Rana v. Loblaws Inc. (No. 2), 2025 BCHRT 273
Date Issued: October 21, 2025
File: CS-004435
Indexed as: Rana v. Loblaws Inc. (No. 2), 2025 BCHRT 273
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:
Devendra Rana
COMPLAINANT
AND:
Loblaws Inc.
RESPONDENT
REASONS FOR DECISION
APPLICATION TO DISMISS A COMPLAINT
Section 27(1)(c)
Tribunal Member: Devyn Cousineau
Advocate for the Complainant: Seifemichael Terefe
Counsel for the Respondent: Thomas Shaw
I INTRODUCTION
[1] Devendra Rana alleges that, during his employment with Loblaws, he was subjected to ongoing discriminatory harassment and his employment was suspended for discriminatory reasons. He has filed this human rights complaint alleging discrimination in his employment under s. 13 of the Human Rights Code.
[2] Loblaws denies that Mr. Rana was discriminated against and asks the Tribunal to dismiss the complaint without a hearing because it has no reasonable prospect of success: Code, s. 27(1)(c).
[3] The important facts in this case are disputed. Ordinarily, that would mean that a hearing is required to allow the Tribunal to assess credibility and make findings of fact. However, Loblaws says a hearing is not necessary. It says that the relevant findings of fact have already been made in parallel proceedings under the Workers’ Compensation Act. It argues that Mr. Rana is estopped from re-litigating those factual findings in this forum, and that those findings are determinative of his human rights complaint.
[4] For the reasons that follow, I find that Mr. Rana is estopped from re-litigating material facts that have been determined in the Workers’ Compensation Act proceedings. In light of those findings, Mr. Rana has no reasonable prospect of proving some of his discrimination allegations and they are dismissed. This leaves seven incidents of alleged discrimination which are not dismissed and will proceed to a hearing.
II ISSUES
[5] The Tribunal has discretion to dismiss complaints that have no reasonable prospect of success: Code, s. 27(1)(c). To make this decision, the Tribunal does not make findings of fact. Instead, it 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. The burden is on Loblaws to establish the basis for a dismissal.
[6] This application rests on the legal principle of issue estoppel. That principle provides that, where an issue has already been finally decided in a prior judicial proceeding with the same parties, a person may not be allowed to re-litigate that same issue in another forum: Penner v. Niagara (Regional Police Services Board), 2013 SCC 199 at para. 29. Issue estoppel “extends to issues of fact, law, and mixed fact and law” that have been decided in the prior proceeding: Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44 at para. 54. Once a court or tribunal makes a final decision about a material fact then, with limited exceptions for fairness, that same fact “cannot be relitigated in subsequent proceedings between the same parties”: Danyluk at para. 54. If that fact is determinative of a person’s human rights complaint, the Tribunal may dismiss the complaint on the basis that it has no reasonable prospect of success: Fox v. Strata Plan KAS 1911 and others, 2018 BCHRT 259 at para. 32.
[7] The test for issue estoppel has two steps. First, I must determine whether: (1) the same question has been decided; (2) the decision was final; and (3) the parties or their privies were the same in each proceeding: Danyluk at para. 25. The burden is on the party seeking to rely on the estoppel – here Loblaws – to establish these preconditions: Danyluk at para. 33. If these preconditions are met, I then determine whether, as a matter of fairness, I should apply issue estoppel: Danyluk at para. 33; Penner at paras. 36-39. In exercising this discretion, I must give due consideration to the strong policy factors that weigh against re-litigation of the same issues. Those policy objectives centre on the importance of finality, particularly in the context of administrative decisions which are “designed to facilitate the expeditious resolution of disputes”: British Columbia (Workers’ Compensation Board) v. Figliola, 2011 SCC 52atpara. 27; see also para. 34.
[8] This application is about the impact of two prior proceedings under the Workers Compensation Act:
a. Mr. Rana’s claim for compensation as a result of a mental health disorder caused by bullying and harassment at work [Compensation Claim]. The Compensation Claim was denied by a WorkSafeBC entitlement officer and on appeal to the Review Division and Workers’ Compensation Appeal Tribunal [WCAT].
b. Mr. Rana’s complaint that Loblaws suspended his employment because he raised a health and safety issue [Prohibited Action Complaint]. This complaint was denied by a WorkSafeBC Legal Adjudicative Officer and on appeal to WCAT.
[together, WCA Proceedings]
[9] There is no dispute that the WCA Proceedingsgave rise to final decisions, and that the parties were the same in each proceeding. There is also no dispute that the alleged incidents of bullying, harassment, and adverse treatment underlying the WCA Proceedings are the same incidents underlying Mr. Rana’s human rights complaint.
[10] The application turns on three issues:
a. Whether WCAT has decided the same material facts as arise in this human rights complaint;
b. If so, whether I should exercise my discretion to estop Mr. Dana from relitigating those facts in this human rights complaint; and
c. If so, whether those factual findings are determinative of all or part of Mr. Dana’s human rights complaint, such that it has no reasonable prospect of success.
[11] I begin with a brief background to the WCA Proceedings and Mr. Rana’s human rights complaint.This background, and my decision, are based on the materials filed by the parties. I make no findings of fact.
III BACKGROUND
[12] Mr. Rana began work as a cashier for Loblaws on April 11, 2016. Hedescribes himself as an “older worker”, “male of Indian ancestry, a practicing Hindu, and a person of colour”. He says that he has mental and physical disabilities. He alleges that, throughout his employment, co-workers targeted him for harassment. He says he repeatedly complained to the employer, and in response the employer labelled him a troublemaker and blamed him for the problems.
[13] On June 20, 2020, Mr. Rana had an interaction with a co-worker at work, which prompted Loblaws to investigate his conduct. Following an investigation meeting on June 23, Mr. Rana went off work on a medical leave. When he returned on July 7, Loblaws issued him a disciplinary suspension. Mr. Rana characterises this as an “indefinite suspension” and constructive dismissal. He has never returned to work. Loblaws says that the suspension was for two weeks, and Mr. Rana remains employed.
A. Compensation Claim
[14] On the day of his suspension – July 7, 2020 – Mr. Rana filed his Compensation Claim with WorkSafeBC. He alleged that he had a mental disorder that had been caused by events at work between April 2016 and July 7, 2020.
[15] The issue in the Compensation Claim was whether Mr. Rana had a mental health disorder that was either:
(i) A reaction to one or more traumatic events arising out of and in the course of the worker’s employment, or
(ii) Predominantly caused by a significant work-related stressor, including bullying or harassment, or a cumulative series of significant work-related stressors, arising out of and in the course of the worker’s employment …
Workers Compensation Act, s. 135
[16] Mr. Rana’s claim was denied by WorkSafeBC, and on review to the Review Division. The final decision was made by WCAT on June 21, 2022 [WCAT Compensation Decision]. To make its decision, WCAT held an oral hearing where Mr. Rana testified and presented evidence. It also considered evidence collected by an investigator with WorkSafeBC.
[17] WCAT accepted that “a version of many of the events” described by Mr. Rana “occurred in a general sense”: para. 42. However, the panel disagreed with Mr. Rana’s “perception of himself as the victim in these events” and with his “characterisation of events”: para. 42. The panel preferred evidence of Mr. Rana’s co-workers, supervisors, and managers, who did not support Mr. Rana’s version of events and described Mr. Rana as “the source of any workplace tension rather than the victim”: paras. 47-48. The panel concluded that Mr. Rana “was largely the aggressor and that the events in question were, in any event, of a trivial nature more reflective of interpersonal conflict than bullying and harassment for the purposes of the Act”: para. 43. The panel found, further, that Mr. Rana’s complaints about the assignment of work and employer discipline engaged the employer’s right to manage its workplace and could not be “valid causes of his potential disorder”: para. 59; Workers Compensation Act, s. 135(1)(c). The claim was denied.
[18] In reaching this conclusion, WCAT upheld and adopted the more detailed reasoning of the Review Division, which addressed each of Mr. Rana’s specific allegations: para. 43. For that reason, much of my analysis below refers to the decision of the Review Division dated September 15, 2021 [RD Compensation Decision].
B. Prohibited Action Complaint
[19] One day after his suspension – July 8, 2020 – Mr. Rana filed his Prohibited Action Complaint. He alleged that Loblaws had suspended him because he had complained about bullying and harassment, and racial discrimination.
[20] The complaint was denied by a WorkSafeBC Legal Adjudicative Officer, who found that Loblaws had suspended Mr. Rana for violating its workplace policies. Mr. Rana appealed this decision.
[21] The final decision was made by WCAT on June 15, 2023 [WCAT Prohibited Action Decision]. The hearing was based on written submissions and evidence, including documents and audio recordings. WCAT concluded that Loblaws suspended Mr. Rana because of his “inappropriate workplace conduct towards several co-workers” and his health and safety concerns were not a factor: para. 50. As a result, the complaint was denied.
C. Human rights complaint
[22] One year after his suspension, on July 6, 2021, Mr. Rana filed this human rights complaint. His discrimination allegations span his employment with Loblaws between April 2016 and July 7, 2020. He alleges various forms of adverse treatment, based on his race, ancestry, colour, place of origin, physical and mental disability, sex, age, and religion [collectively, protected characteristics].In a decision dated November 20, 2024, the Tribunal accepted all the allegations for filing as a timely continuing contravention of the Code: Rana v. Loblaws Inc, 2024 BCHRT 328.
[23] As I have said, there is no dispute that the allegations in Mr. Rana’s human rights complaint concern the same events at issue in the WCA Proceedings. Specifically, Mr. Rana alleges that the same bullying and harassment, and ineffective employer response, that underlie his Compensation Claim amount to discriminatory harassment in violation of the Code. He alleges that the events giving rise to the June 20 interaction, and the ensuing investigation meeting and suspension, were discriminatory and retaliatory against him for complaining about bullying, harassment, and racial discrimination. These events were at issue in both WCA Proceedings.
[24] Neither of the WCA Proceedings addressed Mr. Rana’s allegation that his adverse treatment was based on characteristics protected by the Code and, as such, was discriminatory: Moore v. BC (Education), 2012 SCC 61 at para. 33. As I have said, the issue in this application is whether Mr. Rana should be estopped from re-litigating material facts found by WCAT and, if so, whether those facts are determinative of his human rights allegations.
IV IS MR. RANA ESTOPPED FROM RE-LITIGATING MATERIAL FACTS FOUND BY WCAT?
[25] I am satisfied that WCAT has made findings of fact about the following material issues in Mr. Rana’s human rights complaint:
a. whether his supervisors, co-workers, and managers have engaged in a years-long conspiracy to bully and harass him;
b. specific allegations of bullying or harassment (detailed below);
c. what happened in the June 20 interaction;
d. what happened in the June 23 investigation meeting, and the reasons for the meeting; and
e. the reasons for his suspension.
[26] I will detail those findings below, when I consider their implications for Mr. Rana’s human rights complaint. At this stage of my analysis, I am satisfied that the preconditions of estoppel are met regarding these material facts. I turn, then, to consider Mr. Rana’s argument that I should not exercise my discretion to apply the estoppel.
[27] There is discretion not to apply an estoppel where it would be unfair to do so. This is because a “judicial doctrine developed to serve the ends of justice should not be applied mechanically to work an injustice”: Danyluk at para. 1. In the context of decisions by administrative bodies, the discretion requires decision makers to “take into account the range and diversity and structures of administrative decision makers”, without sanctioning collateral attack or undermining “the integrity of the administrative scheme”: Penner at para. 31.
[28] In Penner, the majority described two ways that unfairness may arise: (1) where the prior proceedings were unfair; or (2) where the proceedings were fair, but it would “nonetheless be unfair to use the results of the process to preclude the subsequent claim”: para. 39. As I understand his submissions, Mr. Rana argues that it would be unfair to apply estoppel for two main reasons.
[29] First, Mr. Rana says that he did not have an opportunity to know the case to be met in the WCA Proceedings: submission at para. 47. This argument is not explained, and I cannot ascertain the basis for it. Mr. Rana had full participatory rights in the WCA Proceedings. It was clear what he had to prove to establish his claims. In the words of the Supreme Court of Canada, he “had a chance to air [his] grievances before an authorized decision maker”: Figliola at para. 49.
[30] Second, Mr. Rana argues that the estoppel should not apply because the WCA Proceedings did not consider the substance of his human rights complaint or offer him a human rights remedy. I accept this, and it is undisputed. However, this is not responsive to whether it would be unfair to apply an estoppel in respect of material facts that are common to the human rights proceeding and WCA Proceedings. Notably, this is not an application under s. 27(1)(f) of the Code to dismiss his complaint on the basis that the substance of his complaint was dealt with by WCAT.
[31] In these circumstances, I am satisfied that it would not be unfair to estop Mr. Rana from re-litigating material facts that have already been subject to final decisions by another adjudicative body. Estoppel in this case promotes the strong public policy of finality in decision making. Mr. Rana had a full opportunity to put his best foot forward before WCAT. It is not unfair to hold him to the resulting factual findings.
[32] Next, I consider whether any of WCAT’s factual findings are determinative of Mr. Rana’s human rights allegations. This turns on whether, in light of WCAT’s factual findings, Mr. Rana has no reasonable prospect of proving that either (1) he was adversely impacted or treated at work, or (2) his protected characteristics were a factor in the adverse impact or treatment: Moore at para. 33.
V DO MR. RANA’S HUMAN RIGHTS ALLEGATIONS HAVE NO REASONABLE PROSPECT OF SUCCESS?
[33] Mr. Rana’s allegations of discrimination fall within three broad categories: (1) alleged harassment and inadequate employer response between 2016 and 2020; (2) co-workers directing excessive work to him between April – June 2020; and (3) the employer’s response to the incident on June 20, 2020, culminating in his suspension on July 7, 2020. I consider each in turn.
A. Alleged harassment and employer response (2016-2020)
[34] In his human rights complaint and Compensation Claim, Mr. Rana alleged that he had been bullied and harassed throughout his employment by his supervisors, co-workers, and managers, and that his employer failed to address his complaints. He listed many specific examples, which I understand were also reported to and (at least for some) investigated by the employer.
[35] As I have said, in the Compensation Claim, WCAT accepted that “a version of many of the events [alleged by Mr. Rana] occurred in a general sense”: para. 42. However, WCAT found that Mr. Rana was not a “reliable historian”, reasoning that he either “misinterpreted the objective significance of the events in question” or “experiences events in a manner that infers criticism and negativity where none is present”: para. 45. WCAT rejected Mr. Rana’s allegation of a years-long conspiracy (which also underpins his human rights complaint), reasoning:
… [Mr. Rana’s] insistence on a wide-ranging conspiracy defies reasonable belief. It is inconceivable to me that 17 people, including supervisors, co-workers, and managers were all joined in the concerted goal of harming the worker or bullying him and harassing him… [Compensation WCAT Decision, at para. 48]
WCAT found, instead, that “the worker was largely the aggressor and that the events in question were, in any event, of a trivial nature more reflective of interpersonal conflict than bullying and harassment for the purposes of the Act”: para. 43. As a result, WCAT concluded that the events were not “significant stressors” or “traumatic events” which would entitle Mr. Rana to compensation for any related mental disorder.
[36] These general findings are not determinative of Mr. Rana’s allegations of discriminatory harassment between 2016 and 2020. This is because they address a different issue. The issue under the Code is not whether the incidents were significant stressors or traumatic events, or whether they amounted to bullying or harassment within the meaning of the Workers Compensation Act. Rather, it is whether the incidents adversely impacted Mr. Rana in his employment for reasons connected to his protected characteristics. WCAT accepted that some version of the allegedly discriminatory events happened. In this application, I must consider whether WCAT made specific factual findings that could be determinative of Mr. Rana’s allegations regarding those events. In the sections that follow, I consider each event which Mr. Rana alleges violated the Code.
1. Co-worker rude and swearing (August 2016)
[37] In his human rights complaint, Mr. Rana alleges that, in August 2016, a co-worker was rude and uncooperative. The co-worker yelled and swore at him in front of customers.
[38] In light of WCAT’s finding that there was no years-long conspiracy to bully or harass Mr. Rana based on protected characteristics or otherwise, there are no facts capable of proving a connection between this adverse treatment and Mr. Rana’s protected characteristics. This allegation is dismissed.
2. Co-worker mocking accent / country comments (August 26, 2016 and December 24, 2017)
[39] In his human rights complaint, Mr. Rana alleges that, on August 26, 2016, a co-worker mocked his accent by saying “alla” instead of “hello”. She continuously mocked his accent, was sarcastic, and refused to give him product codes. When he asked her to tell him the code, she said “F.. you just do it what I’m telling you, fuc… this is my country and don’t reply me back” [as written].
[40] Mr. Rana described a similar incident in the Compensation Claim, but said it happened on December 24, 2017. He alleged that his co-worker screamed at him that “In this country, we can say anything to anyone when we want and no one can stop us”: Review Division at p. 4.
[41] WCAT did not make a specific finding of fact about these incidents. Loblaws did not make submissions about whether Mr. Rana has no reasonable prospect of proving they violated the Code. On their face, these facts could support a finding that the comments adversely impacted Mr. Rana based on his place of origin, race, and colour. This may violate the Code. I do not dismiss this allegation.
3. “Hooter” comment (September 30, 2016)
[42] In his human rights complaint, Mr. Rana alleges that, in September 2016, a co-worker told him about a derogatory thing that her husband had said about another brown woman (“U fu.. look like hooter when you dress up” [as written]).
[43] Assuming for the purpose of this application that Mr. Rana may prove this allegation at a hearing, he does not allege any facts that could support that a connection with his protected characteristics. The allegation has no reasonable prospect of success and is dismissed.
4. Customer comment (September 18, 2016)
[44] In his human rights complaint, Mr. Rana alleges that he overheard a customer say to his co-worker: “This fuc… idiot does know anything which countries does he belong” [as written]. When he confronted his co-worker, the co-worker confirmed that the customer was racist but said that “The customer can say anything you have to listen” and told him to go back to work.
[45] Mr. Rana also raised this incident in the Compensation Claim, though he described it slightly differently. There, he alleged that the customer said, ““This fucking Indian. Why are you keeping this fucking Indian here?”: Review Decision at p. 4. He alleged that his co-worker ignored the comment.
[46] The Review Division accepted that something like this occurred, reasoning that it is “plausible that any worker employed in retail sales or as a cashier, could be exposed to members of the public who might be rude to them or file complaints about how they have been treated, when they do not get their way”: p. 9. However, the Review Division concluded that Mr. Rana did not report the incident when it occurred or report any adverse reactions for almost four years. The comment, if it was made, was not a significant stressor under s. 135 of the Act. WCAT upheld this finding.
[47] WCAT’s finding is not determinative of this allegation. It leaves open the prospect that Mr. Rana was exposed to a comment by a customer that derided him based on his place of origin, race, ancestry, and colour. If proven, this may violate the Code. I do not dismiss this allegation.
5. Name comments (September 20, 2016)
[48] In his human rights complaint, Mr. Rana alleges that a co-worker mocked his name and accent with a “sarcastic smile”, asking whether his name was “Dave or DEVV or dev” and then commenting “I am just wondering why the people from you country comes here changes the name” [as written].
[49] WCAT has not made a specific finding of fact about this incident. Loblaws did not make submissions about whether Mr. Rana has no reasonable prospect of proving this incident violated the Code. On their face, these facts could support a finding that the comment adversely impacted Mr. Rana based on his place of origin, ancestry, race, and colour. This may violate the Code. I do not dismiss this allegation.
6. India comment (November 5, 2016)
[50] In his human rights complaint, Mr. Rana alleges that another cashier sarcastically asked “Are u Punjabi, are you from Punjab”, mocking an Indian tone and gestures. When Mr. Rana said he was not Punjabi, and explained he was from Mumbai and spoke Hindi, the cashier said “I know Mumbai and India, very dirty and crowded… why did you come here?”.
[51] WCAT has not made a specific finding of fact about this incident. Loblaws has not made submissions about whether Mr. Rana has no reasonable prospect of proving this incident violated the Code. On their face, these facts could support a finding that the comment adversely impacted Mr. Rana based on his place of origin, ancestry, race, and colour. This may violate the Code. I do not dismiss this allegation.
7. Peeing comment (November 11, 2016)
[52] In his human rights complaint, Mr. Rana alleges that the assistant manager made rude comments about Mr. Rana peeing everywhere while he was cleaning the floor with water. Then the cashier asked sarcastically which country his wife belonged to, and they both laughed.
[53] Mr. Rana also made this allegation in the Compensation Claim: Review Decision, p. 4. The Review Division preferred the evidence of the assistant manager, who denied accusing Mr. Rana of peeing and advised that Mr. Rana had been reprimanded for making this false report: p. 11.
[54] In light of this factual finding, Mr. Rana has no reasonable prospect of proving that the assistant manager made the allegedly discriminatory comments. This allegation is dismissed.
8. Hearing comment (December 24, 2017)
[55] In his human rights complaint, Mr. Rana alleges that his co-workers were making sarcastic comments and screaming at him “Dev, did you hear, I am talking loud because you don’t hear”.
[56] This date also corresponds with Mr. Rana’s allegation in his Compensation Claim that a co-worker screamed at him: “In this country, we can say anything to anyone when we want and no one can stop us” (see above).
[57] WCAT has not made a specific finding of fact about this incident. Loblaws did not make submissions about whether Mr. Rana has no reasonable prospect of proving this incident violated the Code. On their face, these facts could support a finding that the comment adversely impacted Mr. Rana based on his place of origin, race, colour, disability, and/or age. This may violate the Code. I do not dismiss this allegation.
9. Cap/sweater allegation (November 2017 – February 2018)
[58] Mr. Rana says that he often wore a sweater or cap because he was cold. In his human rights complaint, Mr. Rana alleges that two co-workers would frequently touch his bald head and comment, “you are too old, your body is cold” and then laugh at him wearing a jacket, saying “why are you wearing a jacket, it is not so cold, you are old”.
[59] Mr. Rana also made this allegation in the Compensation Claim. He alleged that:
Ms. P2 [a co-worker] often made fun of him for wearing a sweater or cap at work. The worker said that he told her that he was cold, but that he felt she was making fun of him due to his age, physical condition, and personal characteristics. The worker said that on another occasion, Ms. P2 called him a “f**cking idiot” and another time she touched his cap (testing to see if he was cold) … [Review Decision, p. 7]
[60] WCAT has not made a specific finding of fact about this incident. Loblaws did not make submissions about whether Mr. Rana has no reasonable prospect of proving this incident violated the Code. On their face, these facts could support a finding that the comment adversely impacted Mr. Rana based on age and disability. This may violate the Code. I do not dismiss this allegation.
10. Age comments (February 2018 / 2020)
[61] In his human rights complaint, Mr. Rana alleges that, in February 2018, two co-workers were asking him “what is your age? How old are your kids?” Perhaps in the same interaction (though this is unclear), he says that a coworker commented, “your kids are of my age and still you work”. He alleges that, between January and June 2020, two co-workers would sarcastically tell him their age then laugh at him.
[62] WCAT has not made a specific finding of fact about this incident. Loblaws did not make submissions about whether Mr. Rana has no reasonable prospect of proving this incident violated the Code. On their face, these facts could support a finding that the comments adversely impacted Mr. Rana based on his age. This may violate the Code. I do not dismiss this allegation.
11. Management response to complaints (various dates)
[63] Mr. Rana submitted written complaints to his employer about the allegations underlying this complaint on November 7, 2016, February 9, 2018, August 22, 2019, and June 22, 2020: WCAT Prohibited Action Decision at para. 41. In its response to the complaint, Loblaws also refers to a complaint on April 8, 2018.
[64] In his human rights complaint, Mr. Rana alleges that, in response to his complaints, managers and supervisors told him “you are a troublemaker” and, on one occasion, that he had “problems being sarcastic”. Loblaws says that it investigated Mr. Rana’s complaints, and found them to be unsubstantiated.
[65] To the extent that any of Mr. Rana’s complaints to Loblaws were about the seven allegations I have not dismissed, WCAT’s findings are not determinative of whether Loblaws’ response to those complaints was reasonable for the purposes of the Code. Loblaws has not pointed me to any specific factual findings about this issue, and there is no other evidence or argument before me which would allow me to consider it. As a result, I decline to dismiss Mr. Rana’s allegations about Loblaws’ response to any complaints he made about allegations I have not dismissed (listed at the end of the decision for reference).
B. Excessive work (April – June 2020)
[66] In his human rights complaint, Mr. Rana alleges that two co-workers were intentionally sending him extra work during the COVID-19 pandemic. He alleges that they support the Khalistan movement and were provoking and targeting him because he is Hindu. In his response to this application, he also alleges that the co-workers were targeting him “as an older, immunocompromised worker”. He points to a decision of the WorkSafeBC Review Division, dated February 27, 2023, finding that he sustained an aggravation of his pre-existing left wrist ulnar impaction syndrome as a result of his work duties between March and June 23, 2020. He argues that this is evidence to support that he was being subjected to “intensified work conditions”. I note that this decision does not address Mr. Rana’s allegation that he was being targeted for extra work or being assigned more work than his co-workers. Rather, it refers to Mr. Rana working more hours per week than he had before the pandemic.
[67] Mr. Rana made the same allegation in the Compensation Claim. He alleged that several co-workers would target him “by sending customers to his lane when others were empty or by sending him customers with more items to purchase”: RD Compensation Decision at p. 5. WCAT rejected the allegation, finding:
… it is clear that the worker had a belief that he was being assigned work, by way of the ambassadors, in an unfair manner. I do not accept that such circumstances existed. I consider it highly improbable that any marked difference in volume would be present. A customer would simply not accept being directed to a line that was going to be noticeably slower than another line. Nor would an employer permit such conduct to occur as it would be contrary to its fundamental business interest not to annoy its customers by having them wait for an unnecessary lengthy period of time.
In my view, while there may have been minor discrepancies, the worker amplified his perception of any unfairness to the point where his subjective experience was quite different from the reality. The reality was that the employer was entitled to direct customers, through the use of ambassadors to his checkout wicket and did so. There was no, or insufficient, improper conduct in this regard to take this routine assignment of work outside of the management rights exclusion … [paras. 56-57]
[68] In my view, this is a finding of fact about the same material issue underlying Mr. Rana’s allegation of discriminatory work assignments. It is a finding that Mr. Rana was not assigned excessive work or targeted for unfair work assignments.
[69] Mr. Rana is estopped from re-litigating this material fact in his human rights complaint. In light of this finding, Mr. Rana has no reasonable prospect of proving that he was targeted or treated adversely by his co-workers in the assignment of his work. This is determinative of this allegation of discrimination, and so the allegation is dismissed.
C. Management response to June 20 incident (June 23 and July 7, 2020)
[70] On June 20, 2020, there was an incident involving Mr. Rana and other co-workers. That day, Mr. Rana complained to his supervisor that his co-workers were sending him disproportionately more work and laughing at him. In the Compensation Claim, he alleged that his supervisor told him to “shut up” and used the ‘f word”: WCAT Decision para. 25. Another worker intervened. Mr. Rana alleged that this worker pushed and manhandled him. Later, he says that the supervisor’s husband threatened him in the parking lot. This incident would later give rise to discipline against Mr. Rana, which he alleges was discriminatory.
[71] In the Prohibited Action Complaint, WCAT accepted the employer’s evidence about the June 20 incident. That evidence supported findings that:
… the worker’s June 20, 2020 workplace conduct was rude and verbally aggressive towards several female co-workers with his inappropriate actins including name calling, swearing, abusive language, staring behaviour and belittling behaviour. The worker berated a female co-worker on the store floor in such an egregious manner that a customer filed a complaint and a representative from another business stepped in to try and de-escalate the situation. … [para. 50]
… Further, the employer reviewed the surveillance video footage of the June 20, 2020 workplace incident and concluded that the co-workers were not treating the worker unfairly or inappropriately and that the worker clearly left his cashier workstation, pushed through customers, physically got into the face of a female co-worker, yelled at that co-worker and waved his finger at that co-worker… [para. 12]
[72] In the Compensation Claim, the Review Division accepted that Mr. Rana perceived he was being targeted for extra work on June 20 but found that was not the case: RD Compensation Decision, p. 13. It outlined the evidence of other witnesses, who reported that Mr. Rana was the aggressor, yelling at co-workers in front of customers. One female coworker was concerned that Mr. Rana was going to assault her, which prompted the intervention by the other worker. The Review Division did not accept that this worker “manhandled” Mr. Rana: RD Compensation Decision, pp. 12-13. These findings were upheld by WCAT: WCAT Compensation Decision at paras. 43, 53.
[73] Mr. Rana does not set out a specific allegation of discrimination regarding the June 20 incident. However, WCAT’s findings about what occurred are relevant to his allegation that management’s response was discriminatory.
[74] Loblaws says that it immediately initiated an investigation into the June 20 incident. At that time, it says that it was already investigating separate allegations against Mr. Rana brought by “numerous female colleagues”.
[75] On June 23, Mr. Rana was called into a meeting with management to discuss the June 20 incident. Loblaws calls this an investigation meeting. In his human rights complaint, Mr. Rana alleges that management forced him to accept allegations against him and tried to intimidate him without the union present. He made the same allegation in the Compensation Claim. He alleged that “he was yelled at and told he was too aggressive and that the meeting was his ‘last warning’ to improve his behaviour”. He says he had no help from the union: WCAT Decision at para. 27.
[76] The Review Division found that there was no bullying and harassment during this meeting: p. 13. It found that Mr. Rana became agitated and loud as the meeting continued and accepted in that context that Mr. Rana was directed to keep his answers to ‘yes’ or ‘no’: p. 13. These findings were upheld by WCAT. In my view, the finding that the managers did not bully or harass Mr. Rana in the ways he has alleged is determinative of his allegation that management’s conduct in this meeting was discriminatory. This is because, in light of that finding, he has no reasonable prospect of proving that he was treated adversely in the meeting in a manner that could trigger the protections of the Code: Gaucher v. Fraser Health Authority and others, 2019 BCHRT 243at paras. 60-63.
[77] Mr. Rana returned to work on July 7. On that date, he was called into a meeting with management, where he was advised that he was suspended for two weeks for his conduct in the June 20 incident. (Mr. Rana describes this as an “indefinite” suspension, but Loblaws says it was for two weeks, which is consistent with how WCAT described it in the Prohibited Action Complaint: para. 44). He has not returned to work since.
[78] There is no dispute that a disciplinary suspension is an adverse impact in employment. Mr. Rana’s allegation of discrimination regarding the suspension turns on whether he has no reasonable prospect of proving that his protected characteristics were a factor in the suspension. In considering this issue, I am mindful that his protected characteristics need only be one factor and not necessarily the causal or overriding factor: Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Bombardier Inc. (Bombardier Aerospace Training Center), 2015 SCC 39 at para. 52.
[79] In his human rights complaint, Mr. Rana alleges that Loblaws suspended him as part of its conspiracy to get him to leave by creating an unpleasant work environment because of his protected characteristics, and in retaliation for raising complaints about bullying and harassment. He made the same allegation in his Compensation Claim: WCAT Decision at para. 28. In the Prohibited Action Complaint, he alleged that he was suspended in retaliation for raising health and safety issues. WCAT rejected these arguments in both WCA Proceedings.
[80] As I have said, WCAT rejected Mr. Rana’s allegation of a conspiracy against him in the Compensation Claim: para. 48. It upheld the Review Division’s finding that Mr. Rana was suspended for violating the employer’s Violence, Harassment and Discrimination policy at work: p. 14. WCAT found that, “[g]iven the number of co-workers who identified the worker as the source of workplace tensions and as acting aggressively” in the June 20 incident, the employer’s decision to suspend Mr. Rana was a reasonable exercise of its management rights: para. 58.
[81] This is consistent with WCAT’s findings in the Prohibited Action Complaint. There, WCAT rejected Mr. Rana’s argument that the suspension was to retaliate against him for raising health and safety concerns. It found that Mr. Rana was “suspended because of his inappropriate conduct at work on June 20, 2020”: para. 51. Part of the record before WCAT included an audio recording of the July 7 meeting between Mr. Rana and the employer. That recording was described by the Legal Adjudicative Officer in her reasons initially denying the complaint: see paras. 67-73. The Officer concluded that the recording supported that the employer was “solely motivated to suspend him” because of his conduct on June 20: para. 73.
[82] In light of these findings, Mr. Rana’s allegation that his protected characteristics were a factor in his suspension is conjecture. I reach this conclusion while understanding that it is possible that the employer could have issued the suspension because of the June 20 incident and for reasons connected to Mr. Rana’s protected characteristics, and that WCAT did not specifically consider whether Mr. Rana’s protected characteristics were a factor. However, WCAT did reject the pillars of Mr. Rana’s discrimination argument – that he was targeted as a conspiracy and for raising heath and safety concerns. He has not pointed to any other evidence capable of establishing a connection to his protected characteristics. As a result, this part of his complaint has no reasonable prospect of success and is dismissed.
VI CONCLUSION
[83] I have found that most of Mr. Rana’s allegations of discrimination have no reasonable prospect of success. Those allegations are dismissed under s. 27(1)(c) of the Code. This includes several allegations of discriminatory harassment, allegations of excessive work between April and June 2020, and allegations about events leading up to, and culminating in, his suspension in July 2020.
[84] I do not dismiss the following allegations:
a. Co-worker mocking accent / country comments (April 26, 2016 and December 24, 2017);
b. Customer comment (September 18, 2016);
c. Name comments (September 20, 2016);
d. India comment (November 5, 2016);
e. Hearing comment (December 24, 2017);
f. Cap/sweater allegations (November 2017-February 2018);
g. Age comments (February 2018/2020); and
h. Management response to complaints about these incidents.
[85] These allegations will be scheduled for a hearing.
Devyn Cousineau
Vice Chair