Matrix says that it assigned Ms. Khayfets’ tent for sick bay purposes in line with her employment agreement and duties as an OFA 3 first aid attendant. Matrix describes those duties as: being prepared to respond to any first aid emergency 24 hours a day, providing ongoing maintenance and inventory control of first aid room supplies, reporting first aid deficiencies and safety concerns to the safety manager, and ensuring that all first aid communication devices are charged and operational. Matrix also says that it was reasonable to store the sick bay supplies in her tent until needed since she was the only person using it. Matrix says the tents are large and designed for multi-functional use, and her sleeping quarters were to be divided from the sick bay area to store first aid supplies.
[32] Next, Matrix says that its policies provided reasonable and sufficient safety measures for Ms. Khayfets including a policy that men and women are not permitted to share sleeping quarters; and a policy that requires seriously injured workers to be transported out of camp on the same day of injury. Matrix says that although it was unlikely to come to pass, one of the two male cooks/medics would have been assigned to share sleeping quarters overnight with an injured male worker. Matrix further says that notwithstanding its policies, it agreed to relocate the sick bay area away from Ms. Khayfets’ sleeping quarters without delay after she communicated her concerns.
[33] Ms. Khayfets says that she wanted to leave camp before her scheduled departure on July 27, 2021, because she was terrified to remain there for reasons including the situation with the Picture and the sick bay.
[34] The Recruiter says that after the sick bay was removed from Ms. Khayfets’ tent, she and the HR Manager “thought everything was well” with Ms. Khayfets until she called the Recruiter on July 22, 2021. The Recruiter says that Ms. Khayfets wanted to file a formal complaint. Matrix provided a copy of the complaint that Ms. Khayfets emailed to the Recruiter on July 23, 2021. The complaint refers to the Picture, including that it made her feel uneasy, and that she stopped going to the office to get supplies from the fridge and instead sent the second cook. The complaint also refers to the Camp Manager deciding that her tent would be the first aid tent because it was cleaner than the male cooks’ tent. The email implies that the male cooks agreed to tidy up their tent and take the equipment back when she asked them to. The email ends with a request to get her “out now,” and the possibility of moving to a different camp.
[35] Matrix says that the camp was only accessible by air and that it had a strict flight policy which provided that rescheduling flights or making new flight reservations was reserved for emergencies. Matrix says that it took a week to arrange transport for Ms. Khayfets to leave the camp because her request did not arise from an emergency.
C. Alleged harassment
[36] In the complaint, Ms. Khayfets alleges that the Camp Manager harassed her persistently while they were both at the camp. Matrix addressed this allegation in its response to the complaint.
[37] In her response to the dismissal application, Ms. Khayfets states that “[w]hile the harassment from the Camp Manager was serious, it merely provides context for the complainant’s vulnerability and does not form part of her discrimination allegations.” I understand her statement to mean that she is withdrawing this allegation.
[38] In circumstances where Ms. Khayfets withdraws this allegation, I find it appropriate to formally dismiss it to ensure the parties and Tribunal have a clear understanding of the scope of the complaint. I dismiss the general harassment allegations in relation to the Camp Manager. The remaining allegations that I must consider in the dismissal application are the Picture and Sick Bay allegations.
III DECISION
[39] Matrix applies to dismiss the complaint on the basis that it has no reasonable prospect of success: Code, s. 27(1)(c). The onus is on Matrix to establish the basis for dismissal.
[40] 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.
[41] 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.
[42] 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.
[43] 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.
[44] To prove her complaint at a hearing, Ms. Khayfets would have to establish that she has a characteristic protected by the Code, she was adversely impacted in employment, and her protected characteristic was 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 Matrix to justify the impact. If the impact is justified, there is no discrimination.
A. Does the complaint have no reasonable prospect of success at a hearing?
[45] Matrix argues that the complaint has no reasonable prospect of success at a hearing because it is based on speculation and conjecture. Specifically, it argues that there is no evidence that is reasonably capable of showing a connection between the alleged discriminatory conduct and Ms. Khayfets’ protected characteristics.
[46] Ms. Khayfets disagrees and argues that she has met the low bar of taking her allegations out of the realm of conjecture.
[47] I begin with the Picture allegations.
B. The Picture Allegations
[48] As I understand it, Ms. Khayfets’ allegations concerning the Picture are threefold. First, she alleges that the posting was intentional and related to her arrival at the camp. Second, she alleges that the Picture had a negative impact on her as the only Black employee. Third, Ms. Khayfets alleges that Matrix’s response to her concerns was inadequate and did not account for the impact of seeing the Picture as a Black woman.
[49] Matrix argues that there is no evidentiary basis to support an inference of discrimination in relation to the Picture. Matrix asserts that the Picture is simply a photograph of a chimpanzee, and it would require speculation or conjecture to conclude that there is a connection between the Picture and Ms. Khayfets’ race, colour, or ancestry. Matrix also asserts that it informed Ms. Khayfets that the Picture belonged to the client, was of a famous chimpanzee, and had been posted long before the client engaged Matrix and was not intended to be discriminatory. According to Matrix, Ms. Khayfets appeared to accept and understand this information. The Recruiter specifically says that the information appeared to put Ms. Khayfets at ease.
[50] Ms. Khayfets argues that her evidence takes the Picture allegations out the realm of speculation and conjecture. She also asserts that the Picture allegations are highly context-sensitive and based in large part on contested facts which supports proceeding to a hearing.
[51] I begin with the allegation that the Picture was posted intentionally in advance of Ms. Khayfets’ arrival in the camp. Matrix says that the Picture belonged to the client and was posted by the client in the client’s office long before Ms. Khayfets was hired to work at the camp. In contrast, Ms. Khayfets asserts that the Picture was freshly printed and recently posted when she observed it in the camp office.
[52] For the following reasons, I am not satisfied that Ms. Khayfets has taken this allegation out of the realm of speculation.
[53] Ms. Khayfets’ belief that the Picture was posted in anticipation of her arrival is based on two main points. First, that workers at the camp knew she was arriving, and second, the appearance of the Picture.
[54] I begin with what other workers knew about Ms. Khayfets prior to her arrival. The full extent of Ms. Khayfets’ theory is set out in the complaint as follows:
I knew that the various workers at the Camp are notified of the new employees coming to Camp, and that this meant that the workers at the Camp had been notified prior to my arrival. I also knew that I was the only black employee at the Camp. This made me concerned that someone had posted the Picture in anticipation of my arrival and in response to a black worker coming to Camp.
[as written]
[55] Matrix does not address or dispute Ms. Khayfets assertion that camp workers are notified about the arrival of new workers. However, there is no evidence before me to indicate what information camp workers receive about new workers and when. Similarly, there is no evidence before me to suggest that information about newly arriving workers would include their personal characteristics such as their race or colour. I also observe that Ms. Khayfets does not allege that her race or colour would have been obvious or apparent to someone who had not yet met her. Based on the materials before me, I find that it would require speculation to conclude that camp workers knew that Ms. Khayfets was Black before she arrived on site.
[56] I also considered Ms. Khayfets evidence about the appearance of the Picture. Ms. Khayfets says that the Picture appeared new when she arrived. As set out earlier, Ms. Khayfets provided new information in her affidavit to support her assertion that the Picture was recently posted. However, as pointed out by Matrix, Ms. Khayfets does not identify the geologist she says told her the Picture had been put up very recently or provide direct evidence from them.
[57] I pause to note that Matrix asks the Tribunal to disregard Ms. Khayfets’ claim about her conversation with the geologist on the basis that it constitutes a new allegation. I am not persuaded that this information amounts to a new allegation. Rather, it is my view that it constitutes further particulars and evidence of the original allegation. This is because the new information does not expand the timeframe or fundamentally change the nature of the allegation that the Picture had been posted recently, had racial connotations, and Matrix did not adequately address Ms. Khayfets’ concerns about it. Rather, the new information simply provides a further factual basis for Ms. Khayfets allegation that the Picture was recently posted to target her as a Black person.
[58] Matrix relies on the information it obtained from the client to argue that there is no connection between the Picture and Ms. Khayfets race and colour, given that it had been posted long before Ms. Khayfets was hired, and before Matrix was hired to service the camp. Matrix did not provide direct evidence from the client regarding the Picture, rather, it provided hearsay from the Camp Manager.
[59] The parties offer contradictory evidence about the condition of the Picture and when it would have been posted which I am unable to resolve on this application. However, even if I were to accept that it was posted just prior to her arrival, I remain satisfied that it would require speculation to conclude that it was posted intentionally to target Ms. Khayfets in anticipation of her arrival.
[60] In all the circumstances, I dismiss the allegation that the Picture was posted intentionally in anticipation of Ms. Khayfets’ arrival at the camp.
[61] Next, I turn to the allegation that the presence of the Picture negatively impacted Ms. Khayfets in her employment based on her race, colour, and ancestry.
[62] Ms. Khayfets argues that this allegation is more then mere speculation based on her evidence about the way she experienced the Picture as a Black woman responding to a historically racist symbol. In her affidavit, she says the Picture made her feel unsafe as a Black woman in the workplace and it made her so uncomfortable that she avoided the camp office which she otherwise would have had to access almost daily. Ms. Khayfets also specifically denies that she was “put at ease” about the Picture.
[63] For the following reasons, Matrix has not persuaded me that this allegation has no reasonable prospect of success.
[64] The parties agree that food supplies were stored in the office, meaning that Ms. Khayfets, as the first cook, would have attended the office to pick up food supplies.
[65] Matrix does not dispute that Ms. Khayfets was the only Black employee at the camp.
[66] Matrix acknowledges that Black people experience distinct types of discrimination and referring to a Black person as a monkey or an ape is a racial slur: Martinez Johnson v. Whitewater Concrete Ltd. and others (No. 2), 2022 BCHRT 129 at para. 27.
[67] Matrix does not address the argument that, regardless of intent, Ms. Khayfets was impacted by being exposed to the Picture.
[68] Taking into consideration Ms. Khayfets’ evidence about the alleged impact, and the social context, I am satisfied that Ms. Khayfets has met the low threshold required under s. 27(1)(c) to take this allegation out of the realm of conjecture. I deny this part of the application. The allegation that the Picture had a race-based impact in employment will proceed to a hearing.
[69] Next, I turn to the allegation that Matrix’s response was inadequate and perpetuated the race-based impact on Ms. Khayfets.
[70] Ms. Khayfets says that she complained about the Picture to more than one Matrix employee, including the Supervisor, and the Picture was only removed when she took it down at the time she was leaving camp.
[71] Both parties addressed this issue in their affidavits, and the evidence conflicts on what Matrix told Ms. Khayfets about the Picture after she complained, and whether she was satisfied with Matrix’s response.
[72] Matrix says that it looked into Ms. Khayfets’ concerns about the Picture including by escalating the issue to the HR Manager and having the Camp Manager speak to the client. Matrix says that it subsequently informed Ms. Khayfets that the Picture belonged to the client, was of a famous chimpanzee, and had been posted by the client long before it had engaged Matrix’s services. Matrix says that the information appeared to put Ms. Khayfets at ease.
[73] Ms. Khayfets specifically disputes that she was put at ease. Instead, she says that she avoided the office for the entire time she was at camp because of how uncomfortable the Picture made her. Ms. Khayfets further says that there was never any substantive investigation or inquiry into why or when the Picture had been posted. She also says that nobody talked to her about how the Picture made her feel or mentioned that it had been posted a long time ago, depicted a specific chimpanzee, and was some sort of mascot. She says that the only instructions she received about the Picture came when she was leaving the camp. She says she was told to take to take the Picture down and bring it to the Supervisor, which she did.
[74] It is apparent that the parties disagree on key facts that are central to the allegation that Matrix’s response was lacking and perpetuated the race-related impacts. I am unable, on the materials before me, to resolve the dispute about whether Matrix informed Ms. Khayfets about what the Camp Manager learned about the origins of the Picture, and whether that put her at ease. The parties provide completely divergent evidence on these questions. I also observe that Matrix does not dispute that it was Ms. Khayfets who ultimately took the Picture down at the time she was leaving the camp. In my view, a hearing is required to fully explore and test the conflicting evidence about the appropriateness of Matrix’s response to Ms. Khayfets concerns about the racial connotation of the Picture and its presence in the workplace, and the corresponding impacts.
[75] In all the circumstances, I am not persuaded that this allegation has no reasonable prospect of success. It will proceed to a hearing.
C. Sick Bay Allegation
[76] Ms. Khayfets alleges that the Camp Manager’s decision to move the sick bay from the male medics’ tent into hers because it was cleaner, amounts to discrimination based on sex. While she acknowledges that this decision was “in line with policy,” she asserts that it was not in line with preserving her safety and dignity as the only woman in the camp.
[77] Matrix argues that this allegation has no reasonable prospect of success because its evidence shows that it assigned Ms. Khayfets’ sleeping tent for sick bay purposes based on her position and not her sex. Matrix argues that, moreover, Ms. Khayfets cannot prove an adverse impact because it relocated the sick bay away from her sleeping quarters after she raised a concern, and no injured male worker was ever assigned to her tent.
[78] For the following reasons, Matrix has not persuaded me that this allegation has no reasonable prospect of success.
[79] Ms. Khayfets says that she felt unsafe as a woman because she believed she might have to sleep overnight in her tent at the same time as an injured male worker.
[80] As Ms. Khayfets points out, Matrix does not appear to dispute that requiring her to share her remote sleeping quarters with a male worker would be inappropriate and amount to sex discrimination.
[81] The parties dispute, however, whether there was a real possibility that an ill or injured male worker would have been assigned to Ms. Khayfets’ tent. Ms. Khayfets says that it was made clear to her that having an injured worker stay the night in her tent was a possibility. She does not say who told her this. She also says that this understanding was reinforced by the fact that she was the only person in camp with the requisite OFA 3 certification. According to Ms. Khayfets, there were no male medics to stay with an injured worker because the second cook and baker did not have the requisite certification and/or training.
[82] Matrix denies this was a possibility for several reasons. Matrix says that it has a policy, consistent with industry standards, which prohibits male and female workers from sharing sleeping quarters. Matrix says that it employs male and female medics at all its camps to ensure compliance with this policy. Matrix says that, if necessary, one of the male medics would have been assigned to share sleeping quarters with an injured male worker overnight. In addition, the Camp Manager says that he would never have assigned a male injured worker to Ms. Khayfets’ tent in any event.
[83] Based on the materials before me, I am unable to resolve the conflicting evidence related to the possibility of an injured male worker being assigned to the sick bay in Ms. Khayfets’ tent. For example, Matrix did not provide a copy of the policy that says male and female workers are prohibited from sharing sleeping quarters. It also did not provide any evidence to confirm that there were male medics present at camp during Ms. Khayfets’ employment. Specifically, Matrix did not provide information about the qualifications, certifications, or training of the second cook and baker to contradict Ms. Khayfets assertion that she was the only OFA 3 qualified medic.
[84] I pause to note that in reply, Matrix objects to new information provided by Ms. Khayfets about the sick bay allegation in her response to the application. Matrix says that in the complaint, Ms. Khayfets acknowledges that there were other medics at camp, but provides contradictory evidence in the application, i.e. that she was the only medic. Similarly, Matrix says that in the complaint, Ms. Khayfets acknowledges that the medical equipment was relocated out of her tent but makes contradictory claims in response to the application, i.e. that the medical equipment was returned and remained there until she left.
[85] I am not persuaded to disregard the additional information in Ms. Khayfets’ response. Specifically, I am not persuaded that it amounts to new allegations or an improper expansion of the complaint. In reaching this conclusion, I note that the Tribunal’s complaint forms are not the equivalent of pleadings in a civil litigation process: White v. Nanaimo Daily News Group Inc. and Klaholz, 2004 BCHRT 350 at para. 23. It is also not uncommon, or a violation of the Tribunal’s Rules, for a complainant to add new particulars of their complaint in response to an application to dismiss. In this case, I note that Ms. Khayfets was self-represented at the time she filed her complaint then filed her response to the application with the assistance of legal counsel.
[86] I am also not persuaded, on the whole of the materials before me, that the alleged inconsistencies mean that the sick bay allegation has no reasonable prospect of success. In reaching this conclusion, I am not predetermining whether Ms. Khayfets will be able to prove her allegation, rather, I am satisfied that she has taken this allegation out of the realm of speculation. Matrix will be free to explore and test any alleged contradictions at a hearing.
[87] The parties also dispute how long the sick bay was located in Ms. Khayfets’ tent. Ms. Khayfets says that the sick bay was relocated out of her tent for only a few days after she complained, then it was moved back into her tent and remained there until she left camp. She says that she remained very concerned about the possibility of sharing her sleeping quarters with a male worker and that she became “terrified” to stay at the camp. In contrast, Matrix says that the sick bay supplies were removed immediately from Ms. Khayfets’ tent after she raised a concern, and Matrix understood the issue was resolved to her satisfaction. On this basis, Matrix argues that there is no adverse impact. The parties rely on the affidavits of Ms. Khayfets and the Camp Manager who offer conflicting versions of events. I am unable to resolve this conflict based on the materials before me.
[88] In summary, there are conflicts in the evidence that go to the core of this allegation, including how long the sick bay and patient bed was located inside Ms. Khayfets’ tent; and whether Ms. Khayfets was the only medic at the camp, and whether this meant that male workers may have to occupy her tent. In these circumstances, Matrix has not persuaded me that the sick bay allegation has no reasonable prospect of success.
IV CONCLUSION
[89] I dismiss Ms. Khayfets’ general harassment allegation as withdrawn.
[90] The allegation that the Picture was posted intentionally in anticipation of Ms. Khayfets’ arrival at the camp has no reasonable prospect of success. I dismiss it under s. 27(1)(c) of the Code.
[91] The remainder of the complaint will proceed to a hearing.
Kathleen Smith
Tribunal Member