Matembe v. South Coast British Columbia Transportation Authority (TransLink) and another, 2025 BCHRT 279
Date Issued: October 31, 2025
File: CS-006121
Indexed as: Matembe v. South Coast British Columbia Transportation Authority (TransLink) and another, 2025 BCHRT 279
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:
Gilbert Matembe
COMPLAINANT
AND:
South Coast British Columbia Transportation Authority (TransLink) and MoveUP (Canadian Office and Professional Employees’ Union, Local 378)
RESPONDENTS
REASONS FOR DECISION
APPLICATION TO DISMISS A COMPLAINT
Section 27(1)(c)
Tribunal Member: Jessica Derynck
On their own behalf: Gilbert Matembe
Counsel for the Respondent TransLink: Adriana Wills
Counsel for the Respondent MoveUP: Elisabeth Finney
I INTRODUCTION
[1] Gilbert Matembe worked for South Coast British Columbia Transportation Authority [TransLink] in a temporary position as a procurement officer when TransLink introduced and implemented a mandatory COVID-19 vaccination policy [Policy] in October 2021. Mr. Matembe asked TransLink for an exemption from the Policy based on his religious beliefs. TransLink denied his request and placed him on unpaid leave in December 2021. TransLink terminated his employment on October 14, 2022, which was the end of the term of his assignment.
[2] Mr. Matembe alleges that TransLink and his union, MoveUP (Canadian Office and Professional Employees’ Union, Local 378), discriminated against him in employment based on his religion. He says he has legitimate religious beliefs that led to his decision not to be vaccinated, and TransLink should have accommodated him with an exemption. He says MoveUP refused to represent him in filing a grievance against TransLink, which meant he was forced into the leave of absence without pay.
[3] Both Respondents deny discriminating. TransLink says it asked Mr. Matembe to explain how his decision not to be vaccinated related to his religious beliefs, and he did not answer their questions in a way that allowed them to assess whether there was a connection between his religion and his decision warranting an exemption to their Policy. TransLink applies to dismiss the complaint against it on the basis that there is no reasonable prospect of Mr. Matembe establishing a connection between his religion and adverse impacts in his employment.
[4] MoveUP also applies to dismiss the complaint against it on the basis that there is no reasonable prospect it will succeed. MoveUP says that even if Mr. Matembe were to establish that he has a genuine religious belief, there is no reasonable prospect that he will establish an adverse impact in employment in which his religious belief was a factor. MoveUP also says there is no reasonable prospect Mr. Matembe could establish that its representation of him was discriminatory.
[5] For the following reasons, I deny TransLink’s application, and I allow MoveUP’s application. The complaint against TransLink will proceed to hearing. The complaint against MoveUP is dismissed. To make this decision, I have considered all the information filed by the parties. In these reasons, I only refer to what is necessary to explain my decision.
II DECISION
A. Section 27(1)(c) law
[6] The onus is on each of the Respondents to establish that the complaint against them has no reasonable prospect of success: Human Rights Code, s. 27(1)(c).
[7] Section 27(1)(c) is part of the Tribunal’s gate-keeping function. It allows the Tribunal to remove complaints which do not warrant the time and expense of a hearing.
[8] The Tribunal does not make findings of fact under s. 27(1)(c). Instead, the Tribunal looks at the evidence to decide whether “there is no reasonable prospect that findings of fact that would support the complaint could be made on a balance of probabilities after a full hearing of the evidence”: Berezoutskaia v. British Columbia (Human Rights Tribunal), 2006 BCCA 95 at para. 22, leave to appeal ref’d [2006] SCCA No. 171. The Tribunal must base its decision on the materials filed by the parties, and not on speculation about what evidence may be filed at the hearing: University of British Columbia v. Chan,2013 BCSC 942 at para. 77.
[9] A dismissal application is not the same as a hearing: Lord v. Fraser Health Authority,2021 BCSC 2176 at para. 20; SEPQA v. Canadian Human Rights Commission,[1989] 2 SCR 879 at 899. The threshold to advance a complaint to a hearing is low. In a dismissal application, a complainant does not have to prove their complaint or show the Tribunal all the evidence they may introduce at a hearing. They only have to show that the evidence takes their complaint out of the realm of conjecture: Workers’ Compensation Appeal Tribunal v. Hill, 2011 BCCA 49 at para. 27.
[10] Many human rights complaints raise issues of credibility. This is not, by itself, a sufficient reason to deny an application to dismiss: Evans v. University of British Columbia, 2008 BCSC 1026 at para. 34. However, if there are foundational or key issues of credibility, the complaint must go to a hearing: Francescutti v. Vancouver (City), 2017 BCCA 242 at para 67.
[11] To prove his complaint at a hearing, Mr. Matembe would have to prove that the protected characteristic of religion applies to him, he was adversely impacted in employment, and his religion was a factor in the adverse impact: Moore v. British Columbia (Education), 2012 SCC 61 at para. 33. If he did that, the burden would shift to the Respondents to justify the impact as a bona fide occupational requirement. If the impact is justified, there is no discrimination.
[12] There is no dispute that the Policy adversely impacted Mr. Matembe in his employment. To establish that his religion was a factor, he would have to prove two things:
a. His refusal to take the COVID-19 vaccine has a connection to his religion, either because:
i. the refusal is objectively required by, or customary within, Christianity; or
ii. he subjectively believes refusing the vaccine is required by, or customary within, Christianity; or
iii. he believes that his refusal to take the vaccine engenders a personal connection to the divine or the subject or object of his spiritual faith, whether or not his belief is required by official religious dogma or is in conformity with the position of religious officials.
b. He is sincere in his religious belief.
Syndicat Northcrest v. Amselem, 2004 SCC 47 at paras. 56 and 69
B. TransLink’s application
[13] I find that the evidence takes Mr. Matembe’s claim that his religion was a factor in his refusal to take the COVID-19 vaccine out of the realm of conjecture. In particular, there is more than no reasonable prospect of Mr. Matembe establishing a sincere belief that his refusal to follow the Policy and take the vaccine engenders a personal connection to God. This means his complaint against TransLink passes the low threshold needed to advance to a hearing.
[14] In his complaint Mr. Matembe says, “As a born again Christian, I am led by the Holy Spirit not to take these SARS-CoV-2 injections.” He says the Holy Bible governs his faith and every decision he makes is “led of the Spirit of God”. He says he requested an exemption from the Policy on religious grounds, which TransLink repeatedly denied even though it did not dispute the legitimacy of his religious beliefs. He says TransLink “inundated me with a barrage of questions that require medical information to justify my religious beliefs and spiritual convictions.”
[15] Mr. Matembe wrote to TransLink on November 12, 2021, to request an exemption to the Policy.
[16] TransLink denied Mr. Matembe’s request on November 17, 2021, but told him that it would reconsider if he provided more information about his religious belief and how it connected to his refusal to take the vaccine. TransLink asked Mr. Matembe to answer the following questions:
Please describe your religious belief.
Please describe what specific religious belief leads you to object to vaccination/medications/medical treatments as described below. Please note that leaders and members of a number of religions have released public statements indicating their support for the COVID-19 vaccine specifically in the interest of public health; and, consistent with Christian beliefs as showing love and care for one’s neighbour.
• Does your belief lead you to object to all/other vaccinations? Yes/no.
o If yes, please advise which other vaccinations. If no, please confirm why your religious belief leads you to object to only the COVID-19 vaccine.
• Does your belief lead you to object to all/other medications/medical treatments? Yes/no.
o If yes, please advise which other medications/medical treatments your religious belief leads you to object to.
Please describe how your belief leads you to object to vaccination(s) and/or other medications/medical treatments.
• Please describe how your belief is connected to your faith or religion:
o How or why your faith or religion requires this belief.
o How this belief connects you personally to the divine, or to the subject or object of your spiritual faith.
If applicable, you may provide a written statement from a religious leader of your faith regarding your faith’s position on vaccination and a link to any documentation on this position.
[17] Mr. Matembe and TransLink then engaged in a back and forth about his request, sending multiple, but repetitive, letters to each other until February 2022.
[18] TransLink submits that it engaged with Mr. Matembe by asking him their questions and he was never responsive. TransLink says the information it sought was necessary to assess the legitimacy of Mr. Matembe’s beliefs. It says it needed Mr. Matembe to connect the use of the vaccine to his beliefs, and provide information about his consistency in adhering to practices aligned with those beliefs, to assess his request for an exemption to the Policy.
[19] The Code’s protection against religious discrimination encompasses a person’s right to act consistently with their faith: Amselem at para. 46. The Tribunal recently described this protection in Zhou v. Fraser Health Authority, 2025 BCHRT 226 at para. 13:
The protection of religious beliefs and practices emphasises “personal choice of religious beliefs”: Amselem at para. 43. A complainant is not required to “prove the objective validity of their beliefs in that their beliefs are objectively recognized as valid by other members of the same religion”: Amselem at para. 43. The focus of the analysis is on the complainant’s beliefs “at the time of the alleged interference with [their] religious freedom”, rather than on their past practices or beliefs: Amselem at para. 53.
[20] In Amselem, the Court explained that it is not possible to define religion precisely but said that some outer definition is useful because the protection at issue in that case only applied to beliefs, convictions, and practices rooted in religion, not those that are secular, socially based, or conscientiously held: para. 39. The Court went on to say:
Defined broadly, religion typically involves a particular and comprehensive system of faith and worship. Religion also tends to involve the belief in a divine, superhuman or controlling power. In essence, religion is about freely and deeply held personal convictions or beliefs connected to an individual’s spiritual faith and integrally linked to one’s self-definition and spiritual fulfilment, the practices of which allow individuals to foster a connection with the divine or with the subject or object of that spiritual faith.
[21] In his request for an exemption to the Policy Mr. Matembe provided the following information in support of his request (as written):
I accepted Jesus Christ as my Lord and Saviour in the early years of my youth. As a son of a preacher and gospel minister, I was taught right from my childhood that in all matters regarding personal choices, conduct, decisions, and deliberations, the Bible was and still remains the single navigational manual that God provided for my life. Consequently, my entire life from then till today has been anchored in the timeless teachings of the Bible. Many of those that grew up with me turned away from their faith in Jesus Christ because the message of the gospel came to us through British missionaries who were invariably associated with the Colonisers and Oppressors. Despite my childhood friends’ rejection of the gospel message, I personally remained firm in my faith, because I had been taught to distinguish the message from the messenger. It was an invaluable lesson and the experience helped me greatly in deepening my faith and desire to depend entirely on God’s direction as laid out in His Holy word, the Bible.
The importance of faith in my life cannot be under stated. The Bible, in Hebrews 11:6, says, “But without faith it is impossible to please God: for he that comes to God must believe that He is, and that He is a rewarder of them that diligently seek Him.” As a Christian I believe “All Scripture is given by inspiration of God, and is profitable for doctrine, for reproof, for correction, for instruction in righteousness” (2 Timothy 3:16). The Bible is foundational to every detail in my life and it is what constrains me to decide against taking the SARS-CoV-2 forced injections.
The Bible and Conscience:
In Acts 24:16, the Bible says; “So, I always take pains to have a clear conscience toward both God and man.” It is made abundantly clear by the passage above that a clear conscience toward God and man is an integral part of a believer in Jesus. Rejecting or ignoring it is detrimental to my faith as taught in 1 Timothy 1:19; that says; “Keeping faith and a good conscience, which some have rejected and suffered shipwreck in regard to their faith.” It is therefore incumbent upon me, to ensure that everything I do is done with a good and clear conscience. Accepting the forced SARS-CoV-2 (COVID-19) injections into my body violates my conscience. It is a breach of the patient’s right to consent before any treatment is administered to him or her. This is exacerbated by the lack of transparency regarding what is contained in the injections. I have never seen any medication administered without any accompanying detailed info about that medicine yet the vials containing the injectables for COVID-19 have no information what it constitutes and the proportions or percentages of the various ingredients. I cannot in a clear and good conscience before God and man subject myself to such under the given circumstances. It would be dishonoring to my God, disrupting to my relationship with Him and an outright act of rebellion against my God and a desecration of my faith in Jesus. And to forcefully compel me to be injected, I believe, would be an act of discrimination on the grounds of religious beliefs.
[22] Mr. Matembe then referred to the Canadian Charter of Rights and Freedoms, cases of the Supreme Court of Canada related to the freedom of conscience and religion under the Charter, and to Amselem. He wrote, “I cannot in good and clear conscience toward the God whom I love and serve, and toward man, take the SARS-CoV-2 (COVID-19) injections.”
[23] Mr. Matembe responded to TransLink’s questions on November 22, 2021. He wrote that when he learned that he was required to undergo forced COVID-19 vaccination, his response was to consider the instructions of the Bible, and that it is his prerogative to take time finding clarity in the Bible before rushing into a decision. He said that his “Biblically rooted beliefs and convictions” are the core of his identity and shape who he is. He wrote:
The basis of my submission is not personal preference. Let me make it categorically clear, the basis of my submission is my relationship with Jesus Christ, my faith in the Almighty God and the belief in the teachings of the Holy Bible. What I am making known is that my religious convictions, beliefs and practices are the basis of my decision. I did not make that known before because there was no need. Now the need has arisen. So, I have clearly laid it out. Everything I do is done in the love, fear, honor of the Almighty God and His Son Jesus Christ my Lord. I do it with a good and clear conscience. I am persuaded that religious freedom and conscience are guaranteed to me under the Charter of Rights and Freedoms…
[24] Mr. Matembe went on to ask TransLink the following questions:
1. My right to consent to any treatment before it is administered is being stripped by mandating me to get vaccinated. Why is that?
2. Your questioning focuses on whether I have objection to vaccination/medication in general or specific to SARS-CoV-2 (COVID-19). However, I have not been asked to show proof of any medication/vaccination I have received in the past or am currently receiving (which I have consented to) for me to perform my duties as a procurement officer. Why is that?
3. Public health has clearly stated in their official statements that the situation with Covid-19 is fluid and constantly changing, yet I’m being forced to get a vaccine that is still being studied for me to perform my duties as a procurement officer. Why is that?
4. What does vaccination or lack there of, have to do with my capabilities to perform my duties as a procurement officer?
[25] Mr. Matembe then said that his faith in God and Jesus Christ is personal and not based on a religious leader. He said he is an adult who makes personal decisions, and his faith, beliefs, and convictions are rooted in what the Bible says. He included some quotes from the Bible, and said:
I’ll also add that it is folly to quote or reference the Bible without clear understanding and context. Mark 12:30-31 says, “Love the Lord your God with all your heart and with all your soul and with all your mind and with all your strength.’ The second is this: ‘Love your neighbor as yourself.’ There is no commandment greater than these.” Loving my neighbour and caring for them doesn’t constitute engaging in whatever my neighbour does. Rather, it constitutes treating my neighbour as I would like to be treated, i.e., with respect, consideration and understanding. Matthew 7:12 says, “So in everything, do to others what you would have them do to you, for this sums up the Law and the Prophets.”
Let me, reiterate what I have already mentioned, that keeping my faith and a clear conscience before God are an integral part of my life as a believer in Jesus Christ. Your line of questioning and your concluding statement have called into question the basis of my submission.
[26] Mr. Matembe’s manager responded to him on November 24, 2021. She told him that TransLink did not dispute that he has a sincere belief in God and that his life is influenced by his beliefs. She said:
In response to your submission on your religious beliefs, we can only repeat what we said in our earlier letter: employees requesting accommodation on the basis of religious beliefs must identify the specific beliefs and describe how being vaccinated is inconsistent with those beliefs. As a result, in order to evaluate your request for accommodation, we reiterate our earlier request for the information sought in that letter.
[27] Mr. Matembe and TransLink sent several more letters back and forth. Mr. Matembe reiterated that his religious convictions and beliefs are the basis of his decision to object to doing anything without a clear conscience before God, including accepting the vaccine. TransLink reiterated that it required more information to test the consistency of his practices and whether they consistently align with his beliefs.
[28] TransLink submits that Mr. Matembe did not ever provide information about a “particular and comprehensive, overarching system of belief”, other than to say he acted in accordance with his conscience, without explaining what his conscience said to him about the vaccine: DiRenzo v. Toronto (City), 2024 HRTO 395 at para. 9. TransLink says he did not connect his objection to the vaccine on the basis of his conscience to a comprehensive and overarching system of belief that governed his conduct and practices, or show that he behaved in a consistent manner relative to vaccines or other medications. Finally, TransLink says Mr. Matembe did not disclose any connection to an organization or community that professed a shared system of belief.
[29] TransLink relies on the Ontario Human Rights Tribunal’s decision in DiRenzo at paras. 14-15:
I notice that the applicant’s creed with respect to his personal beliefs about this particular vaccination lacks an overarching systemic component. I also note that it does not address the question of human existence, nor contemplate life and death. While it does recognize God in the “holy Spirit”, it is focused solely on one singular belief around this specific vaccination in light of their interpretation of scripture. The applicant is attempting to justify their position against COVID-19 vaccinations as an overarching system of faith by rejecting its ingredients as not fit for their “body as a temple”. However, they provide no other information in support of this. For example, there is no evidence that they have rejected other medicines and/or vaccinations that were also originally developed using fetal cell research or taken any other steps as a result of this belief in preserving their “body as a temple.” The submissions are devoid of these kinds of details which might support that this belief was broad-based and overarching.
I further note that despite citing some Christian ideas and noting some Bible quotes, their creed, as espoused, does not form a nexus to any organization or community with a shared system of belief. This particular belief appears to be focused on their dislike or the ingredients of the COVID-19 vaccine and a perception that the vaccine could alter RNA.
[30] TransLink submits that in his request for an exemption to the Policy, Mr. Matembe was exercising a personal rather than religious belief. TransLink says that Mr. Matembe provided TransLink with quotes from the Bible and spoke about his adherence to his conscience but did not explain a nexus between the vaccine and his belief, or any nexus to any shared system of belief. TransLink says Mr. Matembe provided information that his refusal of the vaccine was based on factors like the mandatory nature of the Policy and his lack of knowledge of the vaccine’s contents, and he did not connect these bases to his religious beliefs. TransLink says Mr. Matembe also did not provide information about his practice with respect to other vaccines so it could assess the consistency of his practice.
[31] TransLink submits that Mr. Matembe must do more than identify a particular belief, claim that it is sincerely held, and claim that it is religious in nature. Rather, TransLink says, he must provide a sufficient objective basis to establish that the belief is a tenet of a religious faith (although it does not need to be widely accepted by others of the same faith), and is a fundamental or important part of expressing that faith: Pelletier v. 1226309 Alberta Ltd. o/a Community Natural Foods, 2021 AHRC 192.
[32] TransLink submits Mr. Matembe has not said that a specific Christian belief prohibits the vaccine and has not explained how his belief in God prohibits him from taking the vaccine. It says he has not explained the nature of his belief in God, how his conscience is related to his belief in God, or how the use of the vaccine is inconsistent with his conscience. TransLink says, “Finally and perhaps most importantly, he has refused repeatedly to confirm that his practice in relation to other vaccines or other medications.” [as written]
[33] I find that the information Mr. Matembe provided to TransLink sets his case apart from DiRenzo, and from this Tribunal’s recent decisions in Zhou, Card v. Fraser Health Authority and Another, 2025 BCHRT 231, and Thompson v. Interior Health Authority, 2025 BCHRT 188. In Zhou, Card, and Thompson, the Tribunal found that the complainants had no reasonable prospect of establishing a sincerely held religious belief connected to their refusal to get the vaccine.
[34] Some of the information Mr. Matembe provided to TransLink suggested that his opposition to the COVID-19 vaccine was personal rather than based on a religious belief. He disagreed with the mandatory nature of the Policy and believed he had a right to make his own choice of whether or not to be vaccinated. He believed that the ingredients of the vaccine were unknown and had questions about this, and about how his vaccination status was related to his ability to do his job, which was not public-facing. These concerns alone do not have a connection to religion, and the Code does not protect an objection to the vaccine and Policy based on these concerns: Zhou at para. 32.
[35] However, Mr. Matembe also provided TransLink with information about his religious beliefs, and an explanation of how he claimed to connect his religious beliefs to his decision not to follow the Policy and take the vaccine. The information he provided takes his claim of a sincere religious belief that his refusal to take the vaccine subjectively engenders his personal connection with God out of the realm of conjecture: Amselem at para. 56, Hill at para. 27.
[36] TransLink says it was entitled to question the nature of Mr. Matembe’s religious beliefs – specifically, the relationship between his beliefs and his aversion to the COVID-19 vaccine, and to ask him about his views and practices about other vaccines and medications generally, in order to assess his sincerity about his objection to the COVID-19 vaccine. TransLink says Mr. Matembe did not respond to its questions in a way that allowed them to evaluate his request for an exemption.
[37] The parties’ communications show that Mr. Matembe did respond to TransLink’s questions. He described his religious belief in multiple letters to TransLink [as written]:
I believe in God and Jesus Christ his son. I believe that Jesus Christ descended from heaven and was born as a child, lived among men, was crucified as punishment for my sins, died, was buried and on the third day He rose from the dead. I believe that He ascended into heaven and is seated at the right hand of God interceding for me. This is the foundation of my faith in God. The entire Holy Bible supports my convictions and expounds more in detail. Some Reference in the Holy Bible are (John 3:16-18, John 1:12-13, Romans 4:25, Romans 10:9-10, etc.)
[38] Mr. Matembe told TransLink that whether his belief leads him to object to other vaccinations or medical treatments was not relevant because his issue with the Policy was its mandatory nature [as written]:
Your policy is mandating vaccination for me to retain my employment. My belief in God, as expressed in my two (2) previous submissions, leads me to object to doing anything without a clear conscience. It is not limited to being vaccinated. Some references in the Holy Bible are (Acts 24:16; 1 Timothy 1:19; etc.)
[39] TransLink submits that if Mr. Matembe had answered that he had no objections to other vaccines but only to the COVID-19 vaccine, he would have had to provide an explanation of that position in the context of his purported religious beliefs. However, Mr. Matembe explained how he says his objection to the COVID-19 vaccine connects to his religious beliefs in multiple letters. He quoted passages from the Bible that he says describe how his beliefs connect him personally to God. In his letter to TransLink dated December 16, 2021, he explained that his belief in God is not limited to the issue of being vaccinated or taking medical treatment, but that his beliefs lead him to object to doing anything without a clear conscience. He repeated the quote from the Bible that says, “So, I always take pains to have a clear conscience toward both God and man.” He said [as written]:
It is made abundantly clear by the passage above that a clear conscience toward God and man is an integral part of a believer in Jesus Christ. Rejecting or ignoring it is detrimental to my faith and could lead to my separation from God as taught in 1 Timothy 1:19; that says; “Keeping faith and a good conscience, which some have rejected and suffered shipwreck in regard to their faith.” It is therefore incumbent upon me, to ensure that everything I do is done with a good and clear conscience.
…
I will conclude by reiterating that everything I do must be done with a good and clear conscience for the sake of my relationship with God. Without that I am guilty of sinning against God. Sinning against God leads to separation from God and ultimately death, i.e., body, soul, and spirit. (“The soul who sins shall die. The son shall not bear the guilt of the father, nor the father bear the guilt of the son. The righteousness of the righteous shall be upon himself, and the wickedness of the wicked shall be upon himself.” Ezekiel 18:20). This also speaks to your stance about some religious leaders’ support. The Bible in Romans 6:23, also says, “For the wages of sin is death, but the gift of God is eternal life in Christ Jesus our Lord.”
[40] Put simply, Mr. Matembe told TransLink that his objection to the mandatory nature of the Policy was rooted in his religious beliefs because following the Policy to accept the vaccine against his conscience would lead to separation from God. This is different from the basis for the objection to the vaccine in DiRenzo based on a belief that it was developed using fetal cell research. Questions about an individual’s position and practices related to other vaccines based on how they were developed may be relevant in that circumstance.
[41] TransLink responded on December 21, 2021, by again telling Mr. Matembe that it needed more information about his use of medications to assess his request [as written]:
We confirm that we understand fully that your request for accommodation is based on the protected ground of religion and not on a mental or physical disability. However, the questions posed about your historical use of medications, whether over the counter or prescribed, is necessary to enable us to assess your request for accommodation based on your religious beliefs.
One of the ways in assessing sincerity of belief is to evaluate an employee’s practices over time. For that reason, we have asked you to provide us with details regarding your use and ingestion of medications and your practices regarding other vaccines. We consider that you will have answered fully and provided sufficient information when you thoroughly, completely and truthfully answer all of the questions in our letter to you of November 17, 2021.
Finally, you have continued to assert that your religious beliefs compel you to act with a “good and clear conscience”. You have not provided any information or explanation as to how being vaccinated would result in you not having a ‘good and clear conscience.’ As you know, personal preference is not a legally defensible basis for obtaining an exemption from vaccination. We do need you to be specific in responding to all the questions in the November 17, 2021 letter and also explaining how being vaccinated would deprive you of having a good and clear conscience.
[42] TransLink submits that the assessment of the sincerity of an individual’s religious belief, for the purpose of ensuring that the asserted religious belief is in good faith and not fictitious or capricious, is a question of fact, and that such an assessment should include an analysis of whether the alleged belief is consistent with the individual’s current religious practices. TransLink relies on Amselem at paras. 51-53.
[43] The evidence before me could support a finding that TransLink’s approach did not allow for the possibility that Mr. Matembe’s objection to the mandatory nature of the Policy was rooted in a sincere religious belief that if he went against his conscience to follow the Policy this could impact his relationship with God. It would be open to the Tribunal to find at a hearing that this was not consistent with what the Court said in Amselem about assessing sincerity of religious belief.
[44] TransLink told Mr. Matembe that it needed answers to its repeated questions about his stance on other vaccinations and medications to assess the sincerity of his belief. TransLink submits in its application that if Mr. Matembe had answered that he had no objection to vaccines other than the COVID-19 vaccine, he would have been required to provide an explanation of that position in the context of his purported religious beliefs. However, Mr. Matembe explained that his issue was with the mandatory nature of the Policy. TransLink’s questions and communications to Mr. Matembe implied that if he did not object to other vaccinations or forms of medical treatment that were not mandatory, his claim that his objection to the Policy was based on his religious beliefs was not sincere. In my view, it would be open to the Tribunal to find at a hearing that TransLink’s approach was not consistent with paras. 51-53 of Amselem, where the Court said:
… while a court is not qualified to rule on the validity or veracity of any given religious practice or belief, or to choose among various interpretations of belief, it is qualified to inquire into the sincerity of a claimant’s belief, where sincerity is in fact at issue: see Jones, supra; Ross, supra. It is important to emphasize, however, that sincerity of belief simply implies an honesty of belief…
… the jurisprudence in this area evinces that inquiries into a claimant’s sincerity must be as limited as possible. … Indeed, the court’s role in assessing sincerity is intended only to ensure that a presently asserted religious belief is in good faith, neither fictitious nor capricious, and that it is not an artifice. Otherwise, nothing short of a religious inquisition would be required to decipher the innermost beliefs of human beings.
Assessment of sincerity is a question of fact that can be based on several non-exhaustive criteria, including the credibility of a claimant’s testimony…as well as an analysis of whether the alleged belief is consistent with his or her other current religious practices. It is important to underscore, however, that it is inappropriate for courts rigorously to study and focus on the past practices of claimants in order to determine whether their current beliefs are sincerely held. Over the course of a lifetime, individuals change and so can their beliefs. Religious beliefs, by their very nature, are fluid and rarely static. A person’s connection to or relationship with the divine or with the subject or object of his or her spiritual faith, or his or her perceptions of religious obligation emanating from such a relationship, may well change and evolve over time. Because of the vacillating nature of religious belief, a court’s inquiry into sincerity, if anything, should focus not on past practice or past belief but on a person’s belief at the time of the alleged interference with his or her religious freedom.
[45] Mr. Matembe did not give TransLink examples of any other decisions he has made that he claims demonstrate his belief that he must act with a good and clear conscience before God, but TransLink did not ask him to. There is no evidence that TransLink asked him about any other situations in which an employer or other entity mandated him to receive a vaccine or other medical treatment regardless of what his own conscience said, which is what he claimed could lead to his separation from God. Instead, the evidence on this application suggests that TransLink focused on its view that Mr. Matembe’s objection to the Policy could not be rooted in religious belief if he did not provide information about his practices or position related to other vaccinations or medications.
[46] TransLink was not satisfied with Mr. Matembe’s explanation that accepting the vaccine to comply with the Policy instead of following his own conscience would be detrimental to his faith and could impact his relationship with God. TransLink questioned the honesty of his belief and treated it as fictitious failing information from him that would persuade them otherwise, but the evidence before me could support a finding that they closed off the possibility that he held a sincere religious belief that following the Policy when his conscience told him to do otherwise would be detrimental to his faith and could separate him from God.
[47] The sincerity of Mr. Matembe’s belief is an issue of credibility that can only be determined after a hearing. Whether his decision not to take the vaccine was connected to his religion is also a question of fact that, in my view, warrants a hearing. This does not mean that his complaint will succeed. The onus is on Mr. Matembe to prove that he sincerely holds religious beliefs that were a factor in his decision not to comply with the Policy.
[48] TransLink did not argue in its application that the Policy was a bona fide occupational requirement. It is open to TransLink to make this argument at a hearing.
C. MoveUp’s Application
[49] Mr. Matembe was a member of the bargaining unit represented by MoveUP in his position at TransLink. He approached MoveUP in December 2021 for assistance with his accommodation request. MoveUP took the position that the information TransLink requested was necessary to support Mr. Matembe’s request for accommodation and advised him to answer TransLink’s questions.
[50] After TransLink placed Mr. Matembe on unpaid leave he initiated a grievance. TransLink denied his grievance, and MoveUP declined to pursue it.
[51] In his complaint Mr. Matembe says MoveUP discriminated against him in employment when it refused to represent him related to his accommodation request and pursue his grievance, resulting in his leave of absence without pay. He says MoveUP discriminated against him by legitimizing TransLink’s actions and refusing to represent him in the grievance process.
[52] In response to MoveUP’s application Mr. Matembe says that in a proceeding at the Labour Relations Board MoveUP acknowledged that his issue with the Policy was a human rights violation.
[53] MoveUP did not acknowledge a potential human rights violation. Rather, MoveUP took the position that an application Mr. Matembe made at the Labour Relations Board should be dismissed or held in abeyance pending the outcome of his human rights complaint. This is not inconsistent with its application to dismiss the complaint.
[54] I am persuaded that Mr. Matembe has no reasonable prospect of establishing that MoveUP’s conduct caused any adverse impact in his employment. I allow MoveUP’s application on this basis.
[55] Mr. Matembe did not file a complaint against MoveUP under s. 14 of the Code to allege that MoveUP discriminated against him in union representation. I note that he is self-represented and that it would be open to the Tribunal to seek submissions from him and MoveUP on whether his complaint against it could proceed under s. 14. MoveUP’s submissions on its application address s. 14 of the Code and its representation of Mr. Matembe, and he had an opportunity to respond to their submissions and did so. I explain in this decision that I would also find that a complaint under s. 14 would have no reasonable prospect of success.
[56] A union may discriminate in employment under s. 13 of the Code by participating in the formation of a work rule that has a discriminatory effect on a complainant, or impeding the reasonable efforts of an employer to accommodate a complainant: Central Okanagan School District No. 23 v. Renaud, [1992] 2 SCR 970 at pp. 990-991. Any third party outside of an employment relationship, including a union, may also discriminate regarding employment by engaging in discriminatory conduct with a sufficient nexus to the complainant’s employment: British Columbia Human Rights Tribunal v. Schrenk, 2017 SCC 62.
[57] There is no evidence that MoveUP participated in the formation of the Policy, or impeded TransLink’s efforts to accommodate employees under the Policy. The allegations against MoveUP are about its representation of Mr. Matembe as a union member and more properly fall under s. 14 of the Code. There is no reasonable prospect of Mr. Matembe establishing that MoveUP discriminated against him under s. 13.
[58] The essence of Mr. Matembe’s complaint against MoveUP is that it negatively impacted him in how it represented him related to his request for accommodation from TransLink and his grievance. In Redmond v. Hospital Employees’ Union, 2024 BCHRT 203 at paras. 36 and 38, I explained how a complainant may establish that a union discriminated against them based on how it represented them:
In a complaint about union representation in a grievance process, a complainant will not prove a breach of the Code by showing that the union’s representation was ineffective. To prove a breach of s. 14 of the Code a complainant must establish that they were disadvantaged in union membership for a reason connected to their protected characteristics: Byelkova v. British Columbia Nurses’ Union, 2019 BCHRT 119 at para. 57. If a complainant shows that a union agreed to a grievance settlement that was not in the complainant’s best interest, and that the union acted arbitrarily, unfairly, or wrongly in doing so, this does not amount to discrimination. The Tribunal’s role is not to assess the quality or level of union representation, rather, our role is to determine whether any of the union’s conduct constitutes an adverse impact for the purposes of s. 14 of the Code, and if so, whether the complainant’s protected characteristic was a factor in the adverse impact.
…
I accept that discrimination may occur alongside sub-standard representation. The onus is on a complainant to establish that they experienced sub-standard representation that constitutes an adverse impact, or that some other treatment or conduct in the course of the process constitutes an adverse impact. The Tribunal does not second-guess a union representative’s decisions or decide whether it agrees or disagrees with those decisions; rather, the Tribunal determines whether any actions or decisions constituted an adverse impact. If a complainant disagrees with a union’s decision this does not necessarily mean that the decision constitutes an adverse impact. A complainant may experience some parts of the process, such as a decision to resolve the grievance in a way that the complainant disagrees with, as negative or difficult without that part of the process being an adverse impact. Treating a complainant harshly in the course of the process, on the other hand, is more likely to be an adverse impact. Stereotyping a complainant, or neglecting to pursue their grievance or making decisions adverse to them based on stereotypes is likely to be an adverse impact.
[59] Mr. Matembe submitted copies of his communications with MoveUP related to his request that TransLink accommodate him under the Policy. A union representative, Mr. L, discussed Mr. Matembe’s accommodation request and grievance with him. MoveUP’s Director of Operations, Tony Geluch, also communicated with Mr. Matembe about his accommodation request and grievance.
[60] I find there is no reasonable prospect of Mr. Matembe establishing that MoveUP disadvantaged Mr. Matembe in union membership for any reasons connected to his religion.
[61] MoveUP supported its application with an affidavit from Mr. Geluch. He explains that his role includes reviewing the work of MoveUP representatives to ensure that it complies with a union’s duty to represent members without acting arbitrarily, discriminatorily, or in bad faith.
[62] On December 2, 2021, Mr. Matembe wrote to Mr. L to ask for support related to the Policy. He sent Mr. L copies of his communications with TransLink about the issue. On December 14, 2021, Mr. L wrote to Mr. Matembe and explained what MoveUP was doing to represent its membership in relation to the Policy generally, including that it had filed a policy grievance and an application at the Labour Relations Board. Mr. L said he had reviewed Mr. Matembe’s information and considered how a third party would assess his request for religious accommodation.
[63] In this email Mr. L said he was not prepared to doubt that Mr. Matembe had a sincere belief that acquiescing to the Policy would violate his religious beliefs, but the standard to prove this is difficult. Mr. L said he believed that a third party would require answers to TransLink’s questions because TransLink had a right to request and confirm a consistency of practice. Mr. L said he also believed that MoveUP would need to address TransLink’s request for supporting documents from a religious leader or advisor to address TransLink’s position that almost all religions have encouraged members to get vaccinated. Mr. L ended his email by saying MoveUP would be happy to assist Mr. Matembe in his request for a religious exemption, but the bar is high and the information he had provided so far would not convince a third party that he required a religious exemption.
[64] On January 12, 2022, Mr. L told Mr. Matembe in an email that he continued to recommend Mr. Matembe respond to TransLink’s questions. On January 13, 2022, Mr. L emailed Mr. Matembe and said his view was that Mr. Matembe had not established that a Code-based ground for accommodation applied to him.
[65] On January 26, 2022, Mr. L wrote to Mr. Matembe and said he had to determine what evidence would be available to MoveUP related to his accommodation request. Mr. L said he was concerned that Mr. Matembe having told TransLink that his decision not to take the vaccine was based on several hours of prayer and meditation, and his having referred to “forced injections”, would not be helpful evidence. Mr. L said it did not appear to him that TransLink’s denial of his accommodation request was unfair.
[66] On February 1, 2022, Mr. Geluch emailed Mr. Matembe and said he had reviewed his correspondence with Mr. L and with TransLink about his issue. Mr. Geluch said his view was that a labour arbitrator would not find that Mr. Matembe had established a nexus between his religious beliefs and the Policy, and there was a significant chance that an arbitrator would find that Mr. Matembe had not met the burden of proof respecting the sincerity of his beliefs. Mr. Geluch recommended that Mr. Matembe provide TransLink with any additional information he had to support the sincerity of his religious beliefs and their nexus to the Policy.
[67] In his affidavit Mr. Geluch says he formed the view that Mr. L had provided responsive and accurate advice to Mr. Matembe regarding the steps he should take to pursue an exemption from the Policy, and that a grievance on Mr. Matembe’s behalf would not be successful. His communications to Mr. Matembe are consistent with this. In his February 1, 2022, email, Mr. Geluch wrote that Mr. Matembe was free to make a human rights complaint against TransLink and MoveUP, but, “I strongly recommend you obtain competent independent legal advice on the viability of such a complaint prior to taking any action. I am confident that the advice you will receive is that a complaint has little chance of success and that pursuing one would be a waste of time and resources for all parties involved, including yourself.” Mr. Geluch said he recognized that the issue was important to Mr. Matembe and recognized that it may be difficult for Mr. Matembe to receive his email with this view. He invited Mr. Matembe to contact him with any questions, but said he was not prepared to engage in a protracted discussion on the nuances of reported caselaw or MoveUP’s legal obligations to its members.
[68] On March 2, 2022, Mr. L emailed Mr. Matembe, coping Mr. Geluch. Mr. L told Mr. Matembe that TransLink had denied his grievance of his unpaid suspension because he did not file it on time, and because TransLink maintained that it had a right to place Mr. Matembe on unpaid leave under the Policy because he had not provided proof of vaccination. Mr. L said the union would not advance the grievance to the next stage because TransLink has a right to deny its employees who do not comply with their policies the right to work, and it had not grieved the Policy or the consequences of not complying with it because took the position that the Policy was reasonable.
[69] Mr. Matembe responded the next day to say he thought that the union was acting in a manner that was arbitrary, discriminatory, and in bad faith. He said he disagreed that his grievance was late-filed, and he disagreed that the Policy was reasonable.
[70] Mr. Geluch replied to Mr. Matembe and said Mr. L’s advice and representation was thoughtful and unbiased. Mr. Geluch said MoveUP had sought legal advice on the Policy and would address any issues with it through its policy grievance and applications to the Labour Relations Board. Mr. Geluch said MoveUP declined to proceed further with Mr. Matembe’s grievance because it was unlikely to succeed.
[71] On March 8, 2022, Mr. Geluch emailed Mr. Matembe in response to a question he asked about other options. Mr. Geluch said there were no further options because MoveUP had assessed his grievance as having little prospect of success, and made the difficult decision not to pursue it further after considerable deliberation.
[72] In response to MoveUP’s application, Mr. Matembe says MoveUP requested dismissal of a complaint he made to the Labour Relations Board on the grounds that this is a human rights matter, which was an acknowledgement of a human rights violation. He says that MoveUP’s assessment that TransLink acted appropriately means that MoveUP acted arbitrarily, in bad faith, and discriminatorily. He says MoveUP trivialized his concerns and disregarded his beliefs because its representatives did not understand them. He says MoveUP’s inability to understand his religious beliefs and convictions should not have resulted in denial of resources to him as a union member.
[73] Mr. Matembe submits that MoveUP was hesitant to represent him because they did not feel they would be successful, but he did not demand they be successful. He says he was looking for support, but MoveUP made no attempt to pursue his grievance at all. He says MoveUP should have focused on the facts of his situation and the case law supporting his claim, not their capacity to win or lose a grievance. He disputes MoveUP’s assertion that his religion was not a factor in their decisions about his situation because his religion was material to his issue with TransLink.
[74] Mr. Matembe disagrees with MoveUP’s assessment of his accommodation request and grievance, but a decision not to pursue a grievance or issue with the employer is not discrimination.Even if the Tribunal were to find that MoveUP’s decision not to pursue his request and grievance was an adverse impact in union representation, there is no evidence to support a claim that this decision was based on anything other than MoveUP’s assessment that Mr. Matembe had not provided enough information to warrant a religious accommodation. Whether or not the Tribunal ultimately allows this complaint against TransLink, which will only be decided after a hearing, a determination years later that a union member’s own view of their legally complex workplace issue, related to a unique policy in response to a global pandemic, may have had some merit that the union did not perceive at the time, is not evidence of discrimination.
[75] There is also no evidence to suggest that MoveUP treated Mr. Matembe poorly, stereotyped him, or made decisions about his representation for any reason other than Mr. L’s and Mr. Geluch’s views that he had not provided enough information to persuade a third party decision maker that a religious accommodation was warranted in his situation.
[76] If Mr. Matembe had filed his complaint under s. 14 of the Code, I would find that it has no reasonable prospect of success.
III CONCLUSION
[77] TransLink’s application is denied and the complaint against it will proceed to a hearing. I encourage the parties to access the Tribunal’s mediation services if they wish to explore resolution of the complaint without a hearing.
[78] MoveUP’s application is allowed and the complaint against it is dismissed under s. 27(1)(c) of the Code.
Jessica Derynck
Tribunal Member