Shahbakhshi v. Melo and another, 2025 BCHRT 87
Date Issued: April 8, 2025
File: CS-002102
Indexed as: Shahbakhshi v. Melo and another, 2025 BCHRT 87
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:
Yassaman Shahbakhshi
COMPLAINANT
AND:
Julia Melo and Pure Luxe Aesthetics Inc.
RESPONDENTS
REASONS FOR DECISION
Tribunal Member: Andrew Robb
On their own behalf: Yassaman Shahbakhshi
Agent for the Respondents: George Valinho
Dates of Hearing: September 9, 2024, December 12, 2024, and January 14, 2025
Location of Hearing: Microsoft Teams Videoconference
I INTRODUCTION
[1] Yassaman (Yassi) Shahbakhshi is Deaf. She filed a complaint against Pure Luxe Aesthetics Inc. [ Pure Luxe ] and its owner, Julia Melo. Ms. Shahbakhshi says she interviewed for a job at Pure Luxe in February 2020, and Ms. Melo refused to hire her when Ms. Melo found out she was Deaf. Ms. Shahbakhshi says this was discrimination, contrary to s. 13 of the Human Rights Code . As remedies for the discrimination, she seeks compensation for lost wages and injury to dignity.
[2] Ms. Melo, on her own behalf and on behalf of Pure Luxe, denies Ms. Shahbakhshi’s account of the job interview, and denies discriminating. She says she never refused to hire Ms. Shahbakhshi. She says she offered Ms. Shahbakhshi a job interview, knowing Ms. Shahbakhshi was Deaf, but Ms. Shahbakhshi left the interview without speaking to her.
[3] For the reasons set out below, I accept Ms. Shahbakhshi’s version of events, and I find that both respondents, Ms. Melo and Pure Luxe, are responsible for discriminating against her. I order the respondents to pay Ms. Shahbakhshi $15,000 as compensation for injury to dignity. I do not order compensation for lost wages because I find Ms. Shahbakhshi would not have been hired in any event, due to the start of the Covid pandemic.
II FACTS
[4] Ms. Shahbakhshi testified on her own behalf, and called one other witness: Carmanah Carson-Austin, the American Sign Language interpreter who was hired to interpret for Ms. Shahbakhshi during her job interview at Pure Luxe. Ms. Melo was the only witness on behalf of the respondents.
[5] The witnesses did not agree about what happened when Ms. Shahbakhshi went to Pure Luxe for the job interview. The accounts given by Ms. Shahbakhshi and Ms. Carson-Austin were generally similar, but Ms. Melo’s description of events was very different.
[6] I will first set out the undisputed background facts about the parties and their communications before the job interview. Then I will describe the witnesses’ respective versions of what happened at the interview, and explain which evidence I accept, and why. Finally I will describe what happened after the interview, since it is relevant to the remedies sought by Ms. Shahbakhshi.
A. Background
[7] Pure Luxe is a beauty salon. Ms. Melo has owned and operated Pure Luxe for over 21 years. The job Ms. Shahbakhshi applied for at Pure Luxe was a “laser technician” position. The laser is used as part of aesthetic treatments to improve the appearance of a person’s skin. Pure Luxe staff who work with the laser machines must have appropriate certification.
[8] Before she applied for the laser technician position at Pure Luxe, Ms. Shahbakhshi briefly operated her own beauty clinic. But she says she had few customers and the business was not profitable, so she decided to look for part-time work. At the hearing she did not recall exactly how long her business was operational for, but she believes it was about a year, starting around winter 2019. She says her business was “dormant” when she applied for the position at Pure Luxe.
[9] Ms. Shahbakhshi says jobs at spas and beauty salons or clinics are good for Deaf people, because they generally do not require much verbal communication with clients. In her testimony, Ms. Melo agreed that beauty salon jobs require little verbal communication, and that technology, including text messaging, makes non-verbal communication easier. At the hearing, Ms. Melo did not suggest that Ms. Shahbakhshi was unqualified for the laser technician job just because she is Deaf.
[10] In January 2020, Ms. Melo needed a new employee at Pure Luxe. She published a job posting on Indeed, a job search website. The job posting itself was not in evidence before me, but there was no dispute that it said Pure Luxe was hiring a part-time laser technician, with duties including consultations with clients and administering treatments using the laser machines. Ms. Melo says the salary was not listed in the posting, but she was planning to start at $18 per hour, with an increase after an initial probationary period. She says she received about eight responses to the posting.
[11] On January 22, 2020, after the job posting was published on Indeed, Ms. Melo was contacted by a vocational counselor who was working with Ms. Shahbakhshi. Ms. Shahbakhshi says the counselor worked for a non-profit organisation that was helping her find work. The same organisation hired Ms. Carson-Austin to interpret at the job interview.
[12] The vocational counselor’s message to Ms. Melo said Ms. Shahbakhshi was interested in the laser technician position. The message described some of Ms. Shahbakhshi’s qualifications, and included the following paragraph:
She is extremely reliable, very motivated and eager to apply her skills and knowledge and to develop further her abilities as an Esthetician. She is a deaf person, but it has never been an obstacle for her to deliver an excellent customer service. [as written]
[13] The message did not otherwise refer to the fact that Ms. Shahbakhshi is Deaf. The message included a link to Ms. Shahbakhshi’s resumé but Ms. Melo testified that she did not receive the resumé. The resumé was not in evidence before me.
[14] Ms. Melo says she read the vocational counselor’s message and understood that Ms. Shahbakhshi was Deaf. As described below, Ms. Shahbakhshi and Ms. Carson-Austin’s evidence about the job interview indicates that Ms. Melo did not realise Ms. Shahbakhshi was Deaf, despite the counselor’s message.
[15] Ms. Melo contacted Ms. Shahbakhshi through the Indeed messaging platform on January 23, 2020, and offered her a job interview, which was scheduled for January 29. Ms. Shahbakhshi accepted the offer and asked for Pure Luxe’s address. Ms. Melo provided the address on the morning of January 29, but Ms. Shahbakhshi apparently did not see that message in time, and did not attend the interview. Ms. Melo later messaged her again and asked if she wanted to reschedule the interview for February 5. Ms. Shahbakhshi confirmed that date. The parties had no further communications before the interview.
[16] None of the messages in evidence before me, except the vocational counselor’s January 22 message to Ms. Melo, refer to the fact that Ms. Shahbakhshi is Deaf.
B. Evidence about the job interview
[17] All three witnesses gave evidence about what happened when Ms. Shahbakhshi went to Pure Luxe for the job interview on February 5, 2020. Ms. Shahbakhshi’s evidence was as follows. She says that when she arrived at Pure Luxe for the interview, Ms. Carson-Austin was already there. Ms. Melo was not present initially—she was in the back. Ms. Shahbakhshi and Ms. Carson-Austin briefly introduced themselves to each other, before Ms. Melo came out. When Ms. Melo came out, Ms. Melo did not introduce herself but immediately said she could not hire Ms. Shahbakhshi because she would be unable to communicate with clients, since she is Deaf. Ms. Melo said she had not realised that Ms. Shahbakhshi was Deaf. Ms. Shahbakhshi tried to explain that she could communicate with clients using text messages and body language, but Ms. Melo said that would be inappropriate.
[18] Ms. Shahbakhshi describes Ms. Melo’s body language at the interview as cold and “frozen to me.” Ms. Shahbakhshi says that when Ms. Melo made it clear she would not get the job, she walked out of Pure Luxe, into the street, and went home. This all took place very quickly—she estimates she was in Pure Luxe for approximately one minute, from when she entered until she walked out.
[19] Next I describe Ms. Carson-Austin’s evidence. She says she arrived at Pure Luxe before Ms. Shahbakhshi. Ms. Melo came to the front counter and asked if Ms. Carson-Austin was there for the interview. Ms. Carson-Austin explained that she was the sign language interpreter, and Ms. Melo seemed confused by this. Ms. Melo said she did not realise Ms. Shahbakhshi was Deaf, or that she needed an interpreter. Ms. Carson-Austin did not want to discuss Ms. Shahbakhshi without Ms. Shahbakhshi being present, so she then went back outside to wait for Ms. Shahbakhshi. When Ms. Shahbakhshi arrived they entered Pure Luxe together. Ms. Melo came over and said there was no job available. Ms. Shahbakhshi asked why not, and Ms. Melo said because Ms. Shahbakhshi would be unable to communicate with clients. Ms. Shahbakhshi tried to advocate for herself, saying she could communicate in writing or by text message or gesture, and asking Ms. Melo to look at her resumé. But Ms. Melo made it clear she would not consider hiring Ms. Shahbakhshi. She said again that she did not realise Ms. Shahbakhshi was Deaf. Ms. Shahbakhshi became frustrated and left Pure Luxe, and Ms. Carson-Austin followed Ms. Shahbakhshi out.
[20] Ms. Carson-Austin said this all happened in less than 10 minutes, from when she first walked into Pure Luxe, until she followed Ms. Shahbakhshi out. Ms. Carson-Austin described Ms. Melo’s body language as closed, during the time Ms. Shahbakhshi was in Pure Luxe.
[21] Ms. Melo’s evidence was as follows. When Ms. Carson-Austin walked into Pure Luxe, Ms. Melo was in the back. Ms. Melo walked to the front, grabbed her pen and paper, and asked Ms. Carson-Austin to sit down, before Ms. Carson-Austin said she was the interpreter, not the candidate. Ms. Melo knew Ms. Shahbakhshi was Deaf, but did not realise she needed an interpreter. She asked Ms. Carson-Austin, “How would this work?” Ms. Melo says she believed there was technology available that would allow Ms. Shahbakhshi to communicate with clients, but she was concerned that Ms. Shahbakhshi might need an interpreter at all times, and she wanted to know how she could accommodate Ms. Shahbakhshi. In cross-examination, Ms. Carson-Austin agreed that Ms. Melo might have said, “How would this work?” before Ms. Shahbakhshi arrived.
[22] Ms. Melo says her conversation with Ms. Carson-Austin lasted about one minute, before Ms. Shahbakhshi entered Pure Luxe. When Ms. Shahbakhshi walked in, Ms. Carson-Austin and Ms. Shahbakhshi immediately had a conversation in sign language. Ms. Melo did not know what they were saying, and they did not involve her in the conversation. The sign language conversation lasted less than one minute, and during the conversation Ms. Shahbakhshi became visibly upset. Ms. Shahbakhshi then walked out, slamming the door behind her. Ms. Carson-Austin followed her out. Ms. Melo says she never had a chance to talk to Ms. Shahbakhshi. She denies saying she would not hire Ms. Shahbakhshi because she is Deaf. She denies that her body language was closed.
[23] Ms. Shahbakhshi and Ms. Melo did not try to contact each other, after the job interview. There is no evidence before me that they had any further communications until Ms. Shahbakhshi filed this complaint, in September 2020.
a. Legal principles for assessing credibility
[24] Since the parties gave conflicting evidence about an important issue in this complaint, I must decide which evidence to accept. In making this decision, I start from the presumption that all the witnesses are telling the truth: Hardychuk v. Johnstone, 2012 BCSC 1359 at para. 10. Where a witness’s testimony conflicts with other evidence, I must assess the trustworthiness of the testimony “based on the veracity or sincerity of a witness and the accuracy of the evidence that the witness provides”: Bradshaw v. Stenner , 2010 BCSC 1398 at para. 186. A witness’s evidence may not be trustworthy because they have made a conscious decision not to tell the truth, or a witness may testify honestly but their evidence may not be reliable because of their inability to accurately recall or recount the event: R. v. HC, 2009 ONCA 56 at para. 42; Youyi Group Holdings (Canada) Ltd. v. Brentwood Lanes Canada Ltd ., 2019 BCSC 739 at paras. 89-90.
[25] In making findings of fact, I must determine which evidence is most plausible based on a balance of probabilities : Ms. S v. Cannae Holdings , 2018 BCHRT 47 at para. 12. In assessing which evidence is most plausible, the Tribunal considers each witness’s credibility and reliability. As Bradshaw says, this assessment must examine factors including the firmness of the witnesses’ memories, whether their evidence changes in cross-examination, whether their evidence seems unreasonable, impossible, or unlikely, and whether they have a motive to lie. I also consider whether supporting or contradictory evidence exists, and whether a witness’s evidence is internally and externally consistent: Harder v. Tupas-Singh and another , 2022 BCHRT 50 at para. 6. I must also consider whether each witness’s evidence was in “harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions”: Faryna v. Chorny , 1951 CanLII 252 (BC CA) at para. 11.
[26] I can accept all, some, or none of a witness’s testimony, and I may attach different weight to different parts of a witness’s testimony: Meldrum v. Astro Ventures Ltd. , 2013 BCHRT 144 at para. 4; Campbell v. Vancouver Police Board (No. 4) , 2019 BCHRT 275 at para. 18.
[27] The witnesses were testifying about events that happened very quickly, nearly five years earlier. I consider that over this length of time, memories have understandably faded, shifted, or hardened around a particular version of events: Clarke v. City of Vancouver and another , 2024 BCHRT 298 at para. 24.
b. The respondents’ submissions about Ms. Shahbakhshi’s credibility
[28] Ms. Shahbakhshi did not offer detailed submissions about credibility. As I understand her argument, she says her evidence should be accepted because it is corroborated by Ms. Carson-Austin.
[29] Ms. Melo argues that Ms. Shahbakhshi’s evidence is not reliable because of errors and inconsistencies in her testimony. Ms. Melo says Ms. Shahbakhshi was incorrect about the date when Ms. Melo first offered her a job interview, changed her testimony about whether she attended a June 2020 training session online or in person, and began operating her own business shortly after the interview on February 5, 2020, even though she said her negative experience at the interview left her temporarily unable to look for other work.
[30] Ms. Melo also cites additional reasons to doubt Ms. Shahbakhshi’s credibility:
a. Ms. Shahbakhshi refused to admit that she registered her business’s website shortly after the job interview, despite being confronted with evidence that she did so.
b. Ms. Shahbakhshi admitted that the information on her business website exaggerates the success of her previous business, in order to attract customers.
c. Ms. Shahbakhshi testified that she was unable to look for work for two years due to her traumatic experience at Pure Luxe, but she later admitted she found temporary work in 2021.
d. Ms. Shahbakhshi did not disclose relevant evidence about her own business, or her tax filings, or any other documentation of her income.
[31] I am not persuaded that Ms. Shahbakhshi’s error about the exact date when Ms. Melo first contacted her, or her inconsistent evidence about whether she attended the June 2020 training session online or in person, are relevant to her credibility. These were minor errors about the details of events that happened almost five years earlier, with limited relevance to the issues in Ms. Shahbakhshi’s complaint.
[32] Regarding Ms. Shahbakhshi’s exaggeration of her experience on her business website, I do not find that it undermines the credibility of her evidence about the job interview. The respondents provided a printout of her business website which says she previously ran a clinic “successfully” for approximately one year. In Ms. Shahbakhshi’s testimony she said this was a reference to the business she started before she applied for the position with Pure Luxe. Her evidence was that this business lacked customers and was not profitable, and soon closed down after a failed health inspection, so I agree with the respondents that it was an exaggeration to call it “successful”. However, I understand the purpose of the website was to promote Ms. Shahbakhshi’s new business, and I find the exaggeration was not so egregious that it should affect the credibility of her evidence about the job interview.
[33] Regarding Ms. Shahbakhshi’s refusal to admit that she registered her business’s website on the date suggested by the respondents, I find the evidence provided by the respondents is not sufficient to establish that her evidence was incorrect. The respondents provided a printout from a website called ICANN.org, showing that the domain name that Ms. Shahbakhshi used for her business website was created on February 11, 2020. But the website does not say who registered the domain name, and it does not refer to Ms. Shahbakhshi. I also note there is no evidence before me about the reliability or the significance of the information on the website, and the respondents did not offer any relevant submissions. On its own, without any contextual information, I am not satisfied that the ICANN website printout is sufficient to prove Ms. Shahbakhshi registered her business website on February 11, 2020.
[34] Regarding Ms. Shahbakhshi’s failure to disclose relevant documentation, I note that she is self-represented, she faces systemic barriers as a Deaf person, and there is no evidence before me that the respondents ever asked her for the documents they say she should have disclosed. In these circumstances, I do not accept that the failure to disclose is relevant to her credibility.
[35] There were inconsistencies in Ms. Shahbakhshi’s evidence about her job search and her attempt to operate her own business. At one point she said she closed her business for the first time due to the Covid pandemic, but elsewhere she said it was closed a few months before the pandemic, for multiple reasons, including a failed health inspection. She suggested that she did not work for two years after February 5, 2020, but later admitted that she worked for three months in a retail position, in 2021.
[36] I do not understand the respondents to suggest, and I do not find, that Ms. Shahbakhshi attempted to mislead the Tribunal. The discrepancies in the evidence demonstrate, and Ms. Shahbakhshi frankly admitted, that her recollection of the dates when things happened was poor. While I accept that Ms. Shahbakhshi’s evidence about her efforts to find work after the job interview changed over the course of the hearing, it was apparent to me that she was doing her best to recall details that she had not thought about in a long time. In my view, the inconsistencies in her evidence about her efforts to find work after the interview do not affect the credibility of her evidence about what happened at the interview.
c. Conclusion about credibility
[37] For the following reasons, I accept the evidence of Ms. Shahbakhshi and Ms. Carson-Austin, about what happened at the job interview on February 5, 2020.
[38] Despite the differences between their accounts of what happened, all three witnesses were firm in their recollection of the job interview. None of them changed their evidence on cross-examination, except Ms. Carson-Austin’s admission that Ms. Melo might have said, “How would it work?” I do not consider this a significant change. Even if Ms. Melo asked this question, that would not necessarily support her evidence that she knew Ms. Shahbakhshi was Deaf and was trying to determine how she could accommodate Ms. Shahbakhshi. Asking “How would it work?” would be just as consistent with Ms. Carson-Austin and Ms. Shahbakhshi’s evidence that Ms. Melo did not realise Ms. Shahbakhshi was Deaf.
[39] The respondents submit that Ms. Carson-Austin’s evidence included inappropriate opinions about Ms. Shahbakhshi’s qualifications for the laser technician position. I do not accept this submission. As I understood Ms. Carson-Austin’s testimony, she was describing Ms. Shahbakhshi’s statements to Ms. Melo about Ms. Shahbakhshi’s qualifications, not giving her own opinion about those qualifications. If the respondents are suggesting this could indicate a bias in favour of Ms. Shahbakhshi, I disagree.
[40] I note that, unlike Ms. Melo and Ms. Shahbakhshi, Ms. Carson-Austin has no personal interest in the outcome of this complaint. I find the similarities between the evidence given by Ms. Shahbakhshi and Ms. Carson-Austin supports a finding that they recall the job interview more accurately than Ms. Melo. While there were some differences in their evidence, about whether they met inside or outside Pure Luxe, and about what exactly Ms. Melo and Ms. Shahbakhshi said to each other, their evidence was very similar on what I consider the most important points. They both recalled that Ms. Melo said she did not realise Ms. Shahbakhshi was Deaf, and they both recalled that Ms. Melo said Ms. Shahbakhshi was unqualified for the position because she could not communicate with clients. They also both recalled that Ms. Shahbakhshi tried to explain how she could communicate with clients, but Ms. Melo would not reconsider her decision not to hire Ms. Shahbakhshi.
[41] Ms. Melo argues that Ms. Shahbakhshi and Ms. Carson-Austin’s evidence that Ms. Melo did not know Ms. Shahbakhshi was Deaf is implausible, since the vocational counselor’s message to Ms. Melo, dated January 22, 2020, said Ms. Shahbakhshi was Deaf. I note the counselor’s statement about Ms. Shahbakhshi being Deaf was in the middle of a paragraph that described her qualifications in a generic way, and was not highlighted in any way. I also note that in the later messages between Ms. Melo and Ms. Shahbakhshi, there is no reference to the fact that Ms. Shahbakhshi is Deaf. Considering all the evidence before me, and particularly that Ms. Shahbakhshi and Ms. Melo both gave evidence that Ms. Melo said she did not realise Ms. Shahbakhshi was Deaf, I find it more likely than not that Ms. Melo either did not notice the relevant part of the vocational counselor’s message, or forgot about it before February 5, 2020.
[42] For these reasons, where Ms. Melo’s evidence about the job interview differs from that of Ms. Shahbakhshi and Ms. Carson-Austin, I prefer the evidence of Ms. Shahbakhshi and Ms. Carson-Austin.
C. Findings of fact about the job interview
[43] I make the following findings on a balance of probabilities, meaning I have found these facts to be more likely than not.
[44] On February 5, 2020, Ms. Carson-Austin arrived at Pure Luxe before Ms. Shahbakhshi. Ms. Melo was not aware, when Ms. Carson-Austin arrived, that Ms. Shahbakhshi was Deaf. Ms. Melo had received the vocational counselor’s message, which said Ms. Shahbakhshi was Deaf. But she either did not read the message carefully or she had forgotten about it by February 5.
[45] After Ms. Melo’s initial interaction with Ms. Carson-Austin, Ms. Melo realised Ms. Shahbakhshi was Deaf. Ms. Melo assumed this made her unqualified for the job.
[46] When Ms. Shahbakhshi arrived, Ms. Melo immediately said she could not hire Ms. Shahbakhshi because Ms. Shahbakhshi could not communicate with clients. Ms. Shahbakhshi tried to explain how she could communicate, but Ms. Melo was not willing to consider Ms. Shahbakhshi’s explanations. Ms. Melo was firm in her decision not to hire Ms. Shahbakhshi. Perceiving this, Ms. Shahbakhshi became upset and walked out. The parties had no further communication about the job.
D. After the job interview
[47] Ms. Melo says she did not end up hiring anyone for the position Ms. Shahbakhshi applied for. Like all salons and personal services businesses in the province, Pure Luxe was required to close in March 2020, pursuant to a public health order related to the Covid pandemic. Ms. Melo says there were concerns about Covid among her clientele even before the public health order, which led to a slowdown in her business in February 2020.
[48] Ms. Melo says Pure Luxe reopened in May 2020, but business remained slow. Many clients stopped coming as often, and others stopped coming altogether. Ms. Melo says she could not afford to keep other staff during this time, and she was the only employee of Pure Luxe until 2022.
[49] Although I have not accepted Ms. Melo’s evidence about the job interview, I accept that she did not hire anyone for the position Ms. Shahbakhshi applied for, and that business was slow until 2022. I find this is consistent with “the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable”, considering the circumstances faced by beauty salons and other personal services businesses, at the beginning of the Covid pandemic.
[50] There is no evidence before me that Ms. Shahbakhshi looked for work again before 2021. She says she could not look for work due to the traumatic impact of her experience with Pure Luxe. She says she lived with her mother during this time, and she was supported by her family.
[51] Around July 2021, Ms. Shahbakhshi was offered, but turned down, a position at a dry cleaner’s. Later in 2021 she worked for three months in retail, but her contract was not renewed beyond this three-month period. She started up her own beauty clinic business again in 2022, and has operated it, in various locations, since then.
III Decision
[52] Section 13 of the Code applies to employment. Section 13(1) says a person must not refuse to employ a person, or discriminate against a person, because of that person’s disability.
[53] To establish that the respondents discriminated against her, Ms. Shahbakhshi must prove:
a. She had a disability;
b. She experienced an adverse impact regarding employment; and
c. Her disability was a factor in the adverse impact.
Moore v. British Columbia (Education) , 2012 SCC 61 at para. 33.
[54] There is no dispute that Ms. Shahbakhshi is Deaf, or that her Deafness is a disability within the meaning of the Code . The issues I must decide are whether she experienced an adverse impact regarding employment at Pure Luxe, and if so whether her Deafness was a factor in the adverse impact.
[55] The respondents argue that even if Ms. Melo had interviewed Ms. Shahbakhshi on February 5, 2020, Ms. Shahbakhshi would not have gotten the job for several reasons, including the beginning of the Covid pandemic. The respondents say this means Ms. Shahbakhshi cannot establish that she faced discrimination. They cite Oxley v. British Columbia Institute of Technology , 2002 BCHRT 33, and other cases where human rights tribunals found a complainant can establish that a failure to hire was discriminatory by showing they would have been hired if the respondent had not considered their protected characteristic.
[56] The respondents’ argument is not consistent with the test for discrimination set out in Moore . The test does not require Ms. Shahbakhshi to prove she would have gotten the job “but for” her disability, only that her disability was a factor in the decision not to hire her. As the Tribunal said in Hawknes v. Vancouver Public Library (No. 2) , 2017 BCHRT 250, at para. 73:
The Oxley analysis creates one way by which a complainant can prove, through inference, that their protected characteristic was a factor; that is, by showing that they were as qualified as the successful candidate and that the distinguishing characteristic was one protected by the Code . However, the connection may also be demonstrated by pointing to aspects of the hiring process that embed barriers against people based on their protected characteristics.
[57] The respondents’ submissions about why Ms. Shahbakhshi would not have gotten the job, regardless of her Deafness, are relevant to Ms. Shahbakhshi’s argument that she is entitled to compensation for lost wages. I discuss these submissions below, in my decision about the remedies Ms. Shahbakhshi seeks.
[58] I have found that upon realising Ms. Shahbakhshi was Deaf, Ms. Melo told her she was unqualified for the laser technician position because she would be unable to communicate with clients. Ms. Shahbakhshi tried to explain how she could communicate with clients, but Ms. Melo refused to consider her explanation.
[59] From these findings, I conclude that Ms. Melo did not give Ms. Shahbakhshi a chance to show she was qualified for the position, and refused to employ Ms. Shahbakhshi. I find this had an adverse impact on Ms. Shahbakhshi, regarding employment at Pure Luxe. Even if Ms. Shahbakhshi would not have ultimately gotten the job, for reasons unrelated to her being Deaf, I find her Deafness was a factor in Ms. Melo’s decision not to hire her.
[60] Since Ms. Shahbakhshi has established the elements of the Moore test, the burden shifts to the respondents to show their conduct was justified. But the respondents did not suggest, in their submissions, that verbal communication with clients was a bona fide occupational requirement for the laser technician position, under s. 13(4) of the Code , or that they could not have accommodated Ms. Shahbakhshi. In the absence of any argument about justification, I am not persuaded the respondents’ conduct was justified.
[61] I find the respondents discriminated against Ms. Shahbakhshi, contrary to s. 13 of the Code .
IV REMEDIES
[62] Having found that Ms. Shahbakhshi’s complaint is justified, I must order the respondents to cease the contravention of the Code and refrain from committing a similar contravention: s. 37(2)(a) of the Code .
[63] Ms. Shahbakhshi seeks compensation for lost wages due to the discrimination, and an award for injury to dignity. For the following reasons, I decline to order compensation for lost wages, but I find she is entitled to an award for injury to dignity.
A. Lost wages
[64] Section 37(2)(d)(ii) of the Code says the Tribunal may order a person who contravened the Code to compensate the person discriminated against for wages or salary lost due to the contravention. The purpose of a lost wages award is to put the person who experienced discrimination in the position they would have been in if there had been no discrimination: Gichuru v. The Law Society of British Columbia (No. 9) , 2011 BCHRT 185 at para. 300.
[65] Although I have found that Ms. Shahbakhshi’s Deafness was a factor in Ms. Melo’s decision not to hire her, I am not satisfied that she would have been hired, even if there had been no discrimination.
[66] I accept Ms. Melo’s evidence that she did not hire anyone for the position for which Ms. Shahbakhshi applied. Pure Luxe was required to close in March 2020 due to a public health order, and it did not reopen until May 2020. Even before Pure Luxe was forced to close, business had started to slow down due to some clients having concerns about Covid. After reopening, business continued to be slow, again due to widespread fear of Covid, and Ms. Melo did not employ anyone else until 2022.
[67] The respondents made further arguments about why Ms. Shahbakhshi was not qualified for the laser technician position. They say she did not have the appropriate certification to operate Pure Luxe’s laser machines at the time of the job interview. The evidence before me was that she obtained a form of certification in June 2020, after the job interview. The respondents also say they have a policy against hiring employees who have their own business, as Ms. Shahbakhshi did, because of a concern that they might try to steal Pure Luxe’s clients. The respondents argue that if the job interview had proceeded, on February 5, 2020, Ms. Melo would have ascertained that Ms. Shahbakhshi was not an appropriate candidate, because she was not qualified to use the laser machine and she had her own business. I accept that these factors would have weighed against hiring Ms. Shahbakhshi, but in my view the most compelling factor is the effect of the Covid pandemic, and the fact that Ms. Melo did not hire anyone for the position.
[68] The respondents further argue that Ms. Shahbakhshi failed to mitigate her damages by seeking other employment, after the job interview. In light of my finding that she would not have been hired for the laser technician position in any event, I do not find it necessary to consider this argument.
[69] I find that even if Ms. Melo had gone ahead with the job interview, without discriminating against Ms. Shahbakhshi, Ms. Melo still would not have hired Ms. Shahbakhshi, for reasons unrelated to Ms. Shahbakhshi’s Deafness. I decline to order compensation for lost wages.
B. Injury to dignity
[70] Section 37(2)(b)(ii) of the Code says that if the Tribunal finds a complaint is justified, it may order compensation for injury to dignity, feelings and self-respect.
[71] Ms. Shahbakhshi seeks compensation for injury to dignity in the amount of $20,000. The respondents say that if the Tribunal finds the complaint is justified, an appropriate injury to dignity award should be modest, in the range of $500 to $5,000.
[72] A violation of a person’s human rights is a violation of their dignity : Nelson v. Goodberry Restaurant Group Ltd. dba Buono Osteria and others , 2021 BCHRT 137 at para. 33. The purpose of an injury to dignity award is to address this harm. Determining the amount of an injury to dignity award depends on the specific facts and circumstances in any given case: Gichuru v. Law Society of British Columbia (No. 2) , 2011 BCHRT 185 at para. 260, upheld in 2014 BCCA 396. In making an injury to dignity award the Tribunal considers factors including the nature of the discrimination, the complainant’s social context or vulnerability, and the specific effect the discrimination had on the complainant: Oger v. Whatcott (No. 7) , 2019 BCHRT 58 at para. 225.
[73] Considering these factors, I find $15,000 is an appropriate amount. In this section I explain my reasons for this finding.
a. Nature of the discrimination
[74] I begin with the nature of the discrimination. I have found that the discrimination included Ms. Melo’s refusal to interview Ms. Shahbakhshi, or to consider her for the laser technician position, after Ms. Melo realised Ms. Shahbakhshi was Deaf. The entire interaction lasted only a few minutes.
[75] Like all conduct contrary to the Code , the nature of this discrimination was serious. Ms. Melo explicitly connected Ms. Shahbakhshi’s Deafness to her inability to do the job, and refused to consider Ms. Shahbakhshi’s explanations about how she could communicate with clients. I find Ms. Melo’s conduct was rash and prejudiced. I also find she was callous and insensitive to the effects that her words and actions were likely to have on Ms. Shahbakhshi.
b. Social context
[76] Under this heading I consider Ms. Shahbakhshi’s vulnerability as a Deaf person. In Eldridge v. British Columbia (Attorney General) , [1997] 3 SCR 624, the Supreme Court of Canada noted that persons with disabilities have often been excluded from the labour force, and Deaf persons in particular have been excluded from opportunities available to the hearing population: Eldridge at paras. 56-57. I consider that “the ‘disability’ of Deafness is largely, if not entirely, constructed by systemic barriers that operate to exclude and marginalize Deaf people”: Braun (by Braun) v. BC Family Hearing Resource Society , 2024 BCHRT 42 at para. 50.
[77] During the hearing Ms. Shahbakhshi spoke at length about the struggles she has faced as a Deaf person seeking employment. She has had difficulty accessing training that was readily available to hearing people. She has also faced difficulty finding employment, as she says most potential employers do not contact her after finding out she is Deaf. This case exemplifies that problem: on the evidence I have accepted, it appears Ms. Melo only offered Ms. Shahbakhshi an interview because Ms. Melo did not realise she was Deaf.
[78] I accept that Ms. Shahbakhshi was highly vulnerable to discrimination. Ms. Melo’s treatment of Ms. Shahbakhshi served to reinforce the barriers and exclusions that continue to marginalise Ms. Shahbakhshi and many other Deaf people.
c. Impact of the discrimination
[79] It is clear that the discrimination had a severe impact on Ms. Shahbakhshi. Ms. Shahbakhshi spoke eloquently about the psychological and emotional impact of her experience at Pure Luxe. But I have found that the impact does not include not getting the laser technician position, as Ms. Melo would not have hired Ms. Shahbakhshi in any event.
[80] Immediately after she left Pure Luxe, on February 5, 2020, Ms. Shahbakhshi says she felt humiliated and angry, and she remembers crying on her way home. Although five years have passed since then, she says the experience continues to affect her self-esteem. The experience caused her to lose motivation, and she says she stopped looking for work for a long time, although I note that she was offered other employment by July 2021.
[81] Ms. Shahbakhshi says she became isolated after the interview at Pure Luxe, as she was ashamed that she was unable to find employment, and she did not want to face her friends and acquaintances who were working. She felt devalued as a human being by Ms. Melo’s conduct, as she had been judged solely on the basis of being Deaf. She felt like the skills that she had worked so hard to get did not matter. She says her mental health suffered as a result of her shame about not working, and she worked with a mental health counselor to overcome these feelings.
[82] I accept Ms. Shahbakhshi’s evidence about the impact that the discrimination had on her. Her emotional testimony demonstrated that she still feels hurt by what happened at Pure Luxe. She says she will never forget it, it will always be a part of who she is. I find the impact of the discrimination was profound.
d. Case law
[83] Quantifying an award for injury to dignity is a difficult exercise. Previous cases in which the Tribunal has made such awards may create helpful precedents, but the Tribunal is not bound by a “range” of appropriate awards: University of British Columbia v. Kelly , 2016 BCCA 271 at paras. 60-61. Each case must be decided on its own facts, and the facts of every case are different. Nevertheless, it is helpful to review injury to dignity awards in other cases that have some similarities to this one.
[84] Ms. Shahbakhshi’s submissions referred to two cases that she says support her request for an injury to dignity award: Winkelmeyer v. Woodlands Inn and Suites , 2012 BCHRT 312 and Dunkley v. UBC and another , 2015 BCHRT 100. The respondents’ submissions cite Winkelmeyer and one other case: McGregor v. Morelli and Quarterway Hotel , 2006 BCHRT 277. In addition to the cases cited by the parties, I also consider Benton v. Richmond Plastics , 2020 BCHRT 82.
[85] In McGregor , the Tribunal found the respondent employer failed to hire the complainant because she was a single mother, even though she was qualified for the position. The Tribunal ordered compensation in the amount of $500, for both the loss of opportunity to be fairly considered for the position and the injury to her dignity. I do not find this case helpful because the Tribunal did not discuss the reasons for this amount in any detail.
[86] In Dunkley , the complainant was a medical doctor who was Deaf, whose specialist residency was terminated because a medical school and healthcare authority failed to accommodate her. In addition to awarding compensation for lost wages and other opportunities, the Tribunal found the complainant’s request for an injury to dignity award of $35,000 was appropriate. In reaching this conclusion the Tribunal considered that the loss of opportunity affected the complainant’s confidence and made her feel dehumanised and devalued: Dunkley at para. 769. The respondents’ actions made her powerless to achieve the career goals she had worked so hard for.
[87] Dunkley involved some factors similar to Ms. Shahbakhshi’s case, especially in relation to the emotional impact of the discrimination on the complainant. But although the complainant was Deaf, like Ms. Shahbakhshi, the context and the nature of the discrimination was different, and unlike Ms. Shahbakhshi the complainant in Dunkley lost a considerable amount of income as a result of the discrimination.
[88] In Winkelmeyer , the complainant was a person with disabilities that affected his mobility and motor skills. He applied for a job, and the employer seemed interested in him during a phone interview, until he disclosed his disability. The Tribunal found the employer refused to give him an in-person interview due to concerns about his disability, even though he had relevant experience and qualifications. The Tribunal found there was a serious possibility he would have gotten the job, if the employer had gone ahead with an in-person interview: Winkelmeyer at para. 85.
[89] In Winkelmeyer the Tribunal found that an injury to dignity award of $5,000 was appropriate. The Tribunal considered the emotional impact on the complainant, and the hardship of being denied an opportunity to prove himself due to preconceived notions about his abilities: Winkelmeyer at para. 76.
[90] I find the circumstances in Winkelmeyer , including the factors the Tribunal relied on in assessing the injury to dignity award, have some similarities to Ms. Shahbakhshi’s case. Much like the complainant in Winkelmeyer , Ms. Shahbakhshi was denied an opportunity to explain her experience and qualifications, due to preconceived notions about her abilities. But Winkelmeyer is somewhat dated and more recent cases have reflected an upward trend in injury to dignity awards.
[91] In Benton , unlike in Ms. Shahbakhshi’s case, the complainant was hired by the respondent. But she was fired on her first day of work, after disclosing her disability. The Tribunal accepted that the reason the complainant was fired was directly connected to her disability: she was told her medications and mental health issues made a senior employee feel uncomfortable. Regarding the impact of the discrimination, the Tribunal emphasised the significance of the termination of a person’s employment, but distinguished the complainant’s circumstances from cases involving termination after long-term employment: Benton at para. 69.
[92] The main factor the Tribunal considered in Benton was the severe impact of the discrimination on the complainant’s mental health. The Tribunal accepted evidence that she felt shame and isolated herself, she experienced depression after the termination of her employment, and she was unable to seek other employment for at least 18 months: Benton at paras. 74-76. The Tribunal concluded that an appropriate award for injury to dignity was $30,000.
[93] The nature and effect of the discrimination in Benton appears to have been more serious than Ms. Shahbakhshi’s case, especially in that the complainant in Benton lost her job and source of income as a result of the respondent’s conduct. However, I find there are significant similarities to Ms. Shahbakhshi’s experience, including the overt nature of the discrimination and the emotional impact on the complainant.
[94] Considering the Tribunal’s decisions in Benton and Winkelmeyer , the social construction of barriers that exclude Deaf people from employment, the serious nature of the discrimination experienced by Ms. Shahbakhshi, and the profound impact that the discrimination had on her, I find that an appropriate injury to dignity award is $15,000. The respondents are jointly and severally liable for this amount.
V Conclusion
[95] The respondents discriminated against Ms. Shahbakhshi regarding employment, on the basis of her disability, in violation of s. 13 of the Code .
[96] Under s. 37(2)(a) of the Code , I order the respondents to cease the contravention of the Code and refrain from committing the same or similar contraventions.
[97] Under s. 37(2)(d)(iii) of the Code , I order the respondents, jointly and severally, to pay Ms. Shahbakhshi $15,000 as compensation for injury to her dignity, feelings, and self-respect, plus post-judgment interest on this award until paid in full, based on the rates set out in the Court Order Interest Act .
Andrew Robb
Tribunal Member