Sarba v. Ruskin Construction Ltd. and others (No. 2), 2025 BCHRT 74
Date Issued: March 25, 2025
File: CS-000503
Indexed as: Sarba v. Ruskin Construction Ltd. and others (No. 2), 2025 BCHRT 74
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:
Francis Sarba
COMPLAINANT
AND:
Ruskin Construction Ltd. and Steve Chauvin and Dan Homeniuk and Reza Moham
RESPONDENTS
REASONS FOR DECISION
Tribunal Member: Edward Takayanagi
Counsel for the Complainant: James Hankinson
Counsel for the Respondents: Alexia Mpidi Bita
Date of Hearing: November 27 – 30, 2023
Location of Hearing: Videoconference
I INTRODUCTION
[1] Francis Sarba alleges that his former employer, Ruskin Construction Inc., and three of its employees, Steve Chauvin, Dan Homeniuk, and Reza Moham, discriminated against him based on his race and colour in violation of s. 13 of the Human Rights Code . Mr. Sarba describes himself as a Black, African Canadian. He says he was subject to racial harassment at work, and a lack of investigation by Ruskin after he reported his concerns. He says this treatment made him feel unsafe at work and led to the termination of his employment.
[2] The Respondents deny discriminating. They deny the events Mr. Sarba alleges occurred. Ruskin says it conducted an investigation of Mr. Sarba’s racial harassment complaint, and says that Mr. Sarba’s employment was not terminated, but he resigned.
[3] In this decision, I must decide whether Mr. Sarba has established on a balance of probabilities that he was adversely impacted in his employment as alleged, and if so whether his race or colour were a factor in that adverse impact. Because the parties fundamentally disagree on the facts, this case turns in large part on the credibility of the witnesses’ evidence.
[4] The parties called witnesses and introduced evidence over the course of a four-day hearing and submitted closing arguments in writing. While I do not refer to it all in my decision, I have considered all the evidence and submissions of the parties. This is not a complete recitation of that information, but only what is necessary to come to a decision.
[5] For the reasons that follow, I find the Respondents breached the Code .
[6] I apologize to the parties for the delay in issuing this decision.
II Social Context
[7] The Tribunal recognizes that complaints of racial discrimination are properly considered in social context: Campbell v. Vancouver Police Board (No. 4) , 2019 BCHRT 275 [ Campbell ] at para. 105. Individual acts, viewed in isolation, may be ambiguous or explained away. However, the social context and an understanding of how racial discrimination may take place can support a finding that a person has experienced an adverse impact, and that protected characteristics such as race and colour were factors in that adverse impact: Campbell paras. 104-105.
[8] This case alleges anti-Black racism in a predominantly White workplace, in which Mr. Sarba was one of few racialized employees. One of the allegations is that Mr. Sarba was repeatedly subjected to the use of a racial slur in the workplace. I find the slur is a widely known racial slur that is belittling, demeaning, and dehumanizing. I find it unnecessary to repeat the word in full in this decision to understand what occurred and my decision. In this decision I will refer to the racial slur as the “N-Word.”
III BACKGROUND
[9] Ruskin is a specialized contractor that provides bridge and pipeline construction services.
[10] Mr. Sarba is a bridgeman scaffolder who worked for Ruskin from July to October 2019 at a work site near Prince Rupert, BC. Ruskin provided a work camp where employees could reside while working at the work site. Mr. Sarba lives in the lower mainland and would fly up to the work site on a two-week in, one-week out schedule.
[11] While at Ruskin, Mr. Sarba worked with the individual respondents: Steve Chauvin, a foreman at the work site; Reza Moham, a project manager; and Dan Homeniuk, the construction manager.
[12] Mr. Sarba initially worked under foreman, Dale Ross. Mr. Sarba says Mr. Ross made numerous derogatory comments about visible minorities, including Black Canadians to Mr. Sarba from July to August 2019. Mr. Ross joked that Mr. Sarba was a “hard working N-Word,” referred to him as “my N-Word”, commented that Ruskin was “working [Mr. Ross] like an N-Word” and said Mr. Sarba was not like other black people because he was not lazy. These comments were made repeatedly throughout the time Mr. Sarba worked under Mr. Ross.
[13] On or about August 31, 2019, John Auriat, another employee in Mr. Ross’ work team, made a written complaint about Mr. Ross’ conduct. In his complaint, Mr. Auriat says Mr. Ross used the N-Word in front of Mr. Sarba. He says Mr. Ross would also scream, berate, and mistreat Mr. Auriat because of Mr. Auriat’s Indigenous ancestry.
[14] Mr. Moham investigated the complaint about Mr. Ross. Mr. Ross was not at the work site during the investigation and Mr. Moham interviewed him by phone. Mr. Ross denied that he used racial slurs or that he was a bully.
[15] On September 7, 2019, as part of the investigation into Mr. Auriat’s allegation, Mr. Sarba provided a written witness statement about his interactions with Mr. Ross to Ruskin. He said Mr. Ross would call Black people “coloured”, and said Ruskin was “working [Mr. Ross] like an N-Word” in front of him.
[16] On September 9, 2019, Mr. Sarba and his union steward met with Mr. Moham in his office to discuss his witness statement. Mr. Sarba says that during the meeting Mr. Moham repeatedly used the N-Word and asked if Mr. Sarba was certain Mr. Ross used that word. Mr. Sarba says Mr. Moham told him, “you are taking being called the N-Word personally” and said the N-Word is like saying someone is a fascist.
[17] On September 10, 2019, Mr. Sarba reported Mr. Moham’s repeated use of the N-Word during their meeting to Mr. Homeniuk. Mr. Sarba said Mr. Moham used the racial slur several times during their meeting and he felt singled out during a morning toolbox meeting where Mr. Moham told the crew all harassment and bullying should be reported. Mr. Sarba did not provide a written complaint about Mr. Moham but says Mr. Homeniuk told him he would follow up and investigate the incident.
[18] Mr. Homeniuk obtained a written witness statement from Mr. Moham. Mr. Moham denied using the N-Word. As a result of the investigation Ruskin set two action items. First, that Mr. Moham should “have a representative in meetings moving forward.” Second, that Ruskin’s safety team should review Ruskin’s harassment policy with the crew.
[19] On October 2, 2019, Mr. Sarba was socializing with a co-worker in his room at the work camp when Mr. Chauvin entered the room. Mr. Chauvin and Mr. Sarba exchanged some harsh words and decided they should continue their confrontation outside. After leaving the co-worker’s room, a physical altercation erupted. Mr. Sarba says Mr. Chauvin grabbed him by the neck and hair and pulled out one of his dreadlocks. Mr. Sarba says he defended himself by knocking Mr. Chauvin to the ground. Mr. Sarba says that during the altercation Mr. Chauvin shouted threats and racial epithets, including the N-Word.
[20] Mr. Chauvin denies he used the N-Word. Mr. Chauvin says Mr. Sarba was the aggressor who struck the first blow.
[21] In the immediate aftermath of the altercation, representatives of Ruskin dissuaded Mr. Sarba from calling the police and told him the matter would be dealt with internally. On the morning of October 3, 2019, Mr. Sarba met with Mr. Homeniuk and Mr. Chauvin. Mr. Homeniuk suspended both Mr. Sarba and Mr. Chauvin for two-weeks. Mr. Homeniuk told Mr. Sarba and Mr. Chauvin that, overall, they had been good employees, and he hoped they would return after the suspension.
[22] Mr. Sarba returned to his home in the lower mainland during the suspension. Mr. Sarba says that, in the past, he would receive a phone call from Ruskin, and it would arrange a plane ticket to return to the work site. During his suspension Ruskin did not call Mr. Sarba or provide him with a plane ticket to return to work after his two-week suspension ended. Instead, Ruskin issued a record of employment ( ROE ) on October 11, 2019, which provides that Mr. Sarba’s last day of work was October 2, 2019, and his employment was terminated due to “shortage of work/end of contract or season.”
IV ANALYSIS AND DECISION
A. General Legal Principles
[23] To succeed in his claim of discrimination under s. 13 of the Code , Mr. Sarba must prove, on a balance of probabilities, that: (1) he has a protected characteristic, in his case his race and colour; (2) he experienced an adverse impact in his employment; and (3) his protected characteristic was a factor in the adverse impact: Moore v. BC (Education) , 2012 SCC 61 at para. 33.
[24] There is no dispute that Mr. Sarba has the protected characteristics of race and colour. Mr. Sarba is Black and African Canadian. The Respondents dispute that Mr. Sarba experienced any adverse impact in his employment. Specifically, they deny that any of its employees used the N-Word, say they investigated Mr. Sarba’s complaints about racist harassment in the workplace, and that Mr. Sarba’s employment was not terminated.
[25] Therefore, I must decide if, on a balance of probabilities, Mr. Sarba has experienced an adverse impact in employment, and if so, whether Mr. Sarba’s race and colour were a factor in that adverse treatment.
B. Witnesses
[26] In addition to his own testimony, Mr. Sarba called his co-workers: Mr. Auriat, Mr. Harding, and Mr. Teneycke as witnesses. The three individual respondents: Mr. Moham, Mr. Chauvin, and Mr. Homeniuk appeared as witnesses for the respondents.
[27] Because the parties disagree on what happened, I must assess the credibility and reliability of the witnesses’ evidence to make findings of fact. Credibility and reliability are distinct concepts. Credibility considers the truthfulness of a witness’s testimony while reliability considers its accuracy: Christensen v. Save-a-Lot Holdings Corp. (No. 3) , 2023 BCHRT 125 at para. 13.
[28] I can accept all, some, or none of a witness’ testimony and I may attach different weight to different parts of a witness’ 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.
[29] In assessing a witness’ credibility and reliability I have considered such factors as the witness’ ability to accurately observe, recall, and recount what occurred, whether the evidence is plausible, whether supporting or contradictory evidence exists, and whether their evidence is internally or externally consistent: Harder v. Tupas-Singh and another , 2022 BCHRT 50 at para. 6. Where the parties give conflicting evidence, I have examined 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.
C. First allegation of racial harassment – Comments by Dale Ross
[30] Mr. Sarba alleges that he was repeatedly subjected to racial harassment in the form of derogatory comments about visible minorities and racial slurs by Mr. Ross.
[31] The Respondents deny Mr. Ross used the N-Word. Mr. Ross passed away prior to the hearing but they say he denied using the N-Word and derogatory comments when he was questioned by Mr. Moham in September 2019. Mr. Ross provided a written statement dated September 7, 2019, conceding that he is “rough around the edges” but denying that he is a racist or that he used a racial slur. They say Mr. Sarba’s allegations are not corroborated by witnesses or supported in the evidence.
[32] For the following reasons, I find Mr. Ross used the N-Word and made derogatory comments about Mr. Sarba’s race and colour which adversely affected him.
[33] Taken as a whole, I am persuaded by Mr. Sarba’s version of events, which I find to be consistent with the testimony of the witnesses and the documentary evidence.
[34] Mr. Sarba’s testimony is that Mr. Ross repeatedly used racial slurs and made discriminatory remarks in his presence. He referred to Mr. Sarba as “my N-Word”, complimented Mr. Sarba for being a “hard working N-Word” unlike other black people and said that Ruskin was “working [Mr. Ross] like a N-Word.” Mr. Sarba observed Mr. Ross also mistreated Mr. Auriat, another visible minority employee. Mr. Ross made derogatory comments about Mr. Auriat’s Indigenous ancestry, yelled and screamed at Mr. Auriat, and called him an idiot.
[35] Mr. Sarba’s version of events is consistent with the contemporaneous documentary evidence. Mr. Auriat’s written complaint states that he heard Mr. Ross say to Mr. Sarba, “they really work [Mr. Ross] like a N-Word.” Mr. Sarba’s version of events related to Mr. Auriat’s complaint corroborates that Mr. Ross used the N-Word. The witness statement by the union steward dated September 7, 2019, states that Mr. Auriat reported that Mr. Ross made the comment about being worked like a N-Word.
[36] The Respondents say the evidence of Mr. Sarba and Mr. Auriat is not credible because they could not recall with certainty the circumstances of providing the written witness statements about Mr. Ross. They say Mr. Sarba gave inconsistent testimony about who from Ruskin had asked him to provide a witness statement, who he submitted it to, and with whom he met about Mr. Ross. They say Mr. Auriat could not recall whether he made a complaint to Ruskin or the union, whether his complaint was in writing, and whether Mr. Ross was terminated because of the allegations. I do not agree that Mr. Sarba and Mr. Auriat’s inability to recall certain details makes their evidence less credible. I find that witnesses’ fading memories of events that occurred four years earlier is to be expected. In my view, the circumstances in which Mr. Sarba and Mr. Auriat provided their written statements is a detail that does not undermine their credibility about the central issue: whether Mr. Ross made discriminatory comments. On this issue the testimony of Mr. Sarba and Mr. Auriat were consistent with each other.
[37] The Respondents also argue that, because only Mr. Sarba and Mr. Auriat witnessed Mr. Ross making discriminatory remarks, I should place little weight on their evidence. They say no other employee of Ruskin heard Mr. Ross saying racist slurs. I do not agree. The evidence of Mr. Sarba and Mr. Auriat is that Mr. Ross used racial slurs in their presence because they are racialized and subordinate to Mr. Ross at Ruskin. It is consistent with their evidence that Mr. Ross would not use discriminatory language to non-racialized co-workers or his superiors. I may accept that Mr. Ross did not use racial slurs in the presence of Mr. Harding, Mr. Teneycke, Mr. Moham, and Mr. Chauvin. However, that is not determinative on whether Mr. Ross used racial slurs when speaking with or to Mr. Sarba.
[38] The Respondents point out that Mr. Sarba did not raise the issue of Mr. Ross’ racist remarks earlier. Inherent in the Respondents’ denial of Mr. Sarba’s allegation is the implication that if discrimination occurred Mr. Sarba should have raised the issue earlier. Mr. Sarba has explained that he was fearful of losing his job if he reported the discrimination by his immediate superior. I find the explanation reasonable and persuasive.
[39] Further, I place little weight on the written statement made by Mr. Ross on September 7, 2019. First, the statement was not put to Mr. Sarba in cross-examination. The Tribunal has endorsed the rule in Browne v. Dunn , (1893), 1893 CanLII 65 (FOREP) 6 R. 67 (H.L) which provides that a party’s failure to cross-examine an opposing party on a point, after which the first party calls contradictory evidence, may affect the weight given to the contradictory evidence: Mann v. JACE Holdings , 2012 BCHRT 234 at para. 70. Second, it is unclear to me if Mr. Ross is denying he used the N-Word or he is denying it is a racial slur. In the statement Mr. Ross concedes he is “rough around the edges” but denies he is a racist and says he did not make “an apparent racial slur”. As well, the Respondents could not recall what information was presented to Mr. Ross or the circumstances in which he provided the written statement.
[40] Taken as a whole, I find that Mr. Sarba’s version of events more consistent with the preponderance of probabilities. I find that Mr. Ross uttered racial slurs, specifically the N-Word to, about, and in front of Mr. Sarba.
[41] Mr. Sarba says that he was offended by Mr. Ross’ words and treatment of visible minorities. He says that Mr. Ross, as a foreman, was a person in authority and his use of dehumanizing and demeaning language tainted the workplace. Mr. Sarba says this conduct negatively impacted his sense of safety at work.
[42] This is a case where the N-Word was used repeatedly over a period of months by Mr. Sarba’s immediate superior, Mr. Ross. In my view, the utterance of the N-Word by Mr. Ross is sufficient to find an adverse impact in employment connected to Mr. Sarba’s protected characteristic. This is because, viewed in its historical and social context the N-Word is a particularly virulent and egregious racial slur aimed at dehumanizing Black people, used here by Mr. Sarba’s superior to demean him and keep him in his place: Pardo v. School District No. 43 , 2003 BCHRT 71 at para. 12.
[43] This is a case where Mr. Sarba was subjected to racial slurs, including the N-Word on more than one occasion. The circumstance of this case is more analogous to Francis v. BC Ministry of Justice (No. 3), 2019 BCHRT 136 where Mr. Francis experienced racialized comments and slurs on a daily basis.
[44] I find that Mr. Sarba has established, on a balance of probabilities, that Mr. Ross used the N-Word and made derogatory comments about Mr. Sarba’s race and colour which adversely affected him.
D. Second allegation of racial harassment – Meeting with Mr. Moham
[14] Mr. Sarba met with Mr. Moham on September 9, 2019, to discuss the allegations about Mr. Ross. Mr. Sarba says during this meeting Mr. Moham repeatedly used the N-Word. Mr. Sarba says he found it shocking that an employee of Ruskin investigating the use of the N-Word would repeatedly use the slur. Mr. Sarba says he told Mr. Moham it upset him to hear the word being used but Mr. Moham told him it was okay because they were both minorities. Mr. Moham denies using the N-Word. He says he met with Mr. Sarba to understand his allegations about Mr. Ross. Mr. Moham says he pointed to Mr. Sarba’s written witness statement and asked Mr. Sarba if it was true.
[45] Based on the totality of the evidence before me, I am persuaded that Mr. Moham used the N-Word during the meeting with Mr. Sarba.
[46] First, while Mr. Sarba and Mr. Moham are the only witnesses who attended the meeting, the testimony of the other witnesses about events surrounding the meeting is consistent with Mr. Sarba’s version of events.
[47] Ruskin’s general foreman, Mr. Harding, saw Mr. Sarba and the union steward exit the meeting with Mr. Moham. He testified that both Mr. Sarba and the union steward appeared shaken and when he asked them what had happened, they said Mr. Moham had repeatedly used the N-Word during their meeting. Mr. Harding recalled both Mr. Sarba and the union steward were incredulous and in a state of disbelief.
[48] Mr. Homeniuk testified that Mr. Sarba met with him on September 10, 2019, and reported that Mr. Moham had repeatedly used the N-Word. Mr. Homeniuk’s evidence is that Mr. Sarba was “excited” and agitated. He says Mr. Sarba began by talking about the history and the plight of the African people.
[49] Second, there is contemporaneous documentary evidence that supports Mr. Sarba’s version of events. Specifically, the notes taken by the union steward during the meeting and Mr. Sarba’s notes made after the meeting state that Mr. Moham used the N-Word. The union steward writes that Mr. Moham asked Mr. Sarba if he was ever called a “black N-Word” and whether Mr. Sarba might have misheard Mr. Ross say, “they’re working me like a N-Word.” The notes also say Mr. Moham asked Mr. Sarba if Mr. Ross used the word “fashist[sic]” instead of the N-Word if he would have been angry. Mr. Sarba’s notes say Mr. Moham told him he was “taking being called a N-Word personally.”
[50] The Respondents say I should place no weight on the documentary evidence. They say the union steward’s notes are unreliable because he was not called as a witness. They say Mr. Sarba’s notes were not taken in the meeting but afterwards and are therefore unreliable. I agree that I must be cautious about placing weight on documentary evidence in the absence of an opportunity for cross-examination. I also appreciate that the notes are subjective accounts of how the authors perceived the events unfolding before them and must be approached with caution: Eva obo others v. Spruce Hill Resort and another , 2018 BCHRT 238 at paras. 24-25. I place limited weight on the documentary evidence but I find they are probative in so far as they are consistent with the other credible evidence before me on which I rely to make my finding.
[51] I find that Mr. Moham used the N-Word during the meeting with Mr. Sarba.
[52] The Respondents did not argue the point, but I note that the use of the N-Word, even in the context of an employer investigating a complaint about the use of the N-Word, is problematic because it compounds the discrimination and further poisons the work environment. Where conduct occurs during a single incident, the Tribunal will consider all the circumstances to determine if there is a violation of the Code : Pardo at para. 12. Unlike Mr. Ross, Mr. Moham is not alleged to have used the N-Word outside of the meeting on September 9, 2019.
[53] On balance, I find the Pardo factors support a finding of discrimination in these circumstances. The racial slur occurred in the context of a workplace investigation about racial discrimination and harassment. Mr. Moham testified that he took the investigation seriously because he understood the N-Word to be a particularly virulent and egregious racial slur. Mr. Moham used the N-Word multiple times throughout the meeting. Mr. Sarba’s evidence is that he found it disturbing to hear the N-Word being used in the meeting and to be questioned on whether he had heard it used by Mr. Ross. Mr. Sarba told Mr. Moham it upset him to hear the N-Word being used. Mr. Sarba’s evidence is that Mr. Moham said he shouldn’t be using the N-Word, but it was acceptable because both he and Mr. Sarba are visible minorities.
[54] I also consider Mr. Sarba’s allegation within the larger social context of anti-black racism and specifically the stereotype identified in Francis at para. 289, that racialized people are overly sensitive. In my view, Mr. Moham equating being called the N-Word with being called a fascist, and saying Mr. Sarba is taking things personally implies that Mr. Sarba’s response to the N-Word being used is an overreaction.
[55] Viewed in light of the whole of the evidence, I find that Mr. Sarba has met his evidentiary burden to establish that Mr. Moham used the N-Word several times during the meeting of September 9, 2019. I find that Mr. Sarba experienced an adverse impact when his employer, in the course of an investigation of a complaint of racial harassment, repeated and continued to use offensive racial slurs to Mr. Sarba. Mr. Sarba says he felt isolated, helpless, and that his workplace was not a safe place because of his racialized identity.
[56] I find that Mr. Sarba has established this portion of his complaint on a balance of probabilities.
E. Alleged lack of investigation of Mr. Moham
[57] Employers have an obligation for maintaining a discrimination-free work environment: British Columbia Human Rights Tribunal v. Schrenk , 2017 SCC 62 at paras. 54 and 56. Because the Code obliges employers to respond to allegations of discrimination, a failure to reasonably respond can amount to discrimination: Laskowska v. Marineland of Canada Inc., 2005 HRTO 30 at paras. 52-53; Jamal v. TransLink Security Management and another (No. 2), 2020 BCHRT 146 at para. 106 . The failure to investigate a complaint of discrimination can independently cause harm, and therefore, can independently be a discriminatory breach under the Code : Employee v. The University and another (No. 2) , 2020 BCHRT 12 at para. 272. In assessing whether an employer has met this duty, relevant factors include whether the employer has a proper understanding of discrimination, whether the employer treated the allegations seriously and dealt with it promptly and sensitively, and whether the employer restored a discrimination free work environment: Laskowska at para. 59.
[58] Mr. Sarba met with Mr. Homeniuk on September 10, 2019, and reported that Mr. Moham had repeatedly used the N-Word during the September 9, 2019, meeting. Mr. Sarba says he provided information for an investigation into Mr. Moham’s conduct, but the Respondents did not investigate his allegations or take action to address racism in the workplace.
[59] The Respondents say there was no need for an investigation because Mr. Sarba did not want to pursue his complaint. They say they nevertheless investigated the complaint, found there was insufficient evidence that Mr. Moham used the N-Word, and, despite finding there was no racial harassment, made some recommendations to support a discrimination-free workplace.
[60] On the whole of the evidence, I am persuaded that any investigation or response by the Respondents to Mr. Sarba’s complaint of racial harassment was cursory, inadequate, and caused further discriminatory harm to Mr. Sarba.
[61] First, I find the evidence is not consistent with the Respondents’ position that no investigation was necessary because Mr. Sarba did not pursue the complaint. Mr. Sarba testified he approached Mr. Homeniuk and told him what had occurred at the meeting on September 9, 2019. Mr. Sarba said he believed he provided sufficient information to initiate an investigation. Mr. Homeniuk’s evidence is that Mr. Sarba was agitated and excited when reporting that Mr. Moham used the N-Word in the meeting. Given Mr. Sarba’s undisputed evidence that the N-Word is a deeply degrading and dehumanizing slur, I find it is not credible to believe that Mr. Sarba would report that the word was used by Mr. Moham and immediately decide not to pursue a complaint.
[62] I also do not find it credible that if Mr. Sarba declined to pursue a complaint and did not provide a statement of complaint Mr. Homeniuk would, unilaterally, decide to pursue an investigation. The evidence before me is that Mr. Homeniuk collected witness statements from Mr. Moham and Mr. Smith and completed a written report. In my view, the evidence is consistent with Mr. Sarba’s version of events where he made a complaint and provided sufficient information for the Respondents to proceed with an investigation of his complaint.
[63] Next, the Respondents have provided little evidence about any investigation into Mr. Moham’s conduct. Mr. Homeniuk testified that he conducted an investigation, despite saying it was not necessary because Mr. Sarba did not pursue a complaint. A copy of an incident investigation report was submitted into evidence. Mr. Homeniuk said he is the author of the report. The report includes “Risk Rate” codes. Mr. Homeniuk was unable to explain what the Risk Rate codes (Severity, Probability, Rate, Revised Rate) meant, what the numbers he assessed each code signified, or what information he relied upon to determine the ranking of each Risk Rate. Mr. Homeniuk said this portion of the report was likely completed by the corporate security manager who assisted him in the investigation. The corporate security manager was not called as a witness. Because Mr. Homeniuk was unable to explain the meaning of the report he authored and the corporate security manager, who the Respondents said could provide this evidence, was not called as a witness, I am left with little information about the investigation and the conclusions made by Ruskin.
[64] Further, Mr. Homeniuk said his investigation involved collecting witness statements from Mr. Moham and Mr. Smith, a superintendent who was present when Mr. Sarba approached Mr. Homeniuk on September 10, 2019. Mr. Homeniuk said it was unnecessary to collect a statement from Mr. Sarba because he did not want to pursue a complaint and asked to stop hearing about harassment. Mr. Homeniuk did not interview the union steward who attended the meeting between Mr. Moham and Mr. Sarba. Mr. Homeniuk said he believed it was not necessary to speak with the union steward because Mr. Sarba was not pursuing a complaint. In my view, failing to interview the only non-party witness who was present at the incident complained of, is a significant omission.
[65] Finally, the Respondents say, as a result of Mr. Homeniuk’s investigation they set out two action items which they completed; (1) that Mr. Moham have a representative in meetings moving forward; and (2) that Ruskin’s harassment policy be reviewed with the crew. There is little evidence before me that either of these remedial steps were completed.
[66] Mr. Homeniuk testified that he spoke with Mr. Moham about having a representative attend all future meetings. Ruskin’s workplace policy states that “action plans shall be documented and kept on file.” However, no documentary materials support that a meeting between Mr. Homeniuk and Mr. Mohan about the action item took place. There is also no evidence that Ruskin’s harassment policy was reviewed with its employees. The only evidence of the harassment policy being raised is Mr. Moham’s testimony that at the morning toolbox meeting on September 10, 2019, before Mr. Sarba made a complaint to Mr. Homeniuk, he told the crew that harassment and bullying should be reported. If any wider discussion about discrimination in the workplace occurred, it is not documented in the evidence and there was little testimony to support that such meetings or training occurred.
[67] In fact, Mr. Sarba’s evidence is that no such review of the discrimination policy occurred, and the workplace environment became more hostile and toxic. Both Mr. Auriat and another co-worker, Mr. Teneycke, testified that outside of Mr. Moham’s statement at the September 10, 2019, toolbox meeting there was no review of the policy. They both testified that individual foremen, including Mr. Chauvin, expressed their dissatisfaction with how the complaint about Mr. Ross occurred and said future disputes should be dealt with “man-to-man” between employees. Their evidence was that the crew became divided, and that people supported Mr. Chauvin’s perspective that workplace conflicts should be dealt with amongst the crew without making a formal complaint.
[68] On the whole of the evidence, I am satisfied that the Respondents did not reasonably address Mr. Sarba’s complaint about Mr. Moham’s use of the N-Word at the September 9, 2019, meeting, nor did they address Mr. Sarba’s overarching concern about racism in the workplace.
[69] Under the circumstances I find Mr. Sarba has established that he complained about Mr. Moham’s use of the N-Word and that the response to his complaint was not reasonable or appropriate. Mr. Sarba says that a result of the inadequate investigation and lack of remedial steps, his feeling of isolation and fear for his personal safety in the workplace increased.
F. Third allegation of racial harassment-Fight with Mr. Chauvin
[70] The parties agree there was a physical altercation between Mr. Sarba and Mr. Chauvin on October 2, 2019. The parties disagree on who instigated the confrontation. Mr. Sarba says his race and colour were a factor in the fight because Mr. Chauvin called him the N-Word during the fight. Mr. Chauvin denies he used the N-Word.
[71] Neither party provided any witnesses or statements from other employees who witnessed the altercation. Therefore, I must make a finding of credibility between the two versions of events presented based on the testimonies of Mr. Sarba and Mr. Chauvin.
[72] For the following reasons I find Mr. Sarba’s version of events more in harmony with the preponderance of probabilities and therefore the more credible version of events.
[73] First, the parties agree that Mr. Chauvin entered a room where Mr. Sarba and a co-worker were socializing to confront Mr. Sarba. Mr. Chauvin said he entered because he wanted to ask Mr. Sarba about rumors in the camp that Mr. Sarba was upset with him. I find it more likely that a person entering a room uninvited is the aggressor in a confrontation. I do not find it likely or persuasive that Mr. Chauvin entered a room where Mr. Sarba was socializing with another co-worker simply to ask why Mr. Sarba seemed upset.
[74] Second, I find Mr. Chauvin’s version of events does not address Mr. Sarba’s injury. It is undisputed that during the altercation Mr. Sarba lost one of his dreadlocks.
[75] Mr. Sarba says after they left the co-worker’s room, Mr. Chauvin began walking into Mr. Sarba and pushing him. Mr. Sarba says he tried to push Mr. Chauvin away, at which point Mr. Chauvin grabbed Mr. Sarba’s neck and hair and tore out one of his dreadlocks.
[76] In Mr. Chauvin’s version of events, Mr. Sarba was the one who was walking into Mr. Chauvin. Mr. Chauvin says he was walking backwards until he hit a wall and then attempted to push Mr. Sarba away. Mr. Chauvin says in response Mr. Sarba punched him in the jaw and forehead.
[77] Mr. Chauvin’s version of events does not address how one of Mr. Sarba’s dreadlocks was pulled out of his head. It is not disputed that Mr. Sarba lost one of his dreadlocks in the altercation. It is not readily apparent to me how Mr. Chauvin pushing Mr. Sarba away could result in a dreadlock being pulled out of Mr. Sarba’s head. I find Mr. Sarba’s version of events where Mr. Chauvin was grabbing Mr. Sarba’s neck and hair more likely in the circumstances.
[78] Finally, I find Mr. Sarba’s version of events that Mr. Chauvin, once knocked down to the ground, used the N-Word to be more persuasive that the Respondents’ denial that Mr. Chauvin used the N-Word. The parties agree that the confrontation concluded with Mr. Sarba knocking Mr. Chauvin to the ground. Mr. Sarba says that once on the ground, Mr. Chauvin began yelling racial epithets including the N-Word. Mr. Chauvin denies he used the N-Word.
[79] The Respondents say Mr. Sarba’s testimony on this point is not credible because he did not write that Mr. Chauvin used the N-Word in his witness statement about the incident completed on October 3, 2019. Mr. Sarba first raised the allegation that Mr. Chauvin used the N-Word in his complaint filed on December 13, 2019.
[80] Viewed in context I do not agree that Mr. Sarba’s evidence is not credible. Mr. Sarba explained in his testimony that, when completing his witness report, he believed it was more important to detail who initiated the physical altercation. I also find the context of this altercation in Mr. Sarba’s tenure at Ruskin significant. This was the third instance where an employee of Ruskin spoke the N-Word. The evidence before me is that Mr. Sarba made two earlier complaints of racism and felt his complaints were not handled appropriately. Mr. Sarba testified that by this point in his employment, he felt disheartened and upset that the workplace would not be a safe space for him as a racialized employee. He says he felt scrutinized by co-workers as a “snitch.” I find Mr. Sarba’s explanation of why he did not specifically mention that the N-Word had been used by Mr. Chauvin at the time of the altercation reasonable when viewed in context of the other complaints.
[81] I find, on a balance of probabilities, that Mr. Sarba has established that Mr. Chauvin assaulted Mr. Sarba and used the N-Word.
[82] I find that Mr. Sarba has established this portion of his complaint. I find that Mr. Chauvin physically assaulted Mr. Sarba, tore out one of his dreadlocks from his head, and yelled the N-Word at Mr. Sarba. Given my finding that Mr. Chauvin used a racial slur during a physical assault I am satisfied that Mr. Sarba’s race and colour were a factor in the adverse impact.
G. The end of Mr. Sarba’s employment with Ruskin
[83] On October 3, 2019, as a result of the fight, both Mr. Sarba and Mr. Chauvin were suspended by Ruskin for two weeks. Mr. Sarba returned to his home in the lower mainland. Mr. Sarba says that in the past Ruskin would contact him and arrange his travel to the work site. This time Mr. Sarba was not contacted by Ruskin and he understood his employment was terminated. Mr. Sarba says his race and colour were a factor in his termination because his termination was a result of his multiple complaints about racial harassment in the workplace.
[84] The Respondents deny Mr. Sarba was terminated and say he resigned. Mr. Homeniuk says Mr. Sarba told him on October 3, 2019, that he would not be returning to the work site after his suspension. Mr. Homeniuk says he told Mr. Sarba to contact him if he changed his mind but he was never contacted by Mr. Sarba to return to work or request a flight back to the work site.
[85] Termination of employment is an adverse impact under the Code : s. 13(1)(a) and DeMedeiros v. Rovalution Automotive Ltd. and another , 2023 BCHRT 182 at para. 22.
[86] For the reasons that follow I find that Mr. Sarba’s employment was terminated by Ruskin. I further find that Mr. Sarba’s race and colour, specifically his earlier complaints about racism in the workplace, was a factor in the decision to terminate his employment.
[87] I find the evidence of the Respondents on this point is not credible. Mr. Homeniuk testified it was Mr. Sarba who said he would not be returning to work after his suspension. This version of events was not put to Mr. Sarba, and I consequently place little weight on Mr. Homeniuk’s testimony per the rule in Browne v. Dunn .
[88] Mr. Homeniuk said Mr. Smith, the superintendent, was also present during this meeting. Mr. Smith was not called as a witness to corroborate Mr. Homeniuk’s version of events. Mr. Sarba argues that I should apply the adverse inference rule to draw an adverse inference against the Respondents. I do not agree. The adverse inference rule is discretionary and premised on the likelihood that failure to call material evidence that is uniquely available to a witness is an indication that such evidence would not have been favourable to the party who fails to call the witness: 656621 B.C. Ltd. V. David Moleman Painting Ltd. , 2022 BCSC 1683 at para. 180. In this case, Mr. Homeniuk has given evidence and Mr. Smith’s role as a witness would presumably be to corroborate Mr. Homeniuk’s testimony. I decline to exercise my discretion to draw an adverse inference from the Respondents’ failure to call Mr. Smith given that Mr. Homeniuk provided evidence about the October 3, 2019, meeting with Mr. Sarba. I find instead that the lack of corroborating evidence goes to the weight I place on Mr. Homeniuk’s testimony.
[89] Mr. Homeniuk’s version of events is also not consistent with the documentary evidence, specifically the ROE issued by Ruskin. Eight days into Mr. Sarba’s two-week suspension, Ruskin issued an ROE on October 11, 2019. The reason given for issuing the ROE is “shortage of work/end of contract or season.” This contradicts the Respondents’ position that Mr. Sarba resigned when leaving the work camp on October 3, 2019.
[90] The Respondents did not say there was a shortage of work at the Prince Rupert project in October 2019. On the contrary, Mr. Homeniuk’s testimony was that there was a need for workers at that time and he regarded Mr. Sarba as a good employee whom he would have welcomed back. On cross-examination Mr. Homeniuk said he did not know why the ROE says there was a shortage of work when he understood that Mr. Sarba resigned.
[91] Next, the undisputed evidence is that Ruskin was responsible for booking flights for employees to arrive at the work site in advance of their scheduled shifts. Mr. Homeniuk, Mr. Teneycke, and Mr. Chauvin all testified that Ruskin generally books the flight for its employees about a week in advance of their scheduled shift. It is undisputed that Ruskin did not book flights for Mr. Sarba to return to the Prince Rupert work site after his suspension. Mr. Sarba says he understood, when leaving the site on October 3, 2019, that he would be returning to work after his two-week suspension was lifted on October 23, 2019. He says that when he did not receive a flight itinerary from Ruskin, he understood his employment had been terminated and took another job.
[92] I have considered the Respondents’ submissions and evidence that Mr. Sarba was not terminated. Mr. Homeniuk and Mr. Chauvin testified that sometimes employees are not given their flight itinerary on time. The Respondents say it was Mr. Sarba’s responsibility to contact Ruskin administration to inquire about flights if he wanted to return to the work site. I do not find this submission persuasive. The evidence is that Ruskin arranged a return flight for Mr. Chauvin, who was suspended for the same duration as Mr. Sarba. Mr. Chauvin said it was Ruskin who phoned him to ask about his availability. Also, Mr. Sarba’s undisputed testimony is that he phoned other Ruskin employees during his suspension and was informed they had been provided flights back to site by Ruskin.
[93] I find the evidence that Mr. Sarba alone was not provided with a flight to return to the worksite when other employees, and especially Mr. Chauvin, the other employee who was suspended for the fight, received flights from Ruskin supports a reasonable inference that Mr. Sarba’s employment was terminated by Ruskin.
[94] The Respondents have not suggested that Mr. Sarba was anything but a good employee. Mr. Homeniuk testified that he thought Mr. Sarba was a good worker and he would have welcomed him back to the work site. Under the circumstances, the Respondents have not pointed to any other reason why they would not arrange for Mr. Sarba to return to the work site other than their assertion that he resigned, which I have found to be not credible. Therefore, the only reasonable conclusion I can reach is that Mr. Sarba’s employment was terminated by Ruskin and that his complaints regarding racism in the workplace, and therefore his race and colour, were a factor in the decision to terminate the employment.
[95] I have found that each of the incidents alleged by Mr. Sarba occurred, and that they were discrimination contrary to the Code . Next, I consider what remedies are appropriate in the circumstances.
V Remedies
A. Section 37(2)(a) Cease the Contravention
[96] Having found the complaint is justified, I order the Respondents to cease their contravention of the Code , and to refrain from committing the same or similar discrimination, pursuant to s. 37(2)(a).
B. Section 37(2)(b) Declaratory Order
[97] Under s. 37(2)(b) of the Code , the Tribunal may make a declaratory order that the conduct complained of, or similar conduct, is contrary to the Code . In the circumstances of this case, I consider it appropriate to make such an order. I declare that the conduct of each of the Respondents is discrimination contrary to s. 13 of the Code .
C. Section 37(2)(c) – Ameliorate the effects of the discriminatory practice
[98] Under s. 37(2)(c) of the Code , the Tribunal may order a respondent to take steps to ameliorate the effects of the discriminatory practice and order a Respondent to adopt and implement an employment equity program or other special program to ameliorate the conditions of disadvantaged individuals or groups.
[99] Mr. Sarba seeks an order from the Tribunal that Ruskin implement an anti-harassment and anti-discrimination policy and to educate its staff and employees about their rights and responsibilities under the policy. He also asks the Tribunal to order Ruskin to implement an employment equity program or other program to ameliorate the use of racial slurs and racial harassment by its staff and employees.
[100] The Respondents deny the allegation of discrimination. They say there is a workplace harassment and violence policy in place.
[101] I find that an order to ameliorate the effects of discrimination is appropriate for the following reasons.
[102] I appreciate that Ruskin has an existing policy for safe work practices which employees are required to review when onboarded. A copy of the Workplace Harassment Violence Policy was submitted into evidence. The policy was last revised on July 19, 2018. Therefore, it is over five-years old, and in my view, it would be appropriate to review and update the policy.
[103] I have found each of the Respondents discriminated and multiple employees used a racial slur. There is also evidence before me that other Ruskin employees such as Mr. Auriat experienced inappropriate comments being made and a hostile work environment. I find that the evidence supports that Mr. Sarba’s experience may be part of a larger pattern of discrimination.
[104] I also take note of the evidence that some employees stated their preference for conflicts to be resolved “man-to-man” rather than involving management.
[105] Under the circumstances, I find it appropriate to order that Ruskin review and update its existing workplace discrimination policy within three months of the date of this decision. Once the policy is updated, I further order Ruskin to ensure its staff and employees are trained on their rights and responsibilities under the policy, including the process by which issues can be raised with management, within three months of the updates. My decision not to be more directive is intended to leave to Ruskin the precise way in which it will review and revise its existing policy, and how it will educate and train its employees of the updated policy.
[106] I reach a different conclusion in regard to Mr. Sarba’s request for an order that Ruskin implement an employment equity program. In the circumstances of this complaint, and with the limited evidence Mr. Sarba provided on the issue, I am not persuaded that the Tribunal ought to order Ruskin to adopt an employment equity program. The other orders I make are capable of ameliorating the adverse impacts that Mr. Sarba experienced due to discrimination. Ruskin is required to stop its discrimination and refrain from committing the same or similar contraventions in the future. The monetary awards issued in Mr. Sarba’s favour will compensate Mr. Sarba for out-of-pocket expenses, wage loss, and the impacts he experienced to his dignity, feelings, and self-respect.
D. Section 37(2)(d)(ii) Compensation – Out of Pocket Expenses and Lost Wages
[107] Section 37(2)(d)(ii) of the Code gives the Tribunal discretion to compensate a person for all, or a part, of any wages or salary lost, or expenses incurred because of discrimination. The purpose of compensation is to restore a complainant, to the extent possible, to the position they would have been in had the discrimination not occurred. There must be a causal connection between the loss claimed and the discriminatory conduct: Gichuru v. Law Society of British Columbia (No. 9) , 2011 BCHRT 185 [ Gichuru ] at para. 298-303, upheld in 2014 BCCA 396.
[108] I begin with Mr. Sarba’s claim for out-of-pocket expenses. Mr. Sarba says he attended counselling sessions to deal with the emotional distress he experienced as a consequence of the discrimination. Mr. Sarba also says he incurred legal fees prior to the filing of his human rights complaint.
[109] The Respondents deny any amount is recoverable because they deny they discriminated. I understand they are arguing that the out-of-pocket expenses do not flow from their conduct. However, I have found that the Respondents discriminated in employment contrary to the Code .
[110] Mr. Sarba provided invoices for four counselling sessions he attended between March 1, and April 29, 2021. Mr. Sarba says he attended the sessions to deal with the psychological and emotional effects of the discrimination. Based on Mr. Sarba’s description of the issues he says the sessions were for, I am satisfied that the counselling sessions are a consequence of the discrimination. I award Mr. Sarba $546 for his out-of-pocket counselling expenses.
[111] The Tribunal has held that reasonable legal fees incurred before filing a complaint are compensable: McGowan v. Pretty Estates , 2013 BCHRT 40 at paras. 40-42. The Tribunal has also exercised its discretion to award compensation for hearing-related disbursements: Francis v. BC Ministry of Justice (No. 5) , 2021 BCHRT 16 at paras. 228-229.
[112] Mr. Sarba says he paid legal fees of $839.04 prior to filing his complaint. The Respondents have not disputed that Mr. Sarba incurred this amount for legal fees. Under the circumstances, I am satisfied that Mr. Sarba incurred legal fees of $839.04 because of the discrimination, before filing his human rights complaint and make an award of that amount.
[113] Therefore, I award Mr. Sarba an award of $1,385.04 ($546 + $839.04) for out-of-pocket expenses.
[114] I next turn to the loss of income. Mr. Sarba says he suffered a loss of income from October 3, 2019, when his employment ended, to January 1, 2023, of $71,065.12. Mr. Sarba says he has a specialized trade and despite his efforts to mitigate his losses by taking other jobs, he is earning significantly less than he would have with Ruskin.
[115] It is undisputed that Mr. Sarba was earning an average gross weekly amount of $2,505.90. Based on this amount, Mr. Sarba calculates that his gross earnings for the remaining 12 weeks of 2019 would have been $30,070.80. He also calculates that his gross annual earning for subsequent years would have been $130,000.
[116] Mr. Sarba says that he found other work and earned $21,938.42 in 2019, $90,176.63 in 2020, $121,890.03 in 2021, and $115,000.00 in 2022. Based on the difference between his earnings and what he says he would have earned at Ruskin, Mr. Sarba calculates his total loss of income is $71,065.12.
[117] I have found that, but for the discrimination, Mr. Sarba would have continued to work at Ruskin and would have earned his full wages. The Respondents have not argued that there are factors to limit compensation. Nevertheless, I must exercise my discretion on a principled basis: Gichuru v. The Law Society of British Columbia ( No. 9) , 2011 BCHRT 185 at para 303, upheld in 2014 BCCA 396.
[118] The evidence before me is that Mr. Sarba enjoyed the nature of his work at Ruskin. He testified that he would have continued to work for Ruskin on various projects.
[119] While a witness testified that Ruskin suspended its operations due to the COVID-19 pandemic and never returned to complete the project, I am not persuaded that this is a basis to reduce the wage loss award. First, while the Respondents provided a letter supporting their position that operations were suspended during the initial months of COVID-19, there is no documentary materials supporting their position that the project was wholly abandoned. Second, the evidence is that Ruskin had a number of projects throughout the province. Mr. Moham testified that when the project in Prince Rupert was abandoned, he moved on to another Ruskin project elsewhere. I find Mr. Sarba could have continued to work for Ruskin even if this particular project was abandoned.
[120] In all of these circumstances, I find no basis for a deduction from the wage loss award claimed and issue an award in Mr. Sarba’s favour in the amount of $71,065.12 for lost wages pursuant to section 37(2)(d)(ii) of the Code .
E. Section 37(2)(d)(iii) Injury to Dignity, Feelings and Self-Respect
[121] Mr. Sarba seeks an award of $75,000 for injury to his dignity, feelings and self-respect. He originally sought an award of $25,000 in his Statement of Remedies. In his closing submissions he says in light of his evidence at the hearing of the severe and continued impact the discrimination had on him, and the higher amount of the Tribunal’s recent awards, an award of $75,000 or greater is appropriate.
[122] The Respondents made no arguments as to the appropriate quantum in the event Mr. Sarba was successful in establishing a breach of the Code . The Respondents also did not make submissions about Mr. Sarba increasing the amount he is seeking in his closing submissions.
[123] Under s. 37(2)(d)(iii) of the Code , the Tribunal has the discretion to award compensation for injury to dignity. The purpose of these awards is compensatory, not punitive. The amount of compensation depends on the specific facts and circumstances in a given case and relevant factors: Gichuru v. Law Society of British Columbia (No.2) , 2011 BCHRT 185, aff’d in 2014 BCCA 396, at para. 260. At the same time, for the purposes of consistency and fairness, it is often helpful to consider the range of awards made in similar cases.
[124] The Tribunal often considers several factors including the nature of the discrimination; the complainant’s social context or vulnerability; and the specific effect the discrimination had on the complainant: Oger v. Whatcott (No. 7) , 2019 BCHRT 58 at para. 225. I will consider each of these factors in turn.
[125] This is a case where the discriminatory interactions were repeated over the course of the employment and perpetuated by employees in supervisory positions. Mr. Sarba reported discrimination and sought help from his employer only to have the people tasked with conducting an investigation and remedying the discrimination perpetuate the discriminatory acts. After reporting that he was subjected to racial slurs by Mr. Ross, Mr. Sarba was further exposed to the same slurs from Mr. Moham in the course of Ruskin’s investigation. Further, Ruskin’s response caused other employees to express dissatisfaction with Mr. Sarba making a complaint. Mr. Chauvin instructed other employees that conflicts should not be reported but dealt with personally, exacerbating Mr. Sarba’s feeling of isolation and vulnerability at work. Mr. Sarba was assaulted and his employment was terminated. I find the nature of the discrimination by the Respondents in this case is a factor that supports an award on the higher end.
[126] As the Supreme Court of Canada has recognized, “work is one of the most fundamental aspects in a person’s life” and “a person’s employment is an essential component of his or her sense of identity, self-worth and emotional well-being”: Reference Re Public Service Employee Relations Act (Alta.), 1987 CanLII 88 (SCC), [1987] 1 SCR 313 at p. 368. Because of the significance of employment to a person’s dignity, cases which involve the termination of employment often attract the top end of this Tribunal’s awards: see e.g. Senyk v. WFG Agency Network (No. 2), 2008 BCHRT 376 at paras. 463-470.
[127] Next, I consider Mr. Sarba’s vulnerability or the social context of the discrimination. As I stated above this case involves an employment relationship within the context of ongoing and pervasive anti-Black racism in Canada. There is an inherent power imbalance between employers and employees that make employees vulnerable, especially at the time of termination: Senyk v. WFG Agency Network (No. 2) , 2008 BCHRT 376 at paras. 463-464.
[128] Further, the evidence before me is that this is a remote work site where employees live and work in an isolated work camp. Employees rely on the employer for lodging, transportation, and managing the work site. Mr. Sarba was particularly vulnerable as one of few racialized employees at the work site.
[129] Finally, the most significant factor in my determination of an award is the effect the discrimination had on Mr. Sarba. The evidence is that the contravention was demeaning, and dehumanizing, and it destroyed Mr. Sarba’s belief that he could ever be an equal participant in society.
[130] Mr. Sarba testified that he now feels fearful for his safety on work sites. He said he no longer believes other individuals or groups such as his union have the ability to protect him. He says he does not feel safe in public spaces. Most notably Mr. Sarba said that his perception of community, law, and society has changed for the worse and he no longer believes that substantive equality is possible. He said the discrimination made him feel racialized in a way that he had not before and that he feels there is no place for him in Canadian society.
[131] Mr. Sarba testified about despairing that if he were to have a child, he would be unable to protect them or teach them in good faith that they are valued and equal members of Canadian society. I understand Mr. Sarba to be saying that not only did the discrimination negatively affect his self-worth but that he fears bringing children into this world who will face similar anti-Black racism.
[132] Mr. Sarba described the effects of the discrimination as making him feel angry with the Respondents, society, and himself. He said he frequently feels anger, fear and vigilance and no longer enjoys socializing with others. He testified that his emotions have made it difficult to maintain his relationships and his partner has said she is worried about him. He has seen a counsellor and has obtained an emotional support animal to help manage his emotions. Despite this, he said he continues to suffer from bouts of anger, insomnia, and overwhelming emotions.
[133] Mr. Sarba testified emotionally about feeling he was not a valued member of society. Mr. Sarba may never feel that he is an equal participant in Canadian society. I fully accept Mr. Sarba’s evidence about the effect of the discrimination on his life. It was profound and continues into the present. I find the effect of the discrimination supports a significant award.
[134] In his statement of remedies Mr. Sarba refers me to a number of cases he says are similar to his circumstances. The awards in these cases range from $10,000 ( Rai and others v. Shark Club of Langley (No.2) , 2013 BCHRT 204), $20,000 ( Bratzer v. Victoria Police Department (No. 3) , 2016 BCHRT 50), $20,000 ( The Sales Associate v. Aurora Biomed Inc and others (No. 3) , 2021 BCHRT 5), to $25,000 ( Basic v. Esquimat Denture Clinic and another , 2020 BCHRT 138).
[135] In his closing submission Mr. Sarba says in light of his evidence at the hearing of the significant impact the discrimination had on him, his circumstances are more closely mirrored by the Tribunal’s recent case of Mema v. City of Nanaimo (No. 2) , 2023 BCHRT 91. There a racialized complainant was awarded $50,000 when his employment was terminated based on racial stereotypes. Mr. Sarba says a damage award should be higher in his case because, unlike in Mema , the racism he experienced was overt, including the repeated use of a racial slur.
[136] I find Mema most helpful to my analysis. I appreciate the Tribunal’s awards for injury to dignity have trended upward: Benton v. Richmond Plastics , 2020 BCHRT 82 at para. 78. The cases cited by Mr. Sarba in his statement of remedies are dated and Mema is a more recent case. Further, while none of the cases mirror exactly the present circumstances, Mema is about racial discrimination in employment while the other cases are about discrimination in other areas and grounds.
[137] I am satisfied that the impact of the discrimination on Mr. Sarba was severe and continues to this day. However, I had limited evidence before me about any negative health-related impacts or any social and financial costs arising from the discrimination. Unlike in the case of Mema where Mr. Mema had evidence from his doctor, I did not have medical evidence outlining the impacts on Mr. Sarba’s mental health.
[138] In the context of the evidence before me, and in the absence of submissions from the Respondents, I am satisfied that an award of $65,000 is reasonable. The amount is higher than Mema , reflecting the explicit, overt nature of the discrimination Mr. Sarba experienced and the serious effect it had on his trust in society. It is less than the amount sought of $75,000 as I did not have extensive evidence before me about any physical or mental health impact on Mr. Sarba.
F. Interest
[139] The tribunal has the discretion to award interest on awards. An award of interest is part of the compensatory nature of the Tribunal’s awards, recognizing that but for the discrimination a complaint would have had the use of money now awarded. The interest places the complainant in the economic position they would have been in but for the discrimination: Vasil v. Mongovius and another (No. 3) , 2009 BCHRT 117.
[140] I find it appropriate to order pre-judgment interest on the wage loss award and post-judgment interest on all the amounts awarded as part of an attempt to fully compensate Mr. Sarba for his loss and injury. The interest is to be paid based on the rates set out in the Court Order Interest Act .
VI CONCLUSION
[141] I make the following orders:
a. I order the Respondents to cease and refrain from committing the same or a similar contravention of the Code : s. 37(2)(a).
b. I declare that the Respondents’ conduct contravened s. 13 of the Code : s. 37(2)(b).
c. I order Ruskin to:
i. Within three months of this decision, review and update its workplace harassment and violence policy; and
ii. Within three months of the policy being updated, educate its staff and employees about their rights and responsibilities under the updated policy: s.37(2)(c)(i).
d. I order the Respondents to pay Mr. Sarba $1,385.04 for expenses incurred because of the discrimination: s. 37(2)(d)(ii).
e. I order the Respondents to pay Mr. Sarba $71,065.12 as wages lost because of discrimination: s. 37(2)(d)(ii).
f. I order the Respondents to pay Mr. Sarba $65,000.00 as compensation for injury to his dignity, feelings, and self-respect: s.37(2)(d)(iii).
g. I order the Respondents to pay Mr. Sarba pre-judgment interest on the wage loss award until paid in full based on the rates set out in the Court Order Interest Act .
h. I order the Respondents to pay Mr. Sarba post-judgment interest on all awards until paid in full, based on the rates set out in the Court Order Interest Act .
Edward Takayanagi
Tribunal Member