BC Human Rights Tribunal

Ens v. 0704121 BC Ltd. dba Gandy HVAC and others (No.2), 2025 BCHRT 277

Date Issued: October 30, 2025
File: CS-001427

Indexed as: Ens v. 0704121 BC Ltd. dba Gandy HVAC and others (No.2), 2025 BCHRT 277

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:

Maryam Ens

COMPLAINANT

AND:

0704121 BC Ltd. dba Gandy HVAC and Gandy Installations and Gandy Installations Ltd. dba Gandy Installations

RESPONDENTS

REASONS FOR DECISION

Tribunal Member: Andrew Robb

Counsel for the Complainant: Jesse Langelier

Counsel for the Respondents: Jim Wu

Date of Hearing: March 24 to 28, 2025

Location of Hearing: Microsoft Teams Videoconference

I          INTRODUCTION

[1]               Maryam Ens, formerly Maryam Moghaddam-Ghadimi, filed a complaint against 0704121 BC Ltd. and Gandy Installations Ltd., two related companies doing business as Gandy HVAC and Gandy Installations. I heard Ms. Ens’s complaint over five days, via videoconference. During the hearing the parties referred to the two respondent companies, together, as Gandy. I do the same in this decision.

[2]               Ms. Ens worked for Gandy from 2016 until Gandy terminated her employment in April 2020. She says Gandy discriminated against her in her employment, contrary to s. 13 of the Human Rights Code, on the grounds of her disability, sex, race, religion, and place of origin. She alleges racist, Islamophobic, and sexist comments by her managers throughout her employment, and she says she was treated differently than other managers, after she was promoted to a managerial position. She also alleges that Gandy’s response to her report of being sexually assaulted by a co-worker was unreasonable and discriminatory. Finally, she alleges her termination was discriminatory. She says Gandy had a duty to inquire about whether her conduct that led to the termination was connected to her disability, before terminating her. She also says her conduct was, in part, a response to the discrimination she faced at Gandy.

[3]               In a previous decision, the Tribunal found the allegations in Ms. Ens’s complaint from more than one year before the complaint was filed are part of a continuing contravention under s. 22(2) of the Code: Moghaddam-Ghadimi v. 0704121 BC Ltd. dba Gandy HVAC and others, 2024 BCHRT 274 at paras. 28 and 31. In this decision I consider all the allegations in her complaint.

[4]               Gandy denies Ms. Ens’s allegations. Gandy says Ms. Ens has not established that the conduct that led to her termination was connected to her disability, or that Gandy’s response to the sexual assault was unreasonable. Gandy denies that Ms. Ens was subjected to racist, sexist, or Islamophobic comments, and argues that even if she was, she participated in and thereby condoned the workplace culture that she now says was poisoned by discrimination.

[5]               I have considered the evidence given by the witnesses at the hearing and the written submissions provided by the parties after the hearing. For the reasons set out below, I find Ms. Ens’s complaint is justified. I accept Ms. Ens’s evidence that she was subjected to persistent racist, sexist, and Islamophobic comments by Gandy managers. I find Gandy’s response to the sexual assault was unreasonable and discriminatory, mainly because her supervisor initially ignored her report of the assault, and Gandy took no action at all until she reported it to a different manager, three years later. I find Ms. Ens has not established that the conduct that led to her termination was connected to her disability, but I still find the termination was discriminatory because I accept that this conduct was due, in part, to the discrimination she experienced on the grounds of her sex, race, religion, and place of origin.

[6]               As a remedy, I order Gandy to pay $30,000 as compensation for the injury to Ms. Ens’s dignity, feelings, and self-respect.

[7]               Since Ms. Ens’s allegations address personal and potentially sensitive information about her mental disability and a sexual assault against her, I gave her an opportunity to apply to limit publication of information that could identify her. In her written submissions, Ms. Ens confirmed that she does not wish to do so.

II       Facts

[8]               In this section I set out my findings of fact, based on the testimony of the witnesses and the documents admitted into evidence at the hearing. This is not an exhaustive summary of all the evidence I heard. I only refer to what is necessary to explain my decision.

A.    Witnesses and credibility

[9]               Ms. Ens testified on her own behalf, and called two witnesses, Arletta Fussell and Amber Mitchell. Ms. Fussell worked for Gandy from 2018 to 2020, and reported to Ms. Ens from the time when Ms. Ens was promoted to a managerial position in July 2019, until Ms. Ens’s employment was terminated. Ms. Fussell and Ms. Ens remain close friends. Ms. Mitchell worked for Gandy from October 2019 to October 2020, except for a layoff from approximately March to June 2020, when Gandy’s business slowed down due to the beginning of the pandemic. She reported to Ms. Ens from when she started working for Gandy until her layoff in March 2020, and has remained friends with Ms. Ens since then.

[10]           Three witnesses testified on behalf of Gandy: Taylor Gandy, who was General Manager of Gandy during the events described in the complaint, and is now Chief Executive Officer; Tina Harter, who worked in various roles at Gandy during the events described in the complaint, including her current role of Office Manager; and David Guild, who was Services Manager during the events described in the complaint, and is now General Manager. In this decision I refer to Taylor Gandy by his full name, to distinguish him from Gandy’s owner, Chuck Gandy.

[11]           There is no dispute about most of the relevant background facts. Ms. Ens is a non-practising Muslim, of Middle Eastern descent. Her parents emigrated to Canada from Iran. She started working for Gandy in June 2016, when she was 22 years old. She worked in various administrative roles, and was given increasing responsibilities. In July 2019, she was promoted to the position of Call Centre Manager. She managed four to six employees in Gandy’s call centre, whose main role was to book service calls, dispatch technicians, and respond to customer inquiries. Before her promotion, Mr. Guild was her direct supervisor. After she was promoted, her supervisor was Taylor Gandy, but she still worked closely with, and received directions from, Mr. Guild. Ms. Ens’s last day at work at Gandy was April 3, 2020. Gandy terminated her employment on April 20, 2020. During the events described in the complaint, Gandy was owned by Chuck Gandy, and he had the final say on important decisions, including termination of employees.

[12]           Most of Gandy’s employees are tradespersons and technicians who work outside Gandy’s office, installing and maintaining heating, ventilation, and air conditioning systems in customers’ homes and businesses. Ms. Ens worked at Gandy’s office. She testified that the other employees who worked in the office included:

a.      Chuck and Taylor Gandy, Mr. Guild, and Ms. Harter;

b.      Ms. Ens and the employees in the Call Centre, including Ms. Fussell and Ms. Mitchell; and

c.       A bookkeeper and two or three other administrative staff.

[13]           There is conflicting evidence about whether Gandy managers made the sexist, racist, and Islamophobic comments alleged by Ms. Ens. Where I make findings of fact about these issues, I will explain whose evidence I prefer, and why. In making these findings of fact, I start from the presumption that all the witnesses were telling the truth: Hardychuk v. Johnstone, 2012 BCSC 1359 at para. 10. Where a witness’s testimony conflicts with other evidence, I must assess the trustworthiness of the testimony “based on the veracity or sincerity of a witness and the accuracy of the evidence that the witness provides”: Bradshaw v. Stenner, 2010 BCSC 1398 at para. 186. A witness’s evidence may not be trustworthy because they have made a conscious decision not to tell the truth, or a witness may testify honestly but their evidence may not be reliable because of their inability to accurately recall or recount the event: R. v. HC, 2009 ONCA 56 at para. 42; Youyi Group Holdings (Canada) Ltd. v. Brentwood Lanes Canada Ltd., 2019 BCSC 739 at paras. 89-90.

[14]           In making findings of fact, I must determine which evidence is most plausible based on a balance of probabilities: Mr. S v. Cannae Holdings, 2018 BCHRT 47 at para. 12. In assessing which evidence is most plausible, I must consider each witness’s credibility and reliability. As Bradshaw says, this assessment must examine factors including the firmness of the witnesses’ memories, whether their evidence changes in cross-examination, whether their evidence seems unreasonable, impossible, or unlikely, and whether they have a motive to lie. I also consider whether supporting or contradictory evidence exists, and whether a witness’s evidence is internally and externally consistent: Harder v. Tupas-Singh and another, 2022 BCHRT 50 at para. 6. I must also consider whether each witness’s evidence was in “harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions”: Faryna v. Chorny, 1951 CanLII 252 (BCCA) at para. 11.

[15]           I can accept all, some, or none of a witness’s testimony, and I may attach different weight to different parts of a witness’s testimony: Meldrum v. Astro Ventures Ltd., 2013 BCHRT 144 at para. 4; Campbell v. Vancouver Police Board (No. 4), 2019 BCHRT 275 at para. 18.

[16]           My specific findings of fact about conflicting evidence are described below. For now, I will flag an issue with the reliability of Mr. Guild’s testimony in particular. He candidly admitted that he often forgot events that occurred during Ms. Ens’s employment, and he has difficulty recalling some events, due to his consumption of alcohol during the period of the complaint. This was most relevant to his evidence about when Ms. Ens told him she was sexually assaulted by a co-worker. She has consistently alleged that she told him shortly after the assault, in 2016. In December 2021, Mr. Guild made an affidavit, in support of an application by Gandy to dismiss this complaint, in which he said he was not aware of the sexual assault until Ms. Ens reported it to Taylor Gandy, in 2019. Both Ms. Ens and Taylor Gandy testified that Mr. Guild acknowledged, in 2019, that Ms. Ens told him about the assault in 2016. At the hearing Mr. Guild resiled from his affidavit, and admitted that he recalled Ms. Ens telling him about the assault in 2016, as she claims. Mr. Guild said he had previously forgotten about her 2016 disclosure because of his alcohol consumption at the time.

[17]           Based on Mr. Guild’s admitted difficulties recalling events from the period of the complaint, where his evidence differs from the testimony of other witnesses, I have generally preferred the evidence of those other witnesses.

B.     Promotion in 2019

[18]           Before coming to my findings of fact about the conflicting evidence, it is important to set out the evidence about Ms. Ens’s career trajectory within Gandy, and her complicated relationship with Mr. Guild, as much of her complaint is about her interactions with him.

[19]           There is no dispute that, from 2016 to 2019, Ms. Ens performed her job to Gandy’s satisfaction. In May 2019, Mr. Guild wrote a letter to Taylor and Chuck Gandy suggesting that Ms. Ens should be given a raise and additional responsibilities. In the letter he praised her performance at Gandy, in strong terms. He said she had taken on increasing responsibilities every time he asked, she has relieved pressure on other departments, made processes more efficient, and her work was done “thoroughly, quickly, and error free”. He praised her technical knowledge and said she could converse with technicians and suppliers on a level they respect, and she had helped other employees in this area. He said she had improved people’s perception of Gandy, based on her professionalism and “the fact that she’s a female in this male dominated industry.” He said she had remained loyal to Gandy despite “tricky situations” including the breakup of her dating relationship with a Gandy employee, who I refer to in this decision as AB[1], and the dismissal of another employee who she later dated.

[20]           Mr. Guild’s letter recommended that Ms. Ens should be promoted to a position as his assistant, as she would be an effective “buffer” in his relationship with Gandy’s dispatchers, which he described as occasionally testy. The letter described her maturity and said she understands the need to make difficult decisions at times, and does not shy away from difficult conversations. Mr. Guild wrote that she was “exactly the person we need to move forward with,” as he was contemplating retirement.

[21]           In July 2019, Ms. Ens was promoted to the position of Call Centre Manager. This was a newly created position, as Gandy was in the process of reorganising its administrative staff. The call centre was created in order to centralise some of the business’s administrative tasks, including dispatching technicians.

[22]           When Ms. Ens was promoted to Call Centre Manager she became part of Gandy’s leadership team. She reported to Taylor Gandy, and had four to six people in the call centre reporting to her. She and the other call centre staff continued to work closely with Mr. Guild, in his role as Service Manager.

C.     Ms. Ens’s relationship with Mr. Guild

[23]           Mr. Guild is considerably older than Ms. Ens, and there is no dispute that he saw himself as a mentor to her. Nor is it disputed that he and Ms. Ens had a generally friendly, productive relationship, at least until 2019. They sometimes exercised together outside of work, or stayed in the office after work hours to chat. Ms. Ens testified that Mr. Guild supported her in her work, including by helping her to respond to emails, and encouraging her to be more assertive with her co-workers. She acknowledged that she was not always punctual in getting to work, and she sometimes had to take time off due to migraines, and Mr. Guild never took issue with her punctuality, and had no problem accommodating her need for occasional time off. Gandy paid for Ms. Ens to attend business administration courses at university, in 2018 and 2019, and Mr. Guild supported this, as he saw her as his eventual successor in the Service Manager role. Mr. Guild testified that he wanted her to succeed, and all the evidence before me supports that.

[24]           However, there was evidence of tension in their relationship, even before 2019. Ms. Ens testified that throughout her relationship with Mr. Guild, she disagreed with his “fundamental beliefs”, and his comments and questions about Islam and women, among other topics, made her uncomfortable. She also testified that he would occasionally treat her unprofessionally, by using belittling names or tones of voice, or giving her the “silent treatment”. By early 2019, Ms. Ens asked Gandy to put her in a role where she would no longer report to Mr. Guild. This request was granted when she was promoted to Call Centre Manager.

[25]           The relationship between Ms. Ens and Mr. Guild deteriorated by late 2019. They continued to work closely together, even after she stopped reporting to him, as much of the call centre’s work supported the service department, which Mr. Guild managed. The records of Ms. Ens’s online messages with co-workers from early 2020 show that she became frustrated at him for undermining her authority in the call centre, and for giving conflicting instructions about how certain calls should be processed, and about other work issues. As described below, Mr. Guild sometimes made comments to Ms. Ens that she perceived as offensive, but she generally tolerated them, before 2020.

D.    Workplace comments about religion, race, and place of origin

[26]           Ms. Ens alleges that she faced inappropriate and discriminatory comments in the workplace, primarily from Mr. Guild and Chuck and Taylor Gandy. She says these comments were connected to her sex, race, religion, and place of origin.

[27]           I recognise that Ms. Ens’s complaint alleges discrimination based on the intersecting effects of her protected characteristics, as a non-practising Muslim woman of Middle Eastern descent. But for the purposes of setting out the relevant facts, I find it simpler to consider the evidence of alleged sexist comments separately from the evidence about comments allegedly connected to her other protected characteristics.

[28]           I begin with the comments alleged to have been connected to her race, religion, and place of origin. There is no dispute that Mr. Guild spoke to Ms. Ens regularly, during her employment, about her cultural and religious background and ancestry, and especially about Islam. Mr. Guild testified that he is a curious person by nature, and Ms. Ens was forthcoming about these topics.

[29]           Ms. Ens testified that many of her conversations with Mr. Guild about her background were unwelcome, and made her feel uncomfortable. She said, and Mr. Guild did not deny, that he would sometimes make broad assertions about what Muslims believed, and how she was affected by her cultural background. She said Mr. Guild had a general tone of condescension and disrespect about Islam and Middle Eastern culture, in their conversations. She testified that she did not enjoy these conversations, but she tolerated them in order to avoid conflict with Mr. Guild. There was no evidence that she ever told Mr. Guild the conversations were unwelcome.

[30]           All the witnesses, except Ms. Ens, denied that Mr. Guild or anyone else at Gandy ever asked them about issues related to their religious or cultural background. There was no evidence that Mr. Guild asked anyone other than Ms. Ens about these issues.

[31]           Mr. Guild testified that Ms. Ens sometimes initiated their conversations about topics related to race and religion. Ms. Ens denied this. She said these conversations were usually, if not always, initiated by Mr. Guild.

[32]           Based on the undisputed evidence, I accept that Mr. Guild and Ms. Ens frequently discussed her cultural and religious background, and that other Gandy employees were not asked about similar topics. I accept Ms. Ens’s evidence that most, if not all, of these discussions were initiated by Mr. Guild. While Mr. Guild suggested otherwise, I find his evidence is not reliable, considering that he admitted he may have forgotten the details of events related to this complaint. I also consider that none of the other witnesses suggested that Ms. Ens ever initiated any discussions about her religious or cultural background. Ms. Fussell and Ms. Mitchell denied that she ever did so, in the workplace or in their ongoing relationships with her.

[33]           In addition to these regular conversations with Mr. Guild, Ms. Ens gave evidence about jokes and comments that she perceived as offensive. I now turn to those jokes and comments.

a.     September 11 comments

[34]           Ms. Ens says that on multiple years while she worked at Gandy, on September 11, Taylor Gandy and Mr. Guild would wish her “happy holidays”, apparently as a joke about Muslims or people from the Middle East being responsible for or celebrating the terrorist attacks on September 11, 2001.

[35]           Mr. Guild testified he could not recall referring to September 11 as a holiday for Ms. Ens, but he was not certain. Considering his admitted memory lapses and his uncertainty, I accept Ms. Ens’s evidence that he did make such a comment.

[36]           Taylor Gandy denied making jokes about Ms. Ens celebrating September 11 as a holiday. He testified that he did not recall any racial slurs or sexist comments in the workplace. HoHowever, Ms. Harter testified about an occasion when she was speaking to a different Gandy employee, who was known to be Muslim, about whether he participated in the secular aspects of Christmas holidays. She said Taylor Gandy overheard this and made a joke suggesting the employee celebrated September 11 as a religious holiday.

[37]           I give considerable weight to Ms. Harter’s testimony. It was apparent to me that she did her best to recall events from many years earlier. She testified on behalf of Gandy, but she reasonably admitted to facts that were not in Gandy’s favour. Her evidence about hearing Taylor Gandy make a joke about Muslims celebrating September 11 as a holiday supports Ms. Ens’s claim that he made a similar joke to her.

[38]           For these reasons, I accept Ms. Ens’s evidence that Mr. Guild and Taylor Gandy made jokes suggesting Ms. Ens celebrated September 11 as a holiday, on multiple occasions while she worked at Gandy.

b.     “Terrorist” comment

[39]           Ms. Ens alleges another comment by Mr. Guild that she says was connected to her race, religion, and place of origin. On April 1, 2020, there was an incident involving Mr. Guild referring to a courier, who came to Gandy’s office to deliver an item, as a “terrorist”. There was no dispute about most of the relevant facts. Mr. Guild received the delivery, and spoke to the courier. The courier took issue with the address given for Gandy’s office in the delivery documents, and asked Mr. Guild to change the address format the next time a delivery was scheduled. As the courier was leaving the office, Mr. Guild said, “Don’t give me a lecture, you fucking terrorist.” Ms. Ens and Ms. Fussell were nearby and heard him say this.

[40]           There is a dispute about the courier’s appearance and ethnic background. Mr. Guild says he was white and had an Eastern European accent. Ms. Ens and Ms. Fussell say he had a dark complexion and was wearing a turban. Based on these observations, they say he was a person of South Asian descent. Mr. Guild denied that the courier was wearing a turban. There is no other evidence before me about the courier’s identity or appearance.

[41]           I do not understand Ms. Ens to suggest that the courier shared her race, religion, or place of origin, i.e. she does not suggest he was Middle Eastern or came from a Muslim background, like her. But she says the incident nevertheless had an impact on her that was connected to her protected characteristics, as she has experienced being called a terrorist when she wore a hijab, before she worked at Gandy.

[42]           Mr. Guild testified that he used the word “terrorist” because the courier was yelling at him and demanding that he obey the rules about the address format on the delivery documents. He said he associated this type of behaviour, and the courier’s accent, with media images of terrorists when he was growing up.

[43]           Gandy suggests that Ms. Ens and Ms. Fussell did not actually see the courier. I am not persuaded by Gandy’s submissions on this issue. There was no evidence that conflicted with their claims to have seen him. Mr. Guild testified that there was nobody nearby when he used the word “terrorist” but he did not dispute that Ms. Ens and Ms. Fussell heard him say it, or that they could have seen the courier. Taylor Gandy testified that when Ms. Ens and Ms. Fussell spoke to him about the incident, the following day, they said they saw the courier, and he was wearing a turban.

[44]           Gandy relies on evidence that Ms. Fussell, Ms. Ens, and another call centre employee discussed this incident in their online chat messages, immediately after they heard Mr. Guild use the word “terrorist”, and they did not refer to the courier’s appearance in their online messages. But Gandy did not explain why the absence of any reference to his appearance, in the online messages, means they did not see him, or that he was not wearing a turban. I give limited weight to the fact that the messages did not refer to his appearance.

[45]           I accept the evidence of Ms. Ens and Ms. Fussell, and I find the courier was wearing a turban. Ms. Ens and Ms. Fussell were firm in their recollection about this, under cross-examination. I also consider, again, Mr. Guild’s admitted difficulties remembering events relevant to this complaint.

E.     Workplace comments connected to sex

[46]           I now turn to the allegedly inappropriate and discriminatory comments by Mr. Guild and others that Ms. Ens says were connected to her sex as a woman.

[47]           In 2016, in the first few months of Ms. Ens’s employment with Gandy, she was dating another Gandy employee, AB. Ms. Ens testified that this was common knowledge, and a common subject of discussion, at the office. She referred to an incident when AB called in sick, and Chuck Gandy told other staff, in front of Ms. Ens, that AB “had too much Maryam this weekend.” Chuck Gandy did not testify at the hearing, and Gandy does not deny he made this statement.

[48]           Ms. Ens testified that even after her relationship with AB ended, there were frequent jokes about her sex life in the workplace, mainly by Mr. Guild. For example, she says Mr. Guild would compare her to a promiscuous character from a popular television show, and speculate about whether she had sex with people who were known to be her friends, including Ms. Fussell. Ms. Fussell corroborated the latter claim.

[49]           Ms. Ens testified that Mr. Guild and others sometimes commented on her body parts. She testified that at one point she got lip fillers, and Mr. Guild and others referred to them using the sexualised term, “dick-sucking lips”. She also testified that Mr. Guild would comment on what she ate and how much she exercised, and suggest that she had to be careful about her weight. And she referred to an incident where Chuck Gandy came into her office and leered at her chest while suggesting that another employee who was in her office was also there to leer at her. Again, Gandy does not deny this conduct by Chuck Gandy.

[50]           In his testimony, Mr. Guild denied that he used the sexualised term about her lips, but acknowledged that he talked to Ms. Ens about her lips, when she got lip fillers. He was not asked if he heard or made any other comments that could be related to her sex life.

[51]           In the absence of any denial by Mr. Guild, I accept that he made unsolicited comments about Ms. Ens’s sex life, in connection to her relationship with AB. I accept that he made jokes about her being promiscuous, during the later years of her employment, and speculated about her having sex with her friends, including Ms. Fussell. I also accept that he used the sexualised term about her lips, on at least one occasion. Although Mr. Guild denied using this term, he admitted discussing her lips. Considering his admitted memory issues, I prefer Ms. Ens’s evidence that he did use the sexualised term.

[52]           There was evidence that Mr. Guild made inappropriate comments about other women’s bodies as well. For example, Ms. Ens said he commented on the weight of other employees, and spoke about the size of a co-worker’s calves. Ms. Fussell testified about an incident where he commented on her “figure”, when she wore a tight sweater. She did not feel comfortable wearing that sweater to work again.

[53]           In Mr. Guild’s testimony, he acknowledged that he sometimes discussed peoples’ weight, but only when they asked for his advice about fitness and exercise. He acknowledged that he commented on the size of one co-worker’s calves, but he said this was not derogatory. He did not recall talking to Ms. Fussell about her sweater. He said he spoke to Ms. Ens and Ms. Harter about their weight, but that was in the context of discussions about fitness. However, Ms. Harter denied that she ever spoke to him about her weight or fitness.

[54]           I accept that Mr. Guild occasionally spoke to Ms. Ens about her own body and other women’s bodies, including the size of one co-worker’s calves, and Ms. Harter’s weight. I do not accept his claim that this was always in response to requests for advice about fitness issues. I accept Ms. Harter’s evidence that she never spoke to him about her weight. As noted above, I found Ms. Harter to be a credible witness, whereas Mr. Guild admitted that his memory of relevant events was faulty.

[55]           In addition to the comments about women, there was no dispute that Taylor Gandy used a common but offensive slur for gay men, in the workplace. Mr. Guild said he heard Taylor Gandy use the slur “from time to time”. Ms. Fussell and Ms. Harter also said they heard Taylor Gandy use the slur more than once. Ms. Harter said he used it in a joking way, to describe friends and colleagues. Taylor Gandy testified that he may have used it once in the workplace, in a joking way, to describe Chuck Gandy. Based on the evidence from multiple witnesses, including the witnesses called by Gandy, I find he used it more than once, in the workplace. There was no evidence before me about the dates when he did so, or any other details about his use of the slur.

F.      Ms. Ens’s complaints about the comments

[56]           Ms. Ens says she complained about Mr. Guild’s sexist, racist, and Islamophobic comments to Taylor and Chuck Gandy, but they took no action. Taylor Gandy confirmed she complained about Mr. Guild, but he testified that her complaints were vague and she did not give specific details—she only said things like he was rude or condescending.

[57]           Taylor Gandy said there was a formal process for making complaints about co-workers. The process required the employee who wanted to make the complaint to notify their manager, or alternatively to notify Taylor Gandy. He referred to an employee manual that set this out, but Gandy chose not to put the manual in evidence at the hearing.

[58]           There is limited evidence before me related to any complaints by Ms. Ens about Mr. Guild’s comments, other than the “terrorist” comment. Taylor Gandy says there were no other “official” complaints, as official complaints would have been documented by email. Ms. Ens provided evidence of one additional complaint about Mr. Guild, in an email she sent to Ms. Harter on April 12, 2018. The complaint alleged that Mr. Guild unreasonably berated her when she complained that she was not getting enough support in responding to customer calls, but it did not refer to any comments connected to her sex, race, religion, or place of origin, and it did not suggest that the conduct she was complaining about was related to those characteristics.

[59]           While there is no dispute that Ms. Ens complained to Taylor Gandy about Mr. Guild, there is no evidence before me that she complained about the September 11 comments, or Mr. Guild’s comments about her sex life, or his comments about her body or other women’s bodies. She testified that the comments about her body and her sex life made her uncomfortable, but did not prevent her from doing her job. She said she did not complain to Taylor Gandy about Mr. Guild’s comments related to her religious background because it was clear to her that Taylor Gandy shared Mr. Guild’s perspective about Islam, since he joked about Muslims celebrating September 11 as a holiday.

G.    Ms. Ens’s comments about co-workers

[60]           In response to Ms. Ens’s allegations about comments and jokes by Mr. Guild and others that contributed to poisoning the workplace, Gandy says her own comments about other workers show she endorsed and participated in the workplace culture.

[61]           There is no dispute that, after she became Call Centre Manager, Ms. Ens made inappropriate, sometimes offensive comments about co-workers, especially Mr. Guild, but also Ms. Harter and a specific call centre employee. She admitted that she created a group chat for other call centre employees, in order to vent her frustrations about the latter employee, and she said unkind things about them in the group chat. Additionally, Ms. Ens described Ms. Harter in highly offensive terms in a message to Mr. Guild, after Ms. Harter sent an email to Ms. Ens, on March 19, 2020, that Ms. Ens perceived as unreasonable.

[62]           Near the end of her time with Gandy, Ms. Ens’s messages to other call centre employees about Mr. Guild became especially negative, saying she wished “someone would kill Dave”, calling him stupid and “a mentor for what NOT to do”. The online messages show she encouraged Ms. Fussell and another call centre employee to participate in denigrating Mr. Guild.

H.    Sexual assault and response by Gandy

[63]           Having set out my findings of fact about the allegedly discriminatory comments made by Gandy managers, I now turn to the facts related to Gandy’s response to the sexual assault against her. There was no serious dispute about most of the relevant facts, at the hearing.

[64]           In or around November 2016, Ms. Ens was sexually assaulted by AB, outside the workplace. Ms. Ens reported the assault to Mr. Guild shortly after it happened.

[65]           Both Ms. Ens and Mr. Guild testified that, in the early years of her employment, they occasionally stayed at the office after work hours to chat. Ms. Ens talked to Mr. Guild about the assault during one of these after-hours chats. Mr. Guild was drinking alcohol at the time. Ms. Ens says that when she told him about the assault, he covered his ears with his hands and said he did not want to get involved.

[66]           While Mr. Guild admitted, at the hearing, that Ms. Ens reported the assault to him in 2016, he said he did not recall saying he did not want to get involved, or anything to that effect. But there is no dispute that he took no action in response to Ms. Ens telling him about the assault, and he did not tell anyone else about it. He testified that he now recalls that he could not believe it, and he did not know what to do. He admitted that he did not think, at the time, about how the assault may have affected Ms. Ens, and her ability to work in the same office as AB.

[67]           AB continued to work at Gandy, but Ms. Ens’s role was such that she did not generally have to work with him. Ms. Ens did not talk about the assault to anyone else at Gandy until 2019. She says Mr. Guild’s non-response discouraged her from reporting it again.

[68]           By the time Ms. Ens was promoted to Call Centre Manager, AB was also a manager, and she found herself having to work more closely with him than previously. She testified that this made her increasingly uncomfortable. Around September 2019, she decided to report the sexual assault, again, to Gandy management. She reported it to Taylor Gandy, in his office, with Mr. Guild present. She said it was difficult to talk to Taylor Gandy about it, because she knew he and AB were close. In his testimony, Taylor Gandy confirmed he has been friends with AB since high school, and they remain friends.

[69]           Ms. Ens testified that, when she reported the assault in 2019, Mr. Guild acknowledged that she had previously disclosed the assault to him, in 2016, and he apologised for his reaction at that time. In his testimony, Taylor Gandy confirmed that, when Ms. Ens reported the assault in 2019, Mr. Guild recalled that she had told him about in 2016.

[70]           A few days after Ms. Ens disclosed the assault to Taylor Gandy, she says she had to sit next to AB at a routine managers’ meeting. It is not clear, on the evidence before me, whether AB knew she had reported the assault to Taylor Gandy, at the time of the meeting.

[71]           By early October 2019, Gandy hired a lawyer to investigate the sexual assault allegation. Over the next few weeks after Ms. Ens reported the assault to Taylor Gandy, Gandy asked first Ms. Ens, and then AB, to go on paid leave or work from home, pending the investigation. Taylor Gandy said this was done to ensure AB and Ms. Ens did not have contact during the investigation. Ms. Ens testified that Chuck and Taylor Gandy told her to keep the investigation confidential, which meant she could not tell her co-workers why she was not at the office, and this created stress and confusion for her and her co-workers. She testified, and Gandy did not dispute, that Chuck Gandy later accused her of breaching the confidentiality of the investigation, by talking to a co-worker about it. She denies telling the co-worker about the investigation, and says she felt threatened by Chuck Gandy’s accusation.

[72]           On October 16, 2019, while AB was on leave, Taylor Gandy sent an email to Ms. Ens from AB’s email account, about a work issue. Ms. Ens said this was triggering and traumatising for her. Taylor Gandy said he was monitoring AB’s email account while AB was on leave, and it was not unusual for him to send emails from AB’s account, but he always identified himself in the text of the email. At the hearing he testified that he did not intend to trigger Ms. Ens when he emailed her from AB’s account, and he admitted he should not have done this.

[73]           In late October 2019, the investigator completed their investigation and submitted a report. AB’s employment was terminated, and Ms. Ens returned to work. There is no other evidence before me about the content of the report. No one who testified at the hearing saw the report. Taylor Gandy said it went to Chuck Gandy, who made the decision to fire AB, to ensure Ms. Ens felt safe at work. Ms. Ens says she was given no information about the substance of the report; she was only told that the investigator’s findings justified termination of AB.

[74]           Ms. Ens testified that after AB was terminated, she sensed a change in how Chuck and Taylor Gandy perceived her. She said they and other managers often found fault in her work, which they had not done previously. But she gave few examples of this, in her testimony.

I.       Termination in 2020

[75]           Gandy terminated Ms. Ens’s employment in April 2020. Much of the evidence at the hearing was about the days leading up to her termination. There was some dispute about what exactly happened, but most of the following facts are not disputed.

[76]           The incident where Mr. Guild referred to a courier as a terrorist happened on April 1, 2020. Either later that day or early the next day, Ms. Ens asked for a meeting with Taylor and Chuck Gandy and the call centre staff, to discuss Mr. Guild. Ms. Ens testified that she wanted to discuss the “terrorist” comment as well as her concerns about working with Mr. Guild more generally, including what she described as a pattern of Mr. Guild giving inconsistent directions to the call centre about how to respond to certain types of calls.

[77]           The meeting took place on April 2, 2020. Ms. Ens brought up the terrorist comment, and her concerns about Mr. Guild giving inconsistent directions. She testified that Chuck and Taylor Gandy appeared to take the terrorist comment seriously. Regarding her other concerns, Taylor Gandy encouraged her to communicate with Mr. Guild using email, so that there would be no dispute about his directions.

[78]           Ms. Ens and Ms. Fussell testified that during the meeting on April 2, Chuck Gandy said, among other things, that Ms. Ens was being emotional. In his testimony, Taylor Gandy confirmed this.

[79]           Taylor Gandy testified that he later spoke to Mr. Guild about his use of the word “terrorist” to describe the courier, and Mr. Guild acknowledged it was inappropriate and expressed remorse. He was not formally disciplined. Taylor Gandy testified that this was the first time he had heard of Mr. Guild using offensive language.

[80]           The next day, April 3, 2020, there was a dispute between Mr. Guild and Ms. Ens. It started when a customer called about their bill, and a call centre employee forwarded the call to Mr. Guild. After he took the call, he went to Ms. Ens’s office and told her it was not appropriate to forward that particular call to him. Ms. Ens claimed that he had previously directed that customer calls about billing should go to him, and Mr. Guild denied he had said this. An argument ensued, about what exactly were his instructions. The argument became heated, and Ms. Ens went to get Taylor Gandy, who was in a different part of the office, and asked him to intervene. She testified that she wanted Taylor Gandy to witness what she perceived as confirmation of her concerns about Mr. Guild’s inconsistent instructions, and his unreasonable response to the call being forwarded to him.

[81]           Taylor Gandy came to the part of the office where Ms. Ens and Mr. Guild worked, and attempted to mediate the dispute between them. Ms. Ens remained angry and became tearful, and eventually Taylor Gandy said the issue did not need to be resolved immediately, and everyone should just take a break. Shortly after this, Ms. Ens said she could not handle Mr. Guild, and she would be unable to work that day, so she had to go home. She left the office before the end of the workday.

[82]           Both Mr. Guild and Taylor Gandy testified that they had never seen Ms. Ens act that way before.

[83]           All the witnesses gave evidence about what happened on April 3, 2020, and there was conflicting testimony about the exact sequence of events. The parties provided extensive submissions about the reliability and credibility of the witnesses regarding these events in particular. Ms. Harter testified that she asked Ms. Fussell and another call centre employee to write down their observations of what happened. They each sent emails to Taylor Gandy with their accounts of the day. Gandy argues that the evidence shows Ms. Fussell and the other call centre employee colluded with Ms. Ens in preparing their emails to Taylor Gandy, and this means their accounts should be given no weight.

[84]           I find that I do not need to resolve all these issues, for the purposes of this decision. The most important facts are undisputed: Ms. Ens lost her temper, used harsh language about Mr. Guild in front of Taylor Gandy and others, and then left the office. She had never acted that way before.

[85]           Nor is there any serious dispute about what happened after Ms. Ens left the office, as her subsequent interactions with Gandy were mainly via email. On April 3, 2020, after she left the office, Ms. Ens wrote an email to Taylor and Chuck Gandy, apologising for losing her temper and explaining her view of how the situation arose. In the email she criticised Mr. Guild and recounted what happened leading up to her dispute with him earlier that day. The email went on to say:

…you know that it is not like me to blow up, and that normally I just get quietly upset. You also know what I’ve been through mentally and physically while at this company, with the situation that we dealt with in October having recently been brought to your attention. It’s been a really turbulent 6 months for me and I have not had any time to recover. One of the most traumatic events of my life was thoroughly reopened and although I have tried to process and heal without taking any time off I’m starting to see that this is no longer possible. Now, with the pandemic, things are even worse.

[86]           The email said Ms. Ens needed a break from work for mental health reasons, and she requested stress leave, or a temporary layoff, or a paid vacation. Taylor Gandy responded a few days later, saying Gandy could accommodate vacation time, but she had less than three days of vacation time accumulated, so she was expected to return to work after three days.

[87]           In her evidence, Ms. Ens said her conduct on April 3, 2020, was the culmination of long-standing frustrations with Mr. Guild, combined with stress about multiple factors, including her concern that Gandy management was treating her differently since she reported the sexual assault, and the onset of the pandemic.

[88]           On April 7, 2020, Ms. Ens saw a doctor and obtained a note saying she was unable to attend work until April 20, 2020. The note did not provide any further detail. When she sent it to Taylor Gandy, she said she had also requested a report from her counsellor, and she would send him the report once she received it.

[89]           Ms. Ens returned to work on April 20, 2020. Immediately upon arriving at Gandy’s office, she met with Taylor and Chuck Gandy and Ms. Harter, and Taylor Gandy told her they were firing her without cause.

[90]           On her way out of the office, after being informed she was terminated, Ms. Ens ran into Gandy’s bookkeeper, who was entering the office. When the bookkeeper asked why she was leaving, Ms. Ens said she had just been fired because she had reported the assault by AB.

[91]           Ms. Ens did not give Taylor Gandy, or anyone else at Gandy, the report from her counsellor, but a copy of the report was entered into evidence at the hearing. It was dated April 9, 2020, and it said Ms. Ens met the diagnostic criteria for generalised anxiety disorder and major depressive disorder, and “[r]ecent events at her employment and with the pandemic of COVID-19 has caused [Ms. Ens] significant distress and is impairing her ability to cope effectively with her symptoms.” The report recommended a two-week leave of absence, to reduce her symptoms.

[92]           Ms. Ens testified that she did not send the report to Gandy before she returned to work because she received it shortly before she was scheduled to return. She testified that the purpose of the report was to explain her need for time off, but when she was terminated upon her return to work, she thought there was no point in explaining why she needed time off. She did not feel it was necessary to provide further information about her mental disability at that point because Gandy management already knew about it, since she often talked about it in the workplace.

J.       Reasons for termination

[93]           Taylor Gandy testified that he made the decision to fire Ms. Ens immediately after he witnessed her conflict with Mr. Guild on April 3, 2020, because of her behaviour during that incident, and in recent months leading up to the incident. He said her yelling and “berating” of Mr. Guild, on April 3, was part of the reason he decided to fire her. In his testimony he said he had a clear recollection of her raising her voice, although his contemporaneous notes of the incident do not mention this.

[94]           Taylor Gandy testified that he told Chuck Gandy things were not working out with Ms. Ens, shortly after April 3, and Chuck Gandy agreed with his plan to terminate her employment.

[95]           Taylor Gandy said he wanted to promote a culture in which all departments got along and worked together well, and Ms. Ens’s behaviour had been contrary to that goal. He said she lacked leadership skills, she was not treating other managers with respect, and she was pitting the call centre against other staff. He also said the fact that she left the office on April 3 contributed to his decision to fire her, as he had not given her permission to leave before the end of the workday.

[96]           Taylor Gandy said Ms. Ens performed well in her pre-promotion work, but not as a manager. He testified that as a manager, she “built walls around her department”, and consequently call centre staff did not get along well with employees in other departments. He referred to arguments between call centre staff and other employees about who should pick up incoming calls. He also said he had concerns because her complaint about Mr. Guild’s conduct, on April 3, 2020, appeared to be unsubstantiated, based on his own observations of Mr. Guild on that date.

[97]           Taylor Gandy testified that Ms. Ens was never given any written warning, or disciplined, in relation to his concerns about her, or his concerns about how the call centre was operating under her management. He acknowledged she had no warning that her employment was at risk.

[98]           At some point after April 3, 2020, Gandy became aware of Ms. Ens’s messages with Ms. Fussell and other call centre staff, on an online messaging platform used by Gandy employees. In the messages, among other things, Ms. Ens made crude and unprofessional comments about Mr. Guild, and she encouraged Ms. Fussell and another call centre employee to refuse to work, near the beginning of the pandemic. However, Gandy does not rely on these messages as part of the reason for ending Ms. Ens’s employment. Taylor Gandy was clear, in his testimony, that he decided to fire her before he became aware of the messages.

III     ANALYSIS AND DECISION

[99]           Section 13 of the Code applies to complaints about discrimination in employment. Section 13(1) says a person must not refuse to continue to employ a person, or discriminate against a person regarding employment or any term or condition of employment, because of that person’s race, place of origin, religion, disability, or sex.

[100]       To prove her complaint under s. 13, Ms. Ens must establish that one or more of her disability (if she had one), sex, race, religion, or place of origin were factors in adverse treatment she experienced during her employment with Gandy, or in the termination of her employment: Moore v. British Columbia (Education), 2012 SCC 61 at para. 33.

[101]       There is no dispute that Ms. Ens has the protected characteristics of race, religion, place of origin or sex. Gandy does not deny she is a non-practising Muslim woman, of Middle Eastern descent. Gandy says she has not established she had a disability, within the meaning of the Code. Based on her allegations, the issues I must decide are:

a.      Did the comments and jokes made by Mr. Guild and others, regarding Ms. Ens’s race, religion, place of origin, or sex, create a poisoned work environment and adversely impact her employment?

b.      Did Gandy’s response to Ms. Ens’s report of a sexual assault by a co-worker adversely impact her in her employment, based on her sex?

c.       Was Ms. Ens’s termination connected to a Code-protected disability, or her race, religion, place of origin, or sex?

[102]       I consider each of these issues in turn.

A.    Poisoned workplace allegations

[103]       An employer is required to provide a respectful work environment that is free from discrimination: Robichaud v. Canada (Treasury Board), [1987] 2 S.C.R. 84. Workplace culture or “atmosphere” constitutes a term or condition of employment, for the purposes of s. 13 of the Code: Pillai v. Lafarge Canada Inc., 2003 BCHRT 26 at para. 68. Preventing employment discrimination is a shared responsibility among those who share a workplace: British Columbia Human Rights Tribunal v. Schrenk, 2017 SCC 62 [Schrenk] at para. 92. But the primary responsibility for ensuring a discrimination-free workplace rests with the person in control of the employee’s employment, a responsibility that is recognized in s. 44(2) of the Code: Schrenk at para. 56. Employers may be liable for discriminatory acts by their employees, even if they do not know of those acts: Pillai at para. 74.

[104]       In order to establish her allegation that the workplace was poisoned by discrimination, Ms. Ens must prove that specific incidents occurred that contravened the Code: Francis v. BC Ministry of Justice (No. 3), 2019 BCHRT 136 at para. 83. In Brar and others v. B.C. Veterinary Medical Association and Osborne, 2015 BCHRT 151, the Tribunal identified a number of relevant considerations:

a.      Even a single statement or incident, if sufficiently serious or substantial, can have an impact on a racialised person by creating a poisoned environment.

b.      Behaviour need not be directed at any one individual in order to create a poisoned environment.

c.       A person can experience a poisoned environment even if they are not a member of the racialised group that is the target.

Brar at para. 741, citing the Ontario Human Rights Commission’s 2005 Policy and Guidelines on Racism and Racial Discrimination

[105]       For the following reasons, I find Ms. Ens experienced a workplace poisoned by discrimination, throughout her time at Gandy. For ease of reference, I begin by summarising my findings of fact about the relevant incidents:

a.      Mr. Guild had regular discussions with Ms. Ens about her cultural and religious background, throughout her employment at Gandy. He did not do this with other employees. Ms. Ens rarely, if ever, initiated these discussions, and they often made her uncomfortable, although she did not say so to Mr. Guild.

b.      Mr. Guild and Taylor Gandy wished her “happy holidays” on September 11, on more than one occasion, as a joke about Muslims or people from the Middle East celebrating terrorism.

c.       Mr. Guild referred to a courier as a terrorist, on April 1, 2020. Ms. Ens heard this. The courier was wearing a turban.

d.      Chuck Gandy and others commented on Ms. Ens’s sex life during her relationship with AB, in 2016.

e.      Chuck Gandy leered at her chest, on at least occasion, and told her another employee was in her office to do the same thing.

f.        Mr. Guild made jokes about her being promiscuous and having sex with her friends, including Ms. Fussell.

g.       Mr. Guild made a sexualised reference to her lips, when she got lip fillers.

h.      Mr. Guild commented on her body and said she had to be careful about her weight.

i.        Mr. Guild occasionally made comments to Ms. Ens about other women’s bodies, and their weight, including Ms. Harter and at least one other co-worker.

j.        Chuck Gandy said Ms. Ens was being emotional when she complained about Mr. Guild in April 2020.

[106]       In the following paragraphs I describe the relevance of these findings.

[107]       The suggestion by Taylor Gandy and Mr. Guild that Muslims celebrate the terrorist attacks of September 11, 2001, contravenes the Code. There is no dispute that they meant it as a joke, but a joke about a person’s religious or cultural background can be discriminatory. In this case, the joke suggests that Muslims or people from Middle Eastern backgrounds support terrorism. The Tribunal has found that a workplace can be poisoned by remarks linking a person to terrorism because of their race, religion, or place of origin: Asad v. Kinexus Bioinformatics, 2008 BCHRT 293 at para. 878. More recently, the Tribunal has noted that Muslim people in Canada continue to be wrongly associated with terrorism and violence: Shahadat v. Northern School of Spa Therapies (No. 3), 2024 BCHRT 120 at para. 23.

[108]       Mr. Guild’s comments on Ms. Ens’s sex life and his jokes about her being promiscuous contravene the Code. These jokes targeted her based on her sex as a woman. A reasonable person would understand that the sexualised reference to Ms. Ens’s lips, or jokes about her being promiscuous, or suggestions that she had sex with her friends, are offensive and inappropriate in the workplace. This type of joke can poison a workplace by making employees uncomfortable and suggesting they are judged in terms of their sexuality rather than by their value and performance as employees.

[109]       Gandy did not argue that Ms. Ens participated in or welcomed these jokes and comments. I do not find that she did.

[110]       Although Ms. Ens could not recall the exact dates or details of many of the sexist comments she alleges, I accept that they happened throughout her time at Gandy, from when she was dating AB in 2016 to when she worked with Ms. Fussell, in 2019 and 2020.

[111]       Regarding Mr. Guild’s frequent conversations with Ms. Ens about her cultural and religious background, although Ms. Ens did not discourage them, I accept that they made her uncomfortable, especially considering the power dynamic between Mr. Guild—an older white man and a senior manager at Gandy—and Ms. Ens—a young woman of colour just starting out her career. I do not understand Ms. Ens to argue that Mr. Guild’s initiation of these conversations, on its own, establishes a contravention of the Code, but I accept the conversations are relevant to her poisoned workplace allegations, as they served as a regular reminder to Ms. Ens that her boss was preoccupied with her racial and religious characteristics.

[112]       Similarly, Ms. Ens does not appear to argue that Mr. Guild’s comments about other women’s bodies were instances of discrimination against Ms. Ens. But considering the evidence of frequent jokes about her sex life and references to her own body, they are relevant context to her allegations of discrimination, and they support a finding that her workplace was poisoned by discrimination.

[113]       Next, I consider Mr. Guild’s reference to the courier, in April 2020, as a terrorist. Ms. Ens submits that Mr. Guild’s use of this word was racially motivated. Gandy does not dispute that she has experienced being called a terrorist, when she was wearing a hijab. In Mr. Guild’s testimony, he acknowledged he was aware of stereotypes associating people from the Middle East with terrorism, and he was familiar with Ms. Ens’s Middle Eastern background, but he said he did not consider how using the term could affect her.

[114]       I return to the “terrorist” incident below, in my discussion of whether Gandy’s termination of Ms. Ens’s employment was discriminatory. For now I note that it served as a yet another reminder, to Ms. Ens, that her boss was preoccupied with people’s ethnic and religious backgrounds. Regardless of Mr. Guild’s intent, I accept that the impact on her was connected to her race, religion, and place of origin, as she has experienced being called a terrorist, for reasons related to these characteristics.

[115]       I also consider that when Ms. Ens complained to Chuck and Taylor Gandy about Mr. Guild, on April 2, 2020, Chuck Gandy called her emotional. On the evidence before me, it is unclear if Chuck Gandy called Ms. Ens emotional before or after she told him about Mr. Guild’s “terrorist” comment. Even if it was before, it is difficult to see how calling her emotional could have been appropriate or helpful, in the context of the meeting requested by Ms. Ens, to discuss the call centre staff’s concerns about Mr. Guild. Considering the context—a meeting between two male managers and their female subordinates to discuss concerns about a different male manager—this comment appears to rely on the tired and sexist trope that women act emotionally or hysterically when they express reasonable concerns or display a reasonable range of emotions.

[116]       I am not persuaded by Gandy’s argument that Ms. Ens was not adversely impacted by the comments and jokes described above, since she participated in the “culture” of Gandy herself. I first note that this argument appears to acknowledge that the workplace culture was unhealthy, at best: Gandy seems to suggest that Ms. Ens’s negative comments about Ms. Harter, her negative comments about a call centre employee in a group chat with other employees, and her profane and inappropriate messages about Mr. Guild, in her online chats with call centre employees, were a normal part of that culture.

[117]       In any event, even if Ms. Ens did participate in conduct similar to the offensive and discriminatory conduct of Mr. Guild, that would not deprive her of the protection of the Code. If Ms. Ens participated in discrimination against others then Gandy may have been entitled to discipline her, but she still had a right to a discrimination-free workplace.

[118]       Gandy also relies on Ms. Ens’s statement, in a text message to Ms. Harter in April 2000, that Gandy was “my favourite job I’ve ever had.” As I understand Gandy’s argument, it suggests this means she was not adversely impacted by the workplace culture. But the message in question was heavily qualified—Ms. Ens wrote that everything at Gandy was great, “other than [Mr. Guild]”. Immediately after saying it was her favourite job she has had, she said, “But regardless—I can’t possibly work with someone who doesn’t treat me or my staff with the basic respect and decency they would give to their dog.” I also consider that Ms. Ens was 22 years old when she started working at Gandy, and she had never worked in an office before. Finally, I consider that when Ms. Ens sent this message to Ms. Harter, she was still employed by Gandy, and she testified that she thought Ms. Harter might share her message with others, so she was reluctant to speak negatively about Gandy.

[119]       Considering all this context, I am not persuaded that Ms. Ens’s statement that Gandy was “my favourite job I’ve ever had” means she did not experience an adverse impact from the poisoned workplace. I accept her evidence that it was difficult for her to see the problems with the workplace culture while she was still immersed in it, considering her limited work experience. I also accept her evidence that, since she was still employed at Gandy when she sent the message, she did not want to share any negative feelings about Gandy with Ms. Harter. There is no evidence before me that Ms. Harter was Ms. Ens’s confidante, or that there was any particular reason for Ms. Ens to be candid with her. Finally, the message made clear that despite the positive aspects of the job, Ms. Ens felt humiliated and demeaned by Mr. Guild’s conduct.

[120]       Ms. Ens says Gandy treated her differently from other managers, especially AB and Mr. Guild, and this supports her poisoned workplace allegations. I am not persuaded by this submission. There is evidence that AB was given high levels of support, when he became a manager. But Gandy also provided significant support for Ms. Ens, including by paying for her university courses and sending her to external training sessions. Even if AB did receive more support than Ms. Ens, considering the undisputed fact that AB was a close friend of Taylor Gandy, I am not persuaded that this was connected to Ms. Ens’s protected characteristics.

[121]       Similarly for Mr. Guild, while there was evidence that Taylor and Chuck Gandy were more likely to trust him than Ms. Ens and call centre staff, I consider that they had worked with him for many years. Although my findings in this decision suggest they should not necessarily have trusted his professionalism, I am not persuaded that the fact that they did trust him was connected to Ms. Ens’s protected characteristics.

[122]       However, I find Ms. Ens’s other arguments about the poisoned workplace are more persuasive. In summary, her experience at Gandy was characterised by long-standing patterns of sexist jokes and comments directed at her, regular questions about her religious and cultural backgrounds to which her co-workers were not subjected, and occasional Islamophobic jokes, suggesting she was sympathetic to terrorism. The person most responsible for these problems—Mr. Guild—was her direct supervisor, for most of her time at Gandy. Mr. Guild’s supervisor—Taylor Gandy—participated in the Islamophobic jokes.

[123]       Considering these factors, even without giving significant weight to the alleged differences in treatment between Ms. Ens and other managers, I have no difficulty accepting Ms. Ens’s argument that her work environment was poisoned by adverse treatment that was connected to her sex, race, religion, and place of origin. I agree with Ms. Ens’s submission that the atmosphere or culture of the workplace was a term or condition of her employment, under s. 13 of the Code. In this case the evidence establishes that discriminatory jokes and comments were embedded in Gandy’s workplace culture, and this had a disproportionate effect on Ms. Ens, in which her sex, race, religion, and place of origin were factors.

[124]       For these reasons, I find Ms. Ens has justified her complaint of a poisoned work environment.

B.     Response to sexual assault disclosure

[125]       Next, I address Ms. Ens’s complaint about Gandy’s response to the sexual assault by AB. An employer’s inadequate response to an internal discrimination complaint may amount to a contravention of the Code: Laskowska v. Marineland of Canada Inc., 2005 HRTO 30 at paras. 50-52; The Employee v. The University and another (No. 2), 2020 BCHRT 12 at para. 272.

[126]       Ms. Ens argues that Gandy’s response to her reporting of the assault was discriminatory. In addition to Mr. Guild’s undisputed failure to take any action in response to her initial report in 2016, she takes issue with a number of aspects of the response to her report in 2019. These include the meeting where she was seated next to AB, shortly after she reported the assault to Taylor Gandy, the prohibition against telling her co-workers why she was off work during the investigation into the assault, and Taylor Gandy’s email to her from AB’s email account on October 16, 2019. She also alleges that Gandy management treated her poorly, and found fault with her work more frequently, after she reported the assault in 2019. She says her reporting of the assault was ultimately connected to her termination.

[127]       Gandy says it responded reasonably when Ms. Ens reported the assault to Taylor Gandy, and its termination of AB’s employment shows it took the matter seriously.

[128]       For the following reasons, I find Gandy’s response to the sexual assault was unreasonable, and resulted in discrimination against Ms. Ens.

[129]       To comply with their obligations under the Code, employers are required to respond reasonably and appropriately to complaints of discrimination, including sexual misconduct. In determining whether an employer has responded reasonably and appropriately, the Tribunal considers factors including whether the employer had a proper understanding of issues related to workplace discrimination, whether the employer treated the allegations seriously and acted sensitively in investigating them, and whether the complaint was resolved in a manner that ensured a healthy work environment for the person who made the complaint: Jamal v. TransLink Security Management and another (No. 2), 2020 BCHRT 146 at para. 106, citing Laskowska at paras. 52-53.

[130]       I begin by considering whether Gandy had a proper understanding of issues related to workplace discrimination. Considering all the evidence before me, including the evidence about Gandy’s formal policy as well as the conduct of Gandy management, I am not satisfied it did. This is most apparent in Mr. Guild’s failure to take any action in response to Ms. Ens’s initial disclosure of the assault. Mr. Guild was a senior employee and manager at Gandy. His non-response to an allegation of sexual assault by one employee against another did not reflect an understanding of how sexual misconduct can lead to discrimination in a workplace.

[131]       There is other evidence that Gandy management did not have an appropriate understanding of workplace discrimination, and the need to prevent it. This includes the inappropriate jokes by Taylor Gandy and Mr. Guild, suggesting Muslim employees or those from Middle Eastern backgrounds celebrated terrorist attacks as holidays. I also consider Taylor Gandy’s repeated use, in the workplace, of an offensive slur for gay men. While the slur and the jokes about September 11 had no connection to Ms. Ens’s report that she was assaulted by AB, they are relevant to Gandy’s response to her report because they suggest Gandy management did not understand the need to prevent discrimination. This could explain why Mr. Guild did not take any action in response to Ms. Ens’s report.

[132]       It is not disputed that Gandy had a formal policy regarding discrimination in the workplace, as part of its employee manual, but it was not put in evidence before me, and no one testified about its contents. In any event, a proper understanding of issues related to workplace discrimination requires more than the mere existence of an anti-discrimination policy. It requires managers to be familiar with the policy, and to demonstrate their understanding of relevant issues. There was no evidence before me that anyone at Gandy received training about discrimination or how to respond to it. The conduct of Gandy managers, described above, suggests they did not.

[133]       For all these reasons, I find Gandy did not have a proper understanding of issues related to workplace discrimination, when Ms. Ens reported the assault.

[134]       I now turn to the question of whether Gandy treated Ms. Ens’s allegation seriously and acted sensitively in investigating it. Regarding her initial report to Mr. Guild, Ms. Ens says he failed to consider how the assault, and having to work with AB in the future, would affect her employment, and failed to bring the issue to the attention of anyone else in management. Gandy does not deny any of this. I do not understand Gandy to dispute that Mr. Guild’s initial response to Ms. Ens’s allegations was insensitive and unreasonable.

[135]       There is no dispute that Mr. Guild’s memory was affected by his consumption of alcohol, at the time when Ms. Ens reported the assault to him, but I do not understand Gandy to suggest, and I do not find, that this excuses his inaction. In his testimony, Mr. Guild said he now recalls that when Ms. Ens told him about the assault, he could not believe it, and he did not know what to do. He did not offer any other explanation for why he did not take any action, or report Ms. Ens’s disclosure to anyone else. Based on Ms. Ens’s testimony that Mr. Guild covered his ears and said he did not want to get involved, it appears he thought it was not his business, and it was a personal matter between Ms. Ens and AB. This was incorrect. Mr. Guild ought to have known that being sexually assaulted by a co-worker would negatively affect Ms. Ens in her employment. He should have reported it to Chuck or Taylor Gandy. There was no evidence that Ms. Ens wanted him to keep it to himself.

[136]       Gandy’s response in 2019 was more robust. I am satisfied that, following Ms. Ens’s disclosure of the assault to Taylor Gandy, Gandy treated the allegation seriously and acted with reasonable sensitivity in investigating it. Gandy hired an external investigator, took steps to prevent AB from having any further contact with Ms. Ens, and kept the investigation confidential. These are some of the hallmarks of an appropriate response to an internal complaint of discrimination.

[137]       Some aspects of Gandy’s response in 2019 were imperfect. There is no dispute that Gandy began an investigation within a few days of Ms. Ens’s report to Taylor Gandy, but steps should have been taken to ensure Ms. Ens was not seated next to AB at a meeting after she reported the assault. There is no dispute that Gandy took steps to ensure Ms. Ens did not have to work with AB during the investigation, but Taylor Gandy’s email to Ms. Ens from AB’s account was highly inappropriate. Although Taylor Gandy identified himself as the sender in the text of the email, this did not mitigate the harm he caused by giving Ms. Ens the impression that AB was attempting to contact her. He should not have attempted to contact Ms. Ens using AB’s account at all, but he could have at least identified himself in the subject line, so that she would know the email was not from AB, before she opened it.

[138]       I understand Ms. Ens’s frustration about not being able to tell her co-workers why she was off work, during the investigation, but it was appropriate for Gandy to require her to keep her allegation confidential, pending the investigation. The requirement for confidentiality served to protect the integrity of the investigation, by helping ensure potential witnesses did not compare information before speaking to the investigator.

[139]       Despite some missteps, I accept that Gandy treated Ms. Ens’s allegation seriously in 2019, and that the external investigation process was reasonable. But considering that this was three years after she first reported the assault to Mr. Guild, I cannot find that Gandy’s response to the allegation, considered as a whole, was adequately sensitive, or that it reflected the seriousness of the allegation.

[140]       The next consideration is whether Gandy resolved Ms. Ens’s complaint in a manner that ensured a healthy work environment. Ms. Ens does not dispute that Gandy’s decision to dismiss AB helped ensure a healthier workplace for her, but she argues that Gandy’s subsequent treatment of her had the opposite effect. She says that after AB was terminated, Ms. Harter, Mr. Guild, and Chuck and Taylor Gandy began to treat her differently, and more frequently found fault with her work. Ms. Ens also says her reporting of the sexual assault, and the subsequent termination of AB, were factors in the termination of her employment, in that she was terminated for conduct that was connected to the sexual assault. Gandy denies that she was treated any differently after she reported the assault, and denies that the assault played any role in her termination.

[141]       On the evidence before me, I am not satisfied that Gandy treated Ms. Ens differently or found fault with her work more often after she reported the assault. Ms. Ens gave only one example of this in her final submissions: she referred to Chuck Gandy accusing her of breaching the confidentiality of the investigation, by talking to a co-worker about it, and she says this was reflective of a broader change in attitudes towards her after she reported the assault to Taylor Gandy. In her testimony, she also suggested that Ms. Harter’s email dated March 19, 2020, in which she reminded Ms. Ens that any discussion of call centre staff working from home had to include Chuck and Taylor Gandy, reflected a more critical approach to her management style than before she reported the assault to Taylor Gandy.

[142]        Regarding Chuck Gandy accusing her of breaching the confidentiality of the investigation, I am not satisfied that this establishes she was treated poorly because she reported the assault. Ms. Ens says she felt threatened by this accusation, but she does not suggest she faced any discipline or other consequences for it. Even if the accusation that Ms. Ens breached confidentiality was unfounded, that is not sufficient to prove that Chuck Gandy made the accusation in retaliation for Ms. Ens reporting the assault, or that it reflected a broader change in attitudes about her.

[143]       Regarding the email from Ms. Harter on March 19, 2020, I am not satisfied that it was connected to Ms. Ens’s reporting of the assault, as it does not appear that Ms. Harter knew of the assault, or the reasons for AB’s dismissal, at that time. The evidence before me is that the assault allegation and the investigation were kept confidential, and Gandy staff were not told why AB was terminated. On the evidence before me, I am not satisfied that Ms. Harter received any of this confidential information before Ms. Ens’s employment was terminated.

[144]       Ms. Ens testified that there were other examples of increased scrutiny of her work, after she reported the assault by AB, but she did not describe any of these examples. On the limited evidence she provided, I am not persuaded that Gandy employees or management treated her more negatively or applied stricter scrutiny to her work after she reported the assault.

[145]       Nonetheless, considering all the factors set out in Jamal, I find Gandy’s response to the sexual assault was unreasonable. Gandy management did not have a proper understanding of issues related to workplace discrimination. Although Gandy’s investigation into Ms. Ens’s 2019 report of the assault was reasonable, and the ensuing decision to dismiss AB was a reasonable way to promote a healthy work environment for Ms. Ens, I must also consider that when Ms. Ens initially reported the assault to Mr. Guild in 2016, there was no response at all. Gandy’s later response to her 2019 report to Taylor Gandy mitigates the unreasonableness of Mr. Guild’s initial failure to respond, but only to a degree.

[146]       I accept Ms. Ens’s testimony that Mr. Guild’s initial response discouraged her from reporting the assault to anyone else at Gandy, before 2019. The main impacts of Mr. Guild’s unreasonable response to her initial disclosure of the assault were that she had to keep working in the same workplace as AB for three years, and she had to revisit this traumatic experience three years after it first happened, when Gandy finally investigated. I accept that this had an adverse impact on her, regarding the conditions of her employment, in which her sex was a factor. Gandy’s response to the assault, considered as a whole, was discriminatory and contributed to the poisoning of the workplace.

[147]       I address whether Ms. Ens’s reporting of the assault was a factor in her termination in the next section of this decision.

C.     Termination

[148]       Ms. Ens argues that her termination was discriminatory because the conduct for which she was terminated was connected to a disability, and to the discrimination she previously experienced in her employment, in connection with her sex, race, religion, and place of origin.

[149]       Where an employee is terminated in the context of a discriminatory work environment, careful attention must be paid to ensure there is no connection between the termination and the discriminatory environment: Nelson v. Goodberry Restaurant Group Ltd. dba Buono Osteria and others, 2021 BCHRT 137, at para. 104; Vanderputten v. Seydaco Packaging Corp,2012 HRTO 1977 at para. 81, citing Smith v. Mardana Ltd. (c.o.b. Mr. Lube),2005 CanLII 2811 (ON SCDC) at para. 24. When an employee acts out as a result of a discriminatory work environment, terminating them for their conduct may be a violation of the Code. Therefore I must determine whether the conduct for which Ms. Ens was terminated was the result of the discrimination she experienced while employed at Gandy.

[150]       Gandy does not say, in its submissions, why it terminated Ms. Ens’s employment. Taylor Gandy’s evidence was that it was because of her conduct on April 3, 2020, and more generally since she became a manager in July 2019. He cited concerns about her leadership skills and professionalism, and about the call centre not working well with Gandy’s other departments, under her management.

[151]       For the following reasons, I am not satisfied that Ms. Ens’s disability was a factor in her conduct on April 3, 2020, but I find that conduct was due, in part, to discriminatory treatment in her employment, on the grounds of her sex, race, religion, and place of origin. In this sense, Ms. Ens’s protected characteristics were a factor in Gandy’s decision to dismiss her.

[152]       There is support, in the evidence before me, for Taylor Gandy’s concerns about Ms. Ens’s performance as a manager. Some of her messages with call centre staff were unprofessional and inappropriate. Although Taylor Gandy made the decision to terminate her before he saw those messages, I still find them relevant as they corroborate his concerns that she “built walls” between the call centre and other departments. Another example of Ms. Ens’s difficulties in cooperating with other departments can be seen in her response to Ms. Harter’s email dated March 19, 2020, about the possibility of working remotely. Ms. Ens did not suggest, at the hearing, that Ms. Harter’s email was unreasonable. It was certainly civil. Yet in response Ms. Ens called Ms. Harter a highly offensive term, in a message to Mr. Guild, and her reply to Ms. Harter was more aggressive, in its tone and content, than Ms. Harter’s email seemed to warrant.

[153]       Although the witnesses differed in their recollections about what exactly happened on April 3, 2020, there is no dispute that Ms. Ens lost her temper, used harsh language about Mr. Guild in front of other staff, and then left the office before the end of the workday. Ms. Ens testified that this type of conduct was not unusual, for Gandy managers, but she did not give any specific examples of similar conduct by other managers. I accept that her conduct was not consistent with Gandy’s expectations for managers.

[154]       On the other hand, there is also evidence that could support an inference that Ms. Ens’s conduct on April 3, 2020, was partly the result of discrimination she experienced while employed at Gandy. In the following paragraphs, I first explain why I am not satisfied her conduct was connected to her disability, before setting out the reasons why I find it was connected to her sex, race, religion, and place of origin.

1.      Disability

[155]       As noted above, there is no dispute that Gandy terminated Ms. Ens’s employment due, in part, to her conduct on April 3, 2020. As I understand her argument, Ms. Ens says this conduct was connected to her mental disability, among other factors, and since the conduct that led to her termination was connected to her disability, her disability was a factor in her termination. She argues that Gandy had a duty to inquire about this connection and consider whether she was entitled to accommodation of her disability, before ending her employment.

[156]       Gandy argues that Ms. Ens has not met her burden of proving she had a mental disability within the meaning of the Code. Gandy says the only evidence she had a disability is the report from her counsellor, from April 2020, and it should be given limited weight because the counsellor was not a witness at the hearing.

[157]       For the following reasons, I find that even if Ms. Ens had a disability, she has not established a connection between her disability and the termination of her employment. She has not proven, on a balance of probabilities, that her conduct on April 3, 2020, was connected to a disability.

[158]       Ms. Ens does not say, in her submissions, what evidence supports her claim that her conduct on April 3, 2020, was connected to her disability. I have considered the evidence that could support this connection, including Ms. Ens’s letter to Taylor Gandy dated April 3, 2020, and her counsellor’s report dated April 9, 2020. Ms. Ens’s letter to Taylor Gandy said she did not normally “blow up” but she had been facing high levels of stress due to the investigation into the assault by AB, and the pandemic. It went on to say she needed time off to maintain her mental health. The counsellor’s report said Ms. Ens meets the criteria for diagnoses of generalised anxiety disorder and major depressive disorder. It said the pandemic and recent events at work caused her significant distress and impaired her ability to cope with her symptoms.

[159]       I have also considered Ms. Ens’s testimony. She says she has anxiety and depression, and her mental health was deteriorating, in early 2020, and this impacted her ability to discern what was appropriate in the workplace.

[160]       Based on her testimony and the evidence she provided, I understand Ms. Ens’s argument to be that on April 3, 2020, she lost her temper and behaved inappropriately because of her disability, which made it more difficult for her to cope with the stress of the pandemic and stressful events at work. However, I find the evidence she provided is insufficient to support this claim. I do not doubt that Ms. Ens was experiencing elevated stress, at the time, but even if I accept that she had a disability, she has not proven her claim that her conduct on April 3, 2020, was a result of her disability.

[161]       The counsellor’s letter refers to Ms. Ens’s impaired ability to cope with her symptoms, but it does not say what those symptoms are. It suggests her disability affects her ability to cope with stress, but it does not comment on her conduct on April 3, 2020. Ms. Ens’s email to Taylor Gandy, on April 3, 2020, said she experienced intense stress in recent months, and she had to prioritise her mental health and take time to process the trauma of the assault, following the investigation in 2019. But the email did not explain how her behaviour on April 3, 2020, was connected to the symptoms of her disability, and Ms. Ens did not address this connection in her testimony.

[162]       Even if mental health conditions like anxiety and depression can make a person more prone to anger, and impact their ability to cope with stress, that does not mean that every time a person with these conditions gets angry it is due to their disability. I cannot assume that a person who has anxiety or depression will violate workplace rules because of those conditions. The Tribunal assumes the opposite: that people with disabilities can perform their jobs and conduct themselves professionally, even during difficult times: Martin v. Chevrolet Oldsmobile, 2001 BCHRT 37 at para. 28; Harris v. Rize Alliance Properties and another, 2019 BCHRT 223 at para. 40. 

[163]       In the absence of medical or other information explaining the connection between Ms. Ens’s disability and her conduct on April 3, 2020, I am not satisfied that there was such a connection. This means she has not proven, on a balance of probabilities, that her disability was a factor in her termination.

[164]       Ms. Ens says Gandy had a duty to inquire about whether her conduct on April 3, 2020, was connected to her disability, before ending her employment. She cites Martin, where the Tribunal found that, if an employer is or ought to be aware of a relationship between an employee’s disability and their work performance, the employer must inquire into that relationship before making an adverse decision based on the employee’s performance. The Tribunal explained this further in Lewis v. Hour of Power Canada and another, 2018 BCHRT 251:

If there is reason for an employer to be aware of a possible relationship between a disability and work performance problems, an employer who does not make further inquiries before taking action that adversely affects the employee runs the risk of a finding of discrimination, if there is indeed a relationship between the performance problems and a disability. Thus, an employer who is reasonably aware that there may be a disability requiring accommodation cannot ignore that fact and proceed to termination without running the risk of a Code violation.

[165]       Taylor Gandy and Mr. Guild both testified that Ms. Ens’s conduct on April 3, 2020, was uncharacteristic for her, and they had never seen her act like that before. Anytime these circumstances apply, an employer is well advised to make inquiries about the reasons for an employee’s conduct, before making adverse decisions about their employment. However, the duty to inquire does not create stand-alone rights. As Lewis indicates, an employer who does not fulfill the duty to inquire faces the risk of a finding of discrimination, but only if there is indeed a relationship between the employee’s performance problems and their disability. At a hearing, the burden is on the employee to prove a connection between their disability and the performance problems. Since Ms. Ens has not established this connection, she cannot succeed in a complaint about a failure to inquire about her disability.

2.      Sex, race, place of origin, and religion

[166]       In addition to her argument based on disability, Ms. Ens argues that her termination was connected to her race, religion, place of origin, and sex. She says her mental disability was aggravated by Gandy’s discriminatory actions, including the response to her sexual assault and the jokes and comments about her sex life and her religious and cultural background. I understand her argument to be that her conduct on April 3, 2020, which led to her termination, was due in part to stress arising from these factors. She cites Radek v. Henderson Development (Canada) and Securiguard Services (No. 3), 2005 BCHRT 302, where the Tribunal found that a respondent may not justify adverse treatment of a complainant based on their angry reaction to discriminatory treatment: Radek at para. 484.

[167]       Gandy does not specifically respond to these arguments, in its final submissions. It says Ms. Ens was an active participant and endorser of the culture at Gandy, and it responded appropriately to her reporting of the sexual assault. I have already explained why I reject these submissions.

[168]       In the months leading up to her termination, it is clear that Ms. Ens became uncomfortable working with Mr. Guild. Although her job required her to work with him regularly, her communications with call centre staff make it clear she did not welcome this, and there is no dispute that she repeatedly complained about him to Taylor Gandy. Even if her complaints lacked specifics, as Taylor Gandy testified, the fact that she complained shows she was struggling to work with Mr. Guild. Considering Mr. Guild’s comments about Ms. Ens’s sex life, appearance, and her religious and cultural background, her discomfort working with him was understandable.

[169]       In this context, I find the short time between Mr. Guild’s “terrorist” comment and Ms. Ens losing her temper at him supports a connection between her conduct on that date and the discrimination she experienced at Gandy. Her admitted “blow up” at Mr. Guild occurred just two days after the terrorist comment, and just one day after she told Taylor and Chuck Gandy about her concerns with this comment.

[170]       Ms. Ens’s testimony also supports a connection between the terrorist comment and her conduct on April 3, 2020. She said the comment was shocking and jarring to her, and it affected her more than other inappropriate comments she had heard from Mr. Guild, because of her own experience being called a terrorist when she wore a religious head covering.

[171]       Ms. Ens also testified about the connection between the sexual assault by AB and her conduct in the months leading up to her termination. She said the investigation reopened this traumatic event for her, and it affected her work and her relationships with co-workers. This was most clear in the context of her relationship with Mr. Guild, which appeared to deteriorate significantly, in late 2019 and early 2020. I am satisfied that her stress related to the sexual assault investigation and its aftermath was one of the factors affecting her ability to maintain her professionalism, on April 3, 2020.

[172]       Considering all the evidence before me, I accept Ms. Ens’s submission that her reaction to Mr. Guild on April 3, 2020, was due, in part, to the accumulated effect of racist, sexist, and dismissive remarks in the workplace, mainly by Mr. Guild. The timing of the terrorist comment, in the context of a history of Islamophobic jokes by Mr. Guild and others, and the evidence of the ongoing impact of the sexual assault on Ms. Ens, all support a conclusion that she “snapped”, due in part to these factors.

[173]       I now return to the duty to inquire. The duty most often requires inquiry about the connection between an employee’s work performance or conduct and their disability, but it can also apply in relation to other characteristics protected by the Code, if the circumstances are such that a reasonable employer ought to have perceived that conduct or performance is affected by issues related to those characteristics. As I said above, the duty to inquire does not create stand-alone rights, and a violation of the duty cannot ground a finding of discrimination unless the complainant establishes that the conduct for which they faced adverse consequences was connected to their protected characteristics. But in this case I have found there was such a connection.

[174]       An employer is not required, every time an employee behaves badly, to attempt to read their mind or speculate about whether the reasons for their behaviour could possibly be related to their protected characteristics. But in some circumstances, compliance with the Code requires inquiries. There is no dispute this was the first time Ms. Ens had ever behaved as she did on April 3, 2020, since she started working at Gandy. It happened the day after she reported to Chuck and Taylor Gandy that Mr. Guild made a comment that she perceived as racist, and not long after the investigation into the sexual assault. In her email to Taylor Gandy on April 3, 2020, Ms. Ens explicitly suggested her conduct that day was connected to reporting the sexual assault, and then having to process that traumatic event during the investigation. In these circumstances, Gandy ought to have made inquiries about whether her conduct was connected to those events, before deciding to fire her.

[175]       For these reasons I find Ms. Ens’s race, religion, place of origin, and sex were factors in Gandy’s decision to terminate her, and the termination was discriminatory.

IV    REMEDIES

[176]       Having found that Ms. Ens’s complaint is justified, I must order Gandy to cease the contravention of the Code and refrain from committing a similar contravention: s. 37(2)(a) of the Code.

[177]       Ms. Ens does not request compensation for lost wages or other expenses. There is no dispute that, about four weeks after she stopped working for Gandy, she found new employment, with a higher salary than she earned at Gandy.

[178]       Section 37(2)(b)(ii) of the Code says that if the Tribunal finds a complaint is justified, it may order compensation for injury to dignity, feelings and self respect. In forms filed before the hearing, Ms. Ens indicated she would seek an order for compensation for injury to dignity in the amount of $20,000. In her final submissions, she requested $30,000. Gandy did not take issue with the increase in the amount she sought, but argues that if I find her complaint was justified, the appropriate award for injury to dignity is no more than $5,000.

[179]       A violation of a person’s human rights is a violation of their dignity: Nelson at para. 33. The purpose of an injury to dignity award is to address this harm. Determining the amount of an injury to dignity award depends on the specific facts and circumstances in any given case: Gichuru v. Law Society of British Columbia (No. 2), 2011 BCHRT 185 at para. 260, affirmed in 2014 BCCA 396. In making an injury to dignity award the Tribunal considers factors including the nature of the discrimination, the complainant’s social context or vulnerability, and the impact the discrimination had on the complainant: Oger v. Whatcott (No. 7), 2019 BCHRT 58at para. 225. Considering these factors, I am satisfied that Ms. Ens is entitled to $30,000 for injury to dignity. In this section I explain my reasons for this finding.

A.    Nature of the discrimination

[180]       I begin with the nature of the discrimination. Gandy’s conduct which I have found to be discriminatory consists of failing to provide a discrimination-free workplace, and tolerating a workplace poisoned by racist, sexist, and Islamophobic discrimination; failing to respond reasonably to Ms. Ens’s sexual assault complaint; and ultimately terminating Ms. Ens’s employment based on conduct that was connected to the discrimination on the grounds of her sex, race, religion, and place of origin, without inquiring about that connection. These three forms of discrimination were closely related: the inadequate response to the assault contributed to the poisoned workplace, and the termination of Ms. Ens’s employment was due, in part, to her conduct that was connected to the poisoned workplace and to Gandy’s response to the assault.

[181]       Gandy’s discriminatory conduct took place from shortly after Ms. Ens started working there, in 2016, until her termination in 2020. Although the evidence before me does not establish the frequency of the comments that poisoned her workplace, I am satisfied they occurred throughout her employment. Gandy’s inadequate response to the assault—or more specifically, Mr. Guild’s failure to respond to it at all—affected her during almost the entire period of her employment, until Gandy finally responded in a more robust way in 2019. The lengthy time period of the discrimination supports a higher award for injury to dignity.

[182]       Any form of discrimination in a person’s employment is a serious matter. The Tribunal has often cited the Supreme Court of Canada’s observations about the importance of a person’s employment not only for their financial support, but also for their sense of identity, self-worth, and emotional well-being: Reference Re Public Service Employee Relations Act (Alta.), 1987 CanLII 88 (SCC) at para. 91 (per Dickson CJ). In this case, the poisoned workplace and inadequate response to the assault prevented Ms. Ens from fully enjoying the sense of well-being that should have been the result of her undisputably impressive work performance during most of her time at Gandy, and she ultimately lost her job for discriminatory reasons. Because of the significance of employment to a person’s dignity and well-being, cases which involve the loss of employment have often attracted the top end of the Tribunal’s awards for injury to dignity.

B.     Social context and vulnerability to discrimination

[183]       Under this heading I consider the intersectional nature of the discrimination. In my findings of fact about the comments that poisoned her work environment I considered the comments about Ms. Ens’s sex separately from the comments related to her race, religion, and place of origin, but I recognise she was especially vulnerable to discrimination due to her overlapping protected characteristics, as a non-practising Muslim woman of Middle Eastern descent.

[184]       I also consider Ms. Ens’s vulnerability to discrimination due to her youth and relative inexperience in the working world, when she worked for Gandy, and the power imbalance between her and the people most responsible for the discrimination, including Mr. Guild and Taylor and Chuck Gandy. They were Gandy’s most senior employees. She was at the beginning of her career. As I have noted, her job at Gandy was her first office job. She testified about how she did not initially realise that the workplace culture there was inappropriate or unusual. This made her particularly vulnerable to discrimination.

[185]       Although Ms. Ens does not argue that Gandy is liable for the sexual assault, the fact that she experienced a sexual assault by a co-worker is relevant to the social context of the complaint. The Tribunal has affirmed that an employer’s response after a complaint of sexual misconduct is very important to the impact of the event on the complainant and that sexual misconduct remains a very substantial issue for women in many contexts, including the workplace: The Sales Associate v. Aurora Biomed Inc. and others (No. 3), 2021 BCHRT 5 at para. 125; Hawknes v. Vancouver Public Library (No. 2), 2017 BCHRT 250 at para. 114.

[186]       For these reasons, I find Ms. Ens was particularly vulnerable to discrimination, and the social context supports a higher award for injury to dignity.

C.     Impact of the discrimination

[187]       I accept that the discrimination had a serious impact on Ms. Ens, but on the evidence before me, it did not involve the more profound and long-lasting impacts that are typically seen in cases where the Tribunal awarded significant amounts for injury to dignity.

[188]       Ms. Ens testified that she still talks to her counsellor about the impact that working at Gandy had on her, but she did not provide further information about that impact. She said she cried after she was fired, but she did not describe how her experience at Gandy continues to affect her.

[189]       In terms of the material impact of the discriminatory termination of Ms. Ens’s employment, I consider that upon leaving Gandy she promptly found new employment, making more money, in a workplace where she says she felt more comfortable and did not face any of the forms of discrimination she experienced at Gandy. This speaks to Ms. Ens’s resilience, determination, and competence. Of course it does not mitigate the seriousness of Gandy’s conduct, but it shows the impact of the discrimination was less profound than in some of the Tribunal’s cases involving higher awards for injury to dignity.

[190]       Gandy says the award for injury to dignity should be nominal because Ms. Ens participated in the toxic elements of Gandy’s workplace culture, in her mean-spirited online messages about another call centre employee, and Ms. Harter, and Mr. Guild. Gandy argues that a high award would effectively condone her misconduct.

[191]       Ms. Ens does not deny that she made mean-spirited comments about her co-workers at times, but she says she was just trying to fit in with the culture at Gandy, and she should not be penalised for doing so, in the context of her human rights complaint.

[192]       I am not persuaded that Ms. Ens’s negative comments about others warrant reduction of the award for injury to dignity. As I said earlier, employees who participate in a toxic workplace do not give up their protections under the Code. I do not condone her negative comments but I do not find they were so serious or harmful that she should be deprived of a meaningful remedy for the discrimination she experienced.

[193]       In support of its argument that the impact of the discrimination was not significant, Gandy relies on Ms. Ens’s statement to Ms. Harter about her job at Gandy being “my favourite job I’ve ever had.” I explained earlier why I do not give this message much weight: Ms. Ens’s statement was qualified by her strong negative feelings about Mr. Guild, she did not want to share her honest feelings about the job with Ms. Harter, and in any event she had not had many jobs up to that point in her career, so saying this one was her favourite was not necessarily a strong statement.

[194]       Gandy also relies on text messages Ms. Ens sent to Ms. Harter, after Gandy fired her, saying that she was planning to quit the job anyway and go back to school. I note Ms. Ens was not taken to these statements in cross-examination, so I do not give them significant weight as she was not asked about their context. In any event, all the evidence before me suggests that if she was planning to quit, it was at least partly due to her negative feelings about Mr. Guild, which were connected to the discrimination she experienced.

[195]       At the same time, I also recognise that not all of Ms. Ens’s problems with Mr. Guild were connected to her protected characteristics. It is clear that she struggled to work with him at times because he gave what she perceived as inconsistent directions. Whether or not her perception was accurate, there is no basis on which I could find his inconsistent directions were connected to her protected characteristics. In considering the impact of his actions on her, I am mindful that not all the conduct to which Ms. Ens objects was discriminatory.

D.    Case law and conclusion on injury to dignity

[196]       I will now review some of the cases cited by the parties as relevant authorities about injury to dignity awards. Gandy says this case is similar to Harder and Prom v. Verka Food International Ltd. and another, 2023 BCHRT 130. In Prom the Tribunal found the complainant’s age was a factor in the respondent’s decision to end his employment, but said the respondent’s conduct was not particularly egregious, and noted the complainant was a short-term employee, and there was no evidence about the impact of the termination on his mental health. The Tribunal ordered compensation for injury to dignity in the amount of $3,000. In Harder, the Tribunal found the complainant’s age was a factor, although not the predominant factor, in the respondent’s decision to end her employment, and accepted that her termination impacted her emotionally, but not severely or for a lengthy period. The injury to dignity award was $4,000.

[197]       Gandy also refers to Benton v. Richmond Plastics, 2020 BCHRT 82, where the injury to dignity award was $30,000, but argues that the facts of Ms. Ens’s complaint do not justify such a high award. In Benton, the complainant was fired on her first day of work with the respondent, and the Tribunal accepted that the reason she was fired was directly connected to her disability: she was told her medications and mental health issues made a senior employee feel uncomfortable. The Tribunal accepted the complainant’s evidence about the serious impact of the termination on her mental health, and emphasised the significance of the termination of a person’s employment, but distinguished the complainant’s circumstances from cases involving termination after long-term employment. In this regard I note that Ms. Ens was employed by Gandy for approximately four years, which at the time of her termination was most of her adult life.

[198]       In my view, the discrimination against Ms. Ens was more egregious in nature than in Prom, Harder, and Benton, considering the lengthy period of the discrimination against Ms. Ens and the multiple, intersecting grounds and forms of discrimination. The social context also supports a higher award than in those cases, as Ms. Ens was more vulnerable to discrimination based on her multiple, intersecting protected characteristics and the fact that she was a young worker, starting out her career, who faced discrimination by the most senior managers at Gandy. But it does not appear the impact of the discrimination on Ms. Ens was as serious as in Benton.

[199]       Ms. Ens relies on The Sales Associate, among other decisions. In The Sales Associate, the Tribunal found the complainant was the victim of sexual harassment, among other discriminatory conduct, but the harassment was “on the milder end of the spectrum”. The Tribunal accepted the complainant was vulnerable, as it was her first sales job, she was under financial strain, she had previously been the victim of a sexual assault, and the termination had a significant impact on her mental health. The injury to dignity award was $20,000.

[200]       In my view, the nature of the discrimination in this case was more serious than in The Sales Associate, based on the lengthy period and the multiple, intersecting grounds and forms of discrimination experienced by Ms. Ens. The impact on her appears to have been less serious than in The Sales Associate, as there was no evidence before me that Ms. Ens experienced any financial strain, due to the discrimination, and there was little evidence about the impact on her mental health. Nevertheless, I am satisfied a higher award than in The Sales Associate is appropriate, considering the more egregious nature of the discrimination, and Ms. Ens’s increased vulnerability based on her intersecting protected characteristics.

[201]       Considering all the cases cited by the parties, and giving significant weight to the egregious nature of the discrimination and the social context that made Ms. Ens especially vulnerable to discrimination, I find she is entitled to the injury to dignity award she seeks, in the amount of $30,000.

[202]       I order the two respondents, 0704121 BC Ltd. dba Gandy HVAC and Gandy Installations and Gandy Installations Ltd. dba Gandy Installations, shall be jointly and severally liable for this amount. The parties treated them as a single entity throughout the hearing. I did not hear evidence about which of the two companies was Ms. Ens’s formal employer, but there was no dispute that the two companies are closely related and controlled by the same people.

V       CONCLUSION

[203]       Gandy discriminated against Ms. Ens regarding employment, on the basis of her sex, race, religion, and place of origin, in violation of s. 13 of the Code. Her complaint is justified.

[204]       Under s. 37(2)(a) of the Code, I order Gandy to cease the contravention of the Code and refrain from committing the same or similar contraventions.

[205]       Under s. 37(2)(d)(iii), I order 0704121 BC Ltd. dba Gandy HVAC and Gandy Installations and Gandy Installations Ltd. dba Gandy Installations, jointly and severally, to pay Ms. Ens $30,000 as compensation for injury to her dignity, feelings, and self-respect, plus post-judgment interest on this award until paid in full, based on the rates set out in the Court Order Interest Act.

Andrew Robb

Tribunal Member

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[1] Not his real initials. I have anonymised AB’s identity because he did not have an opportunity to respond to the evidence about him.