2025 BCHRT 93 - BC Human Rights Tribunal

[2] Mr. Fletcher describes himself as Indian and a Christian. He was employed with HearCanada, then a subsidiary of Lifestyle Hearing Corporation [ Lifestyle ]. [1] HearCanada operated hearing care clinics, including clinics across Canada and in BC. Mr. Fletcher worked at a HearCanada clinic in BC until HearCanada terminated his employment on April 19, 2018.

[3] Mr. Fletcher alleges that, during his employment, HearCanada discriminated against him based on his race and religion. Specifically, he alleges: he was hired as a manager but not recognized as one; had poor working conditions; was sworn at and called a name by colleagues at work; and his name was spelled wrong by HearCanada. He alleges he reported these issues to HearCanada, but the issues went unaddressed. Instead, he alleges that HearCanada issued him a written warning and then terminated his employment.

[4] HearCanada says that Mr. Fletcher was not hired as a manager, and that he had the supports usually provided at its clinics. HearCanada acknowledges that Mr. Fletcher’s name was spelled wrong in the company’s email system, but says it was a typographical error they fixed when Mr. Fletcher told them about it. HearCanada also says that they have no record of Mr. Fletcher being called names, that he was not reprimanded for raising concerns about discrimination, and that his termination was for non-discriminatory reasons: his conduct.

[5] I need to decide whether Mr. Fletcher has proven the facts he alleged. If he has proven those facts, do they amount to discrimination based on race and religion contrary to s. 13 of the Human Rights Code ?

II DECISION

[6] I have decided that Mr. Fletcher has not proven that HearCanada discriminated against him contrary s. 13 of the Code . Therefore, I dismiss his complaint, and it is not necessary for me to consider the remedies he seeks: Code , s. 37(1). I explain the reasons for my decision in the analysis section below. Before I do, I address a preliminary issue – Mr. Fletcher’s closing submissions.

III PRELIMINARY ISSUE – MR. FLETCHER’S CLOSING SUBMISSION and reply

[7] At the end of the hearing, and in consultation with the parties, I set a schedule for the parties to make their closing submissions, also called closing arguments. The Tribunal Case Manager confirmed the closing submission deadlines for the parties by email, and provided a link to Tribunal guidance on what to include in a closing submission: Tribunal’s June 20, 2024 email; Guide to getting ready for a hearing .

[8] The written closing submission schedule followed the usual process. Mr. Fletcher first had a deadline to give his closing submission. HearCanada had a deadline after that to provide a closing submission responsive to Mr. Fletcher’s closing submission. Finally, Mr. Fletcher had an opportunity to file a reply on anything new raised in HearCanada’s closing submission.

[9] Mr. Fletcher requested a time extension on the closing submission. The Tribunal granted his request. His new closing submission deadline was July 15, 2024. HearCanada’s closing submission deadline was extended to July 22, 2024, and Mr. Fletcher’s final reply deadline was July 29, 2024: Tribunal’s July 11, 2024 email.

[10] Mr. Fletcher filed his closing submission a day late on July 16, 2024. HearCanada did not address its timeliness or raise its content as an issue. I have decided to accept Mr. Fletcher’s closing submission, even though it was late for three reasons. First, Mr. Fletcher’s closing submission was only late by a day. Second, HearCanada did not raise the timeliness of Mr. Fletcher’s closing submission as an issue. Third, and most importantly, it does not appear that HearCanada was prejudiced by Mr. Fletcher’s late closing submission. HearCanada was not prevented from filing its own timely closing submission and did so ahead of schedule. HearCanada did not point to any unfairness because Mr. Fletcher’s closing submission was filed late.

[11] While I have decided to accept Mr. Fletcher’s late-filed closing submission, I need to address its content. In his closing submission, Mr. Fletcher provided further evidence about his complaint allegations and made new allegations.

[12] A closing submission is not an opportunity to give evidence. Evidence in the Tribunal’s hearing process is given under oath, tested through cross-examination, or agreed on by the parties. Closing submissions are given after the close of the evidentiary part of the hearing. The purpose of a closing submission is for a party to briefly summarize the evidence at the hearing that supports their case. The submission may also refer to other human rights cases to support a party’s arguments about why they should succeed. This is information that the Tribunal provided to the parties when it sent them the Guide to getting ready for a hearing link.

[13] Mr. Fletcher’s closing submission is not an opportunity to give additional evidence about his complaint allegations that proceeded to hearing. His opportunity to give that evidence was at the hearing, and it is that evidence that I will consider to make any findings of fact. To the extent that Mr. Fletcher’s closing submission gives further evidence about his complaint allegations, I disregard it.

[14] I turn next to address Mr. Fletcher’s late-filed reply to HearCanada’s closing submission.

[15] HearCanada filed its closing submission ahead of schedule, on July 17, 2024. Mr. Fletcher did not file his final reply when it was due on July 29, 2024. On July 31, 2024, he asked the Tribunal for an extension to file his final reply. He said that he was having difficulty completing his final reply because he was working full time and not used to “these legal type documents”: Mr. Fletcher’s July 31, 2024 email.

[16] HearCanada opposed Mr. Fletcher’s request to the extend the deadline to file his reply. Ms. Hall said that Mr. Fletcher had enough time to file his reply because he was already granted an extension to file it, and since HearCanada’s submission was filed early, he had 13 days to reply to it. Ms. Hall also said that Mr. Fletcher had a pattern of filing documents late with the Tribunal, which created delays in the Tribunal process: Ms. Hall’s July 31, 2024 email.

[17] Mr. Fletcher ultimately filed his final reply on August 2, 2024. I have decided to accept Mr. Fletcher’s final reply, even though it was late for three reasons.

[18] First, Mr. Fletcher’s final reply was late by a few days. That short period of time had no bearing on the final stage of the Tribunal’s process – issuing this decision.

[19] Second, I accept Mr. Fletcher’s explanation that he had some difficulty completing his reply as a self-represented party without legal training and given his full-time work schedule.

[20] Third, and most importantly, it does not appear that HearCanada was prejudiced by Mr. Fletcher’s late final reply. Since a final reply is the final word on an issue, there was nothing further for HearCanada to do in the Tribunal process. They were not prevented or delayed from wrapping up their participation in the process because Mr. Fletcher’s reply was filed a few days late. The delay had no bearing on HearCanada’s ability to file its own closing submission. HearCanada did not otherwise point to any unfairness because Mr. Fletcher’s final reply was filed late.

[21] While I accept Mr. Fletcher’s final reply, I also need to address its content. As I said earlier, the purpose of Mr. Fletcher’s reply was to address anything new raised in HearCanada’s closing submission. To the extent that Mr. Fletcher’s final reply goes beyond that purpose, I will disregard it.

[22] Next, I set out background information to put Mr. Fletcher’s complaint in context.

IV BACKGROUND

[23] Mr. Fletcher worked for Crystal Vision and Hearing, owned and managed by Steve Wiens, from 2012 to 2014. In September 2015, the hearing division of Crystal Vision and Hearing was sold to HearCanada. The hearing side of the business became HearCanada, which hired Mr. Wiens as a district manager for HearCanada. The vision side of the business became Crystal Vision and Mr. Wiens continued to own and manage Crystal Vision.

[24] HearCanada operated its hearing clinic at Crystal Vision’s existing location in Langley [ the Langley clinic ]. HearCanada and Crystal Vision shared space together at the Langley location until Crystal Vision left in November, 2017.

[25] HearCanada has multiple hearing care clinics in BC and elsewhere in Canada. The clinics provide audiology services and hearing aid and accessory sales.

[26] Mr. Wiens hired Mr. Fletcher on behalf of HearCanada on June 29, 2016 as a “Hearing Aid Specialist” and “Registered Hearing Instrument Practitioner” [ practitioner ]: Exhibit 5, p. 39; Exhibit 8. Mr. Fletcher began working at the Langley clinic on June 29, 2016, and signed HearCanada’s employment agreement on July 1, 2016: Exhibit 5, p. 39; Exhibit 8. The employment agreement provided a phone number and email for HearCanada’s Human Resources person, Jackie Kimble. Jackie Kimble’s title was Director of Employment Services.

[27] HearCanada clinics were staffed by a practitioner and a “front end” staff person with the title Patient Care Coordinator [ PCC ].

[28] Dana Munro was the PCC at the Langley clinic with Mr. Fletcher from December 2016 to July 2017. Around July 2017 she became a “lead PCC” for HearCanada for seven months. Then she was promoted to a sales manager position in 2018.

[29] Tina Runions was the Employer’s Division Coordinator for HearCanada. In that role she was responsible for orders, purchasing and approving employee timecards and expenses during Mr. Fletcher’s employment: Exhibit 5, p. 47.

[30] Scott Boynton was the Vice President of Sales for all of HearCanada during Mr. Fletcher’s employment: Exhibit 5, p. 52.

[31] On February 15, 2018, Mr. Wiens for HearCanada issued a “Written Warning for Policy Procedure Violation” and performance improvement plan to Mr. Fletcher [ written warning ]: Exhibit 5, p. 83. Mr. Wiens stated in the written warning that Mr. Fletcher was late completing almost half of his files, which impacted billing and deliveries. He told Mr. Fletcher that he needed to complete all his delinquent files by the end of March, 2018. If Mr. Fletcher was concerned about the March deadline, he needed to put together a plan by February 21, 2018, with the time and support he needed. Mr. Wiens warned: “You must show immediate and sustained improvement. Failure to do so may result in further disciplinary action, up to and including termination of your employment.”

[32] In the written warning, Mr. Wiens provided an option for Mr. Fletcher to respond to its content in person and/or in writing to Mr. Wiens or Human Resources within eight calendar days.

[33] Mr. Fletcher signed the written warning on February 16, 2018, to acknowledge his receipt and understanding of the content of the document. There was no evidence before me that Mr. Fletcher proposed an alternate deadline to address his files, or that he gave a response to the content of the written warning to Mr. Wiens, Human Resources, or anyone else at HearCanada.

[34] Mr. Wiens left HearCanada in March, 2018. On April 13, 2018, Mr. Fletcher emailed Mr. Boynton and asked for authorization to work overtime to put his paperwork in order, citing lack of PCC support: Exhibit 4, p. 14. Mr. Fletcher also told Mr. Boynton that his first name was misspelled in HearCanada’s computer system, and asked how to have IT correct his first name from Neveen to Naveen. In response to this email, Mr. Boynton emailed Ms. Munro on the same day to seek her guidance on Mr. Fletcher’s overtime request. Ms. Munro responded to Mr. Boynton on the same day. She advised that the overtime approval would not address Mr. Fletcher’s paperwork issue, because the issue was not a lack of PCC support but Mr. Fletcher’s own conduct: Exhibit 4, p. 11-12.

[35] On April 19, 2018, Scott Boynton for HearCanada terminated Mr. Fletcher’s employment without cause: Exhibit 1, p. 14.

[36] On October 18, 2018, Mr. Fletcher filed an Employment Standards Branch complaint alleging that HearCanada owed him for overtime and commissions: Exhibit 1, p. 2-4. His Employment Standards Branch complaint proceeded to a hearing before a Delegate for the Director of the Employment Standards Branch [ Delegate ] on July 2 and 3, 2019. After hearing evidence from Mr. Fletcher and HearCanada, the Delegate issued a decision on August 30, 2019: Exhibit 5, p. 38-64. The Delegate decided that, due to an invoicing error, HearCanada owed Mr. Fletcher some but not all of the commissions he sought. The Delegate also decided that HearCanada did not owe Mr. Fletcher any outstanding overtime pay.

[37] On April 23, 2019, Mr. Fletcher filed a human rights complaint against HearCanada, other companies and individuals. The Tribunal screened his complaint in the usual course and decided that he needed to provide more information before his complaint could proceed. Mr. Fletcher amended his complaint on July 17, 2019. Based on his amendment, the Tribunal accepted his complaint for filing against HearCanada. Mr. Fletcher filed a further amendment to his complaint on October 28, 2019, which provided further particulars of his complaint. The Tribunal accepted the further amendment and issued a Notice of Complaint Proceeding to the parties on May 31, 2022. Mr. Fletcher’s complaint and two amendments, accepted by the Tribunal, established the scope of Mr. Fletcher’s complaint allegations which proceeded to the hearing.

[38] WSAudiology filed a response to Mr. Fletcher’s complaint and amendments on August 3, 2022. In that response WSAudiology explained that HearCanada Inc. was a subsidiary of Lifestyle, and that Lifestyle rather than HearCanada was the correct name of the respondent. WSAudiology also explained that it was the “parent organization” of Lifestyle. Lifestyle has since amalgamated into Helix Hearing Inc. [ Helix ]. Helix is the sole remaining WSAudiology entity operating a retail hearing business in BC and does business as HearCanada: Closing submissions of HearCanada, p. 1. There is no dispute in this case that Lifestyle, or its successor in interest, Helix, is legally responsible for Mr. Fletcher’s employment relationship with HearCanada.

V ANALYSIS

[39] In this section, I explain why I have come to the decision that Mr. Fletcher has not proven discrimination. I begin with setting out the relevant legal principles. Then I apply those principles to the specific facts and issues in this case.

A. Legal Principles

[40] The question before me is whether HearCanada discriminated against its employee, Mr. Fletcher, based on his race and/or religion contrary to s. 13 of the Code . Mr. Fletcher alleges two types of discrimination. The first type of discrimination he alleges is mistreatment at work. The second type of discrimination he alleges relates to how HearCanada responded to his report of this treatment. Mr. Fletcher has the burden to prove his allegations of discrimination on a balance of probabilities: Baylis v. Goodrich Realty Inc. and another , 2025 BCHRT 23, para. 94.

[41] Mr. Fletcher must establish that: he has a characteristic protected by the Code; he was adversely impacted in his employment with HearCanada; and a protected characteristic was a factor in the adverse impacts: Moore v. BC (Education) , 2012 SCC 61, para. 33 [ the discrimination criteria ].

[42] At issue in this case is whether Mr. Fletcher has proven the events he alleges. If he has proven any of the alleged events, I need to consider whether the events meet the discrimination criteria. Specifically, I need to consider whether Mr. Fletcher was adversely impacted by those events, and, if so, whether his race or religion was a factor in any adverse impacts.

[43] Mr. Fletcher also alleges that he told HearCanada he was being mistreated at work and that HearCanada did not respond appropriately. To prove his allegation that HearCanada’s response was itself discriminatory, Mr. Fletcher must first prove that he reported the mistreatment to HearCanada, and his report was about a potential violation of the Code : Clarke v. City of Vancouver and another , 2024 BCHRT 298, para. 112.

[44] Next, I make findings of fact about Mr. Fletcher’s allegations and apply the discrimination criteria at issue to those findings. The Tribunal makes findings of fact based on the evidence at the hearing. The evidence at the hearing consisted of Mr. Fletcher’s testimony and documentary evidence. I admitted the documentary evidence as part of Mr. Fletcher’s evidence or on the consent of the parties.

[45] To make findings of fact, I assess all of the evidence at the hearing, and draw on the following factors:

1. A witness’ ability to recall and describe the events in question accurately: R. v. S.A.S. , 2021 BCPC 69, para. 25; Bradshaw v. Stenner , 2010 BCSC 1398, para. 186.

2. Does the witness’ account contain appropriate details of what occurred or is it vague? If there is an absence of evidence, is there a reason why? Morris v. BC Rail , 2003 BCHRT 14, paras. 16-17; Gill v. Grammy’s Place Restaurant and Bakery Ltd. , 2003 BCHRT 88, para. 36.

3. The external consistency of the evidence. Is the witness’ testimony in harmony with the other evidence before me? Does the documentary evidence confirm or support the testimony? : R. v. S.A.S ., para 25; Bradshaw , paras. 186-188.

4. The internal consistency of the evidence. Are there inconsistencies in a witness’ evidence? For example, does their evidence change during direct examination and cross-examination? Is there a reason for that inconsistency?: R. v. S.A.S ., para 25; Asad v. Kinexus Bioinformatics , 2008 BCHRT 293, para. 801; Gill , para. 36.

5. Is there evidence produced closer in time to the events at issue? Contemporaneous evidence may offer the most accurate reflection of what occurred, rather than testimony later which may depend on a fading memory. Further, once in the litigation process, a witness may be tempted to reconstruct the evidence to put their best case forward, rather than simply relay the events as they occurred: Bradshaw , paras. 186-188; Boshoff v. Inspired Retreats , 2014 BCHRT 6, para. 8; Sahota v. WorkSafe BC (No. 2) , 2019 BCHRT 104, para. 115.

6. Does the evidence relate solely to events the witness had first-hand knowledge about or observed, or is the evidence based on speculation and drawing conclusions?: Douglas (Re) , 2018 BCSC 1287, para. 29; F v. B.C. (Ministry of Children and Family Development) , 2009 BCHRT 122, para. 100.

7. The “sense” of the evidence. When weighed with common sense, does the alleged event seem impossible or unlikely?: Bradshaw , para. 186; R. v. S.A.S. , para 25. In making sense of the human behaviour at issue, I must have sensitivity to individual and cultural factors and disavow any myths, stereotypes, or unfounded assumptions in my assessment: R. v. S.A.S ., para 25; d e Leon Gonzales v. Western Pacific Engineering Group Ltd. and another , 2024 BCHRT 295, para. 13; K.M.N. v. S.Z.M. , 2024 BCCA 70, para. 122.

B. Was Mr. Fletcher denied a manager role? If so, was it discriminatory?

[46] Mr. Fletcher alleged that HearCanada initially hired him as a manager, but he was not designated as such. He also alleged that unlike other “Caucasian” managers, he was not allowed to hire his own support staff: Complaint, p. 3-4; October 28, 2019 Complaint Amendment, para. 6c. I understood Mr. Fletcher’s use of the word Caucasian to mean white, non-racialized people, and that HearCanada treated him worse than white managers because of his race as an Indian. I will address Mr. Fletcher’s allegations in turn.

[47] At the hearing, Mr. Fletcher’s evidence was that, when he was hired by HearCanada as a practitioner at the Langley clinic, Steve Wiens told him that he was the manager of the clinic. His evidence was that HearCanada practitioners were supposed to be managers, and that all the other white practitioners were managers at their clinics. Mr. Fletcher also provided a document to support his testimony. The document is an email he sent Mr. Wiens on June 28, 2016 stating: “We talked before about the practitioner being the Manager at the clinics, it would be wise to have that in the contract also”: Exhibit 1, p. 17. However, there was no documentary evidence of a response from Mr. Wiens. Mr. Fletcher’s evidence was that Mr. Wiens told him he would be a manager but said “we can’t put that in the contract.”

[48] The employment agreement between HearCanada and Mr. Fletcher indicates that Mr. Fletcher’s title was: “Hearing Aid Specialist” and an “RHIP”, which stands for Registered Hearing Instrument Practitioner: Exhibit 8. The agreement also specifies that Mr. Fletcher’s immediate supervisor was Mr. Wiens. The agreement does not specify Mr. Fletcher’s duties or responsibilities in his role with HearCanada.

[49] As part of his evidence, Mr. Fletcher did supply a text message exchange he had with Ms. Munro on August 16, 2017. On that day, Mr. Fletcher texted Ms. Munro: “I’ve given our new PCC a key. Was waiting for you to give it to her this morning. But you did not show up.” Ms. Munro responded: “So you know that isn’t my responsibility anyways. It is the manager’s/practitioner’s”: Exhibit 1, p. 17. Mr. Fletcher continued to text Ms. Munro but did not take issue with her characterizing him as a “manager/practitioner.” Instead, he texted her with other criticisms about her work.

[50] Ms. Munro’s text about Mr. Fletcher’s role seems consistent with Mr. Fletcher’s evidence that as a practitioner he also had a role managing the Langley clinic. Mr. Fletcher also gave evidence that he had a role to play in providing some training to new PCCs. However, even if I accept that Mr. Fletcher was a manager at his clinic, the evidence about his actual managerial duties was lacking. I had no evidence beyond a text message suggesting Mr. Fletcher’s managerial duties included providing a new PCC with a key; and Mr. Fletcher’s evidence that he played a role in PCC training.

[51] What I am left with is evidence that Mr. Fletcher, like other HearCanada practitioners, had a role in managing the clinic he worked at. I did not have enough evidence of his managerial duties or how they compared to other HearCanada practitioners. I did not have enough evidence to prove that Mr. Fletcher was denied a managerial role at all, or the level of responsibilities offered to white practitioners.

[52] Mr. Fletcher’s allegation that he was treated differently or worse than other white practitioners in terms of his role and responsibilities were not based on any evidence beyond his speculation. In these circumstances, Mr. Fletcher has not met his burden to prove that his race was a factor in whatever managerial role or responsibilities he had or did not have at HearCanada. I dismiss this allegation.

C. Were Mr. Fletcher’s working conditions discriminatory?

[53] Mr. Fletcher also alleged that HearCanada subjected him to discriminatory working conditions, including by not granting him commissions for sales he completed and giving him too much work without the proper PCC support and equipment to do his job: Complaint, p. 3; October 28, 2019 Amendment, paras. 6a, b, g, h, and i. He believed his working conditions were “racially motivated” because other practitioners with HearCanada were given adequate supports and equipment, and therefore better working conditions. I will address Mr. Fletcher’s specific allegations in turn.

1. Commissions

[54] With respect to his sales commissions, Mr. Fletcher alleged that, from approximately July to October, 2016, HearCanada did not track his commissions properly, and he did not receive all of the commissions he should have. He alleged this issue was racially motivated because all the other white practitioners had their commissions tracked properly and received their commissions appropriately.

[55] The issue of whether Mr. Fletcher received all the commissions he should have was decided by the Employment Standards Branch. Both parties relied on that decision as relevant to Mr. Fletcher’s human rights complaint. In that hearing process, HearCanada acknowledged that, as a result of some invoicing errors, Mr. Fletcher did not receive all of the commissions he was entitled to. HearCanada agreed that it owed Mr. Fletcher an additional $4500 in commissions: Exhibit 5, p. 61. Mr. Fletcher argued, in the Employment Standard Branch’s process, that HearCanada owed him an additional $2700 in commissions. The Employment Standards Branch Delegate decided that Mr. Fletcher was not owed further commissions by HearCanada. The Delegate found that Mr. Fletcher was unclear on how he earned the further alleged commissions. He had no corroborating evidence to support that claim. As a result, the Delegate concluded that Mr. Fletcher was not entitled to further commissions: p. 61-62.

[56] The Employment Standards Branch determined that Mr. Fletcher was owed some but not all of the commissions he claimed because of invoicing errors on the part of HearCanada. In the hearing of his human rights complaint, Mr. Fletcher did not provide evidence that the commission issue was because of something else besides invoicing errors. His allegation that HearCanada was racially motivated to deny him commissions was based purely on speculation rather than any evidence suggesting that. For example, he had no evidence to show that he was singled out or treated worse than white practitioners with respect to his commissions. In the absence of evidence, I cannot find that Mr. Fletcher’s race was a factor in HearCanada’s invoicing errors with respect to his commissions. I dismiss this allegation.

2. Work support and hours

[57] Mr. Fletcher also alleged that HearCanada did not provide him with enough PCC support, and gave him too much work, which resulted in him working “outrageous hours” and unpaid overtime. He alleged that this was racially motivated because all the other practitioners were given adequate supports except for him and another practitioner he described as an ethnic minority, who I will refer to as WW. [2]

[58] Mr. Fletcher’s evidence about these allegations consisted of his text exchanges with Ms. Munro about PCC staffing. The text exchanges show that Mr. Fletcher had a new PCC to replace Ms. Munro by August 2018. After that, and upon Mr. Fletcher’s requests, Ms. Munro assisted him to secure PCC coverage. Their text exchanges show that, on some occasions, Ms. Munro was unable to secure PCC coverage for Mr. Fletcher on a particular day or part of a day. For example, in a text on September 1, 2017, Ms. Munro told Mr. Fletcher: “Sorry I sent you an email a few days ago saying that that is all we have. With the PNE and vacations and weddings I couldn’t get anyone for you for the morning sorry”: Exhibit 3, p. 7.

[59] At times, Mr. Fletcher asked Ms. Munro to provide PCC coverage herself. Their text exchange shows that, on some occasions, she did personally provide that coverage. Other times she declined on the basis that she had other duties to attend to such as coverage at another clinic, interviewing, or business trips: Exhibit 3, p. 7.

[60] The text exchanges between Mr. Fletcher and Ms. Munro also show that Mr. Fletcher had some input into the PCC hiring at his clinic. At 8:37pm on Friday, December 7, 2017, Mr. Fletcher texted Ms. Munro to raise concerns about a PCC, JP. He told Ms. Munro that JP had “spun out of control” and was “turning the clinic upside down” with a computer password issue: Exhibit 3, p. 9 and 12. At the same time, Mr. Fletcher insisted to Ms. Munro that JP be kept on, and that she would be “fine” so long as HearCanada did not change the “game plan” for the clinic: Exhibit 3, p. 9, 12, and 13. JP stayed on at the Langley clinic because Mr. Fletcher wanted to keep her on, and against Ms. Munro’s reservations: Exhibit 3, p. 11.

[61] Although Ms. Munro had reservations about JP staying on, she texted Mr. Fletcher back on December 7, 2017, that she had deployed additional PCCs to the Langley clinic to do part of JP’s job to “relieve some pressure” for JP, which would also help Mr. Fletcher: Exhibit 3, p. 11. Mr. Fletcher responded: “Thank you for your support even having them help in other areas of the clinic. That is so useful right now also”: Exhibit 3, p. 13. Ms. Munro then texted Mr. Fletcher that she had fixed the password issue with JP the week before and addressed the issue again with JP during the workday on December 7, 2017: Exhibit 3, p. 14. Ms. Munro also told Mr. Fletcher that she would check in on Monday, December 10, and JP could call her if she was having any issues.

[62] By January 5, 2018 at 7:58am, Mr. Fletcher texted Ms. Munro: “Are u coming into Langley [JP] is really not working out. She is extremely rude to myself and to patients”: Exhibit 3, p. 15. Ms. Munro replied that she would stop by later in the day to discuss this with Mr. Fletcher and it appears she did: Exhibit 3, p. 16. By January 19, 2018, Mr. Fletcher texted Ms. Munro and wondered if they would continue with JP because “everything is working here now … I don’t mind giving it a go for next week”: Exhibit 3, p. 17. At the same time, Mr. Fletcher said that JP’s “personality and inability to see time or deal with numbers and her open book stress, really made her wrong for [the Langley] clinic”: Exhibit 3, p. 18. Ms. Munro replied that JP staying on was Steve Wiens’ call to make, and it appears that Mr. Wiens did make that call because JP did not stay on.

[63] On January 19, 2018 at 8:06pm, Ms. Munro relayed this to Mr. Fletcher: “I’m sorry. She really wasn’t a good fit. Not just for Langley but for the actual job”: Exhibit 3, p. 18. On the same evening, and after Ms. Munro and Mr. Wiens acted on Mr. Fletcher’s concerns, Mr. Fletcher speculated, in a text to Ms. Munro, whether JP’s behaviour “may have calmed down” once some tech issues at the Langley clinic were addressed. He accepted, however, that JP would not be at the clinic anymore and hoped that would be “better for her and everyone”: Exhibit 3, p. 19.

[64] Without a PCC at the Langley clinic anymore, Mr. Fletcher texted Ms. Munro at 5:33pm on January 22, 2018 to ask for “an extra tech” from another clinic to fill in. Ms. Munro replied an hour later with a new proposed PCC schedule proposal for Mr. Fletcher’s clinic. It included Ms. Munro filling in on one of the days herself, and two other PCCs filling in at other times: Exhibit 3, p. 20-21. She also offered to discuss the proposed schedule with Mr. Fletcher by phone. In response to the proposed schedule, Mr. Fletcher texted: “Perfe[c]t!!!”: Exhibit 3, p. 21.

[65] On February 1, 2018, Ms. Munro texted Mr. Fletcher to say she would be at the Langley clinic to help with his inventory. Mr. Fletcher’s response was: “Sweet! See u then :)”: Exhibit 3, p. 23. Later in February, 2018, Ms. Munro updated Mr. Fletcher about PCC schedules and filled in to cover PCC illnesses or family-related needs. Mr. Fletcher’s response was: “Appreciate the heads up!”: Exhibit 3, p. 27-28.

[66] The texts between Mr. Fletcher and Ms. Munro show that, when Mr. Fletcher raised a concern about PCC support at his clinic, Ms. Munro sought his input and took action to address his concerns. She provided Mr. Fletcher with updates when there was an issue with PCC coverage at his clinic. In some cases, she personally provided coverage or assisted Mr. Fletcher at the Langley clinic. Mr. Fletcher expressed appreciation and satisfaction with Ms. Munro’s actions.

[67] In early March, 2018, KD was hired as a PCC for Mr. Fletcher’s clinic. Mr. Fletcher’s evidence at the hearing was that he had no input into hiring KD and had concerns about KD’s ability to do the PCC work. Without corroborating documentary evidence, I am not prepared to accept Mr. Fletcher’s evidence on this point. He was texting Ms. Munro about PCCs from August 2017 to February 26, 2018. He provided his input and concerns, which Ms. Munro responded to. If Mr. Fletcher had a concern about KD’s placement and PCC work, I would have expected him to text Ms. Munro about that because this was their usual manner of communicating.

[68] The text exchanges between Mr. Fletcher and Ms. Munro is not evidence which could prove Mr. Fletcher’s allegation that HearCanada was racially motivated to deny him PCC support or gave him less PCC support than other practitioners. Rather, the text messages show that Ms. Munro consulted with Mr. Fletcher about his PCC needs and worked with him to provide as much PCC coverage as possible. To extend that Ms. Munro could not provide PCC coverage for Mr. Fletcher, she explained to him that the coverage issues stemmed from PCC illness, family-related obligations, or vacations. This evidence shows that she personally provided PCC coverage to fill in coverage gaps where possible, to support Mr. Fletcher. I cannot find, on this evidence, that Mr. Fletcher’s race was a factor in the level of PCC support HearCanada provided him with. I dismiss this allegation.

[69] Mr. Fletcher also alleged that he had to work outrageous hours and overtime at HearCanada. This issue was addressed by the Employment Standards Branch. The Delegate found that Mr. Fletcher’s claim for overtime hours was not credible, and that he provided no corroborating documentary evidence to establish that he worked the overtime hours. The Delegate also found that he never advised anyone at HearCanada that he was working overtime for which he was not being paid: Exhibit 5, p. 57-58.

[70] In any event, and most importantly, Mr. Fletcher did not present any evidence to show that HearCanada was racially motivated to require him to work more or longer hours than other practitioners. He has not proven that his race playing any role in the hours he worked, and I dismiss this allegation.

3. Work equipment

[71] Mr. Fletcher also alleged that he had to use equipment at HearCanada that was not “calibrated” from January to April 2018, and all other practitioners in the company had the calibrated equipment. He alleged that HearCanada was racially motivated to deny him the equipment that other practitioners had to do their jobs: October 28, 2019 Complaint amendment, para. 6i.

[72] Mr. Fletcher’s evidence at the hearing was that HearCanada did not have calibrated equipment for a time, that he was supposed to have that equipment and “for whatever reason” his clinic did not have the calibrated equipment. He had no evidence to show that his clinic was the only clinic without calibrated equipment, or that this issue had any connection to his race. His allegation that HearCanada was racially motivated to deny him equipment that other practitioners had is based solely on his speculation without any supporting evidence. He has not proven that his race played any role in the equipment he had at work, and I dismiss this allegation.

D. Mr. Fletcher’s allegation that he was sworn at and called Ganesh

[73] When Mr. Wiens hired Mr. Fletcher as a practitioner at the Langley clinic on June 29, 2016, HearCanada and Crystal Vision shared space together. The two companies shared space together from the time Mr. Fletcher was hired until Crystal Vision left the Langley location in November, 2017. As the owner of Crystal Vision, and district manager of HearCanada, Mr. Wiens had responsibility for employees in both businesses.

[74] Mr. Fletcher alleged in his complaint that, within weeks of working at the Langley clinic, around October or November, 2016, Crystal Vision employees and relatives of Mr. Wiens continuously swore at him: October 28, 2019 Complaint Amendment, para. 6d.

[75] HearCanada argued that Crystal Vision was entirely responsible for its employees: HearCanada closing submission, p. 2. I take from this submission that HearCanada argues that it is not liable for Crystal Vision employee conduct. I agree that HearCanada is not vicariously liable for the conduct of another organization’s employees. It is responsible, however, for ensuring a discrimination-free workplace for its own employees. Mr. Fletcher alleged discrimination by co-workers who worked at a different company but shared Mr. Fletcher’s workplace. They also had a manager in common, Steve Wiens, since Mr. Wiens owned Crystal Vision and had a managerial role at both HearCanada and Crystal Vision. These are circumstances for which HearCanada could be liable. That said, I have not made any findings that Crystal Vision employees discriminated against Mr. Fletcher. I will discuss these findings next.

[76] Mr. Fletcher alleged that he was “constantly sworn” and called “Ganesh” at work. He described Ganesh as a Hindu God. He alleged that Crystal Vision employee, KB, and later HearCanada PCC, KD, called him Ganesh as a derogatory nickname, because he is a Christian from India: Complaint, p. 3; July 17, 2019 Complaint Amendment, p. 2. At the hearing, Mr. Fletcher gave evidence about these allegations. Of these allegations, I find he provided enough evidence to prove one instance of being sworn at by KB at work. I have considered whether this incident was discriminatory and decided it was not. I set out my findings next.

4. The alleged “little shit” comment

[77] Mr. Fletcher testified that his first recollection of someone swearing at him was JS, a Crystal Vision employee. He said that JS called him “a little shit”, that he addressed this with JS immediately and that she seemed embarrassed. While Mr. Fletcher testified that he addressed this incident with JS directly and immediately, he also said that he told Mr. Wiens and human resources about this incident.

[78] I do not accept Mr. Fletcher’s evidence about this allegation for several reasons. First, his recollection of the timing of this incident is not consistent with the only documentary evidence about it. The documentary evidence consisted of a November 10, 2017, email Mr. Fletcher sent to Ms. Munro: Exhibit 1, p. 9-10. In that email, he said that KB swore at him on November 3, 2017, and referenced an unnamed Crystal Vision employee calling him a “little shit” several days later. This puts Mr. Fletcher’s recollection about the sequence of events, and his evidence that he was called a “little shit” first into question.

[79] Second, it seems unlikely that JS called Mr. Fletcher a “little shit” given the full content of his email to Ms. Munro. In the email to Ms. Munro, he did not attribute the “little shit” comment to JS but simply to a “Crystal Vision employee”. I find this significant because Mr. Fletcher otherwise did specifically refer to JS in his email to Ms. Munro. He referred to JS as a Crystal Vision manager, and said that when KB swore at him, he reported it to JS. I find it unlikely that JS called Mr. Fletcher “a little shit”, because he did not tell Ms. Munro that it was JS, or a manager who called him that, but an unnamed “employee” in an email where he otherwise referred to JS. Further, I find it unlikely that he would have reported to JS that he was being sworn at by KB – as he described in his email to Ms. Munro – if JS had also sworn at him.

[80] Third, Mr. Fletcher’s evidence was that he told Mr. Wiens and human resources about JS calling him a “little shit”, but his evidence on this point was too vague. He was in email contact with Mr. Wiens and Tina Runions on November 10 and 13, 2017 but did not report that JS or anyone at work called him a little shit. In his November 10, 2017 email, he described having a great meeting with Scott Boynton the day before. In his November 13, 2017 email he said that Crystal Vision staff had been “verbally abusive” to him, but he did not say who specifically had been verbally abusive to him, what they said, the context of what was said, and when they said it.

[81] I find it unlikely that JS called Mr. Fletcher a “little shit” because his evidence about the timing of the incident, and who made the comment to him, is at odds with what he told Ms. Munro about this incident in his November 10, 2017 email to her. His email to Mr. Wiens, and Ms. Runions on November 13, 2017, referencing “verbal abuse” was too vague to show that JS called Mr. Fletcher a little shit. For these reasons, Mr. Fletcher has not proven this allegation, and I dismiss it.

5. The allegation that KB used “the F word” in front of her daughter

[82] Mr. Fletcher’s evidence about this allegation consisted of his November 10, 2017 email to Ms. Munro. In the email he told Ms. Munro that on November 8, 2017, a Crystal Vision employee, KB, had her daughter with her in Crystal Vision’s areas of the Langley space. He told Ms. Munro that KB used “the F word” in front of her daughter multiple times.

[83] Even if I accepted Mr. Fletcher’s evidence about this allegation, it is not evidence that KB swore at him. It is evidence that KB used the F word with her daughter present in Crystal Vision’s area of the Langley space. Mr. Fletcher was unclear in his evidence how he was aware of KB’s use of the F word. He did not provide enough information about the circumstances of this incident, including his own role in this incident. I dismiss this allegation.

6. The allegation that KB and KD called Mr. Fletcher “Ganesh”

[84] Mr. Fletcher alleged that he was initially called “Ganesh” by Crystal Vision employee, KB. He alleged that HearCanada PCC, KD, also called him Ganesh.

[85] At the hearing, Mr. Fletcher’s evidence about being called Ganesh was vague. He said that “people” started calling him Ganesh. He was unclear about who called him Ganesh, when it occurred, and what the circumstances were.

[86] His documentary evidence did not support his allegation that KB called him Ganesh. Mr. Fletcher emailed Ms. Munro about KB swearing at him, but did not tell Ms. Munro that KB called him Ganesh. On November 13, 2017, when he emailed Mr. Wiens to raise concerns about Crystal Vision staff, he did not mention KB or that he was called Ganesh: Exhibit 1, p. 6. In his further texts with Ms. Munro from December 2017 to February 28, 2018, Mr. Fletcher raised a variety of work-related concerns, but did not mention anyone calling him Ganesh: Exhibit 3, p. 8-28.

[87] It appears KD came on as the new HearCanada PCC at the Langley clinic in March, 2018. At the hearing, Mr. Fletcher relied on documentary evidence to support his allegation about KD. He supplied a copy of his text exchange with KD in March, 2018. Nowhere in the documentary evidence does he reference KD calling him Ganesh.

[88] Given Mr. Fletcher’s evidence, I cannot find that KB or KD called him Ganesh. I dismiss this allegation.

7. The allegation that KB said fuck off or fuck you to Mr. Fletcher

[89] Mr. Fletcher also testified that KB also swore at him, which could have been “fuck off Naveen” or “fuck you Naveen” in front of a Langley clinic PCC.

[90] He relied on his November 10, 2017 email to Mr. Munro about the incident. In the email he said that:

· on November 3, 2017, he questioned KB, about taking a third smoke break while a Crystal Vision customer needed assistance. KB responded: “Fuck you Naveen!” in front of the HearCanada PCC.

· On November 6, 2017, he reported KB’s comment to him to Crystal Vision managers, KS and JS.

· KB did not work her shift at Crystal Vision on November 7, 2017 for unrelated personal reasons.

[91] In the email, Mr. Fletcher asked Ms. Munro to make sure that Crystal Vision was running properly while it shared space with the HearCanada Langley clinic.

[92] In an email on November 13, 2017, Mr. Fletcher told Mr. Wiens that Crystal Vision staff had been “verbally abusive” to him: Exhibit 1, p. 6. He copied Ms. Munro and Tina Runions to the email. Mr. Fletcher asked Mr. Wiens to confirm that Crystal Vision would be moving out of the space on November 15, 2017, and help to make sure that transition went smoothly.

[93] There was no evidence of a response from Ms. Munro to Mr. Fletcher’s November 10, 2017 email; or a response from Mr. Wiens to Mr. Fletcher’s November 13, 2017. By November 20, 2017, Crystal Vision moved out of the Langley location.

[94] Based on Mr. Fletcher’s testimony and documentary evidence, I accept his uncontradicted evidence that at least on one occasion in November, 2017, Crystal Vision employee KB said to Mr. Fletcher: “fuck you” or “fuck off” at his workplace. The comment was certainly rude, unprofessional and not respectful to Mr. Fletcher. However, not every comment a person finds offensive amounts to discrimination under the Code : Brito v. Affordable Housing Societies and another , 2017 BCHRT 270, para. 41. It is not a purpose of the Code or the Tribunal to sanction all “bad behaviour” which occurs between parties: B anwait v. Forsyth (No. 2) , 2008 BCHRT 81, para. 168.

[95] In the case of a single comment, like KB’s comment to Mr. Fletcher, the Tribunal will consider all the circumstances, to determine whether the comment crosses the boundary between an instance of failing to be kind or professional, and discriminatory conduct within the meaning and scope of the Code : Brito , para. 41. Relevant factors include: the egregiousness of the comment, the relationship between the parties, the context in which the comment was made, whether an apology was offered, and whether the recipient of the comment was a member of a group historically discriminated against: Pardo v. School District No. 43 , 2003 BCHRT 71, para. 12. Next, I will apply these factors to KB’s comment.

[96] With respect to KB telling Mr. Fletcher fuck you or fuck off, I do not find it egregious. The Tribunal has interpreted egregious to mean commentary connected to a person’s protected characteristic(s), that is an affront to their dignity or invokes harmful stereotypes: Martinez Johnson v. Whitewater Concrete Ltd. and others (No. 2) , 2022 BCHRT 129, paras. 27-29 and 76; The Applicant v. Independent Investigations Office of British Columbia (No. 2) , 2024 BCHRT 204, paras. 121-125; Akinbiyi v. Community Builders Benevolence Group and another , 2024 BCHRT 287, paras. 35 and 37; April v. The Salvation Army , 2021 BCHRT 42, para. 36.

[97] While telling someone to fuck off or fuck you is commonly viewed as rude and inappropriate, on its own, it is not egregious, in a human rights sense. Here, there is no evidence that connects KB’s profanity to Mr. Fletcher’s protected characteristics as an Indian and Christian person. This is not a case like Martinez Johnson where a racialized slur was used, which was an affront to Mr. Martinez Johnson’s dignity as a Mayan and Black person. This is also not a case like The Applicant where comments made to a Métis woman by a prospective employer invoked harmful stereotypes about Indigenous people.

[98] I have also considered the relationship between Mr. Fletcher and KB. The Tribunal has considered, for example, whether a power imbalance or ongoing relationship between the parties is more likely to have a discriminatory impact on the recipient of the comment: Laverentz v. Log It Contracting Ltd. and another , 2024 BCHRT 346, para. 54. In this case, KB was an outgoing employee of Crystal Vision, and Mr. Fletcher had an ongoing practitioner role at Hearing Canada. They did not have an ongoing relationship. There was no evidence that KB exercised power over Mr. Fletcher, such as supervisory or racialized power: British Columbia Human Rights Tribunal v. Schrenk , 2017 SCC 62, para. 43. The nature of the relationship between Mr. Fletcher and KB does not weigh in favour of finding KB’s comments had a discriminatory impact on Mr. Fletcher.

[99] KB’s comments were made in response to Mr. Fletcher, a HearCanada employee, questioning her, a Crystal Vision employee, about taking a smoke break. While KB’s response was rude and inappropriate, the context of her comments does not point to any link to Mr. Fletcher’s race or religion or a discriminatory impact on him.

[100] Last, I have considered whether Mr. Fletcher is a member of a group historically discriminated against. I take notice that Mr. Fletcher is a member of a group historically discriminated against in Canada as an Indian person. It is well-recognized that Indian people and, more broadly, South Asian people in Canada are a group historically discriminated against: Naraine v. Ford Motor Co. of Canada (No. 4) , 1996 CanLII 20059 (ON HRT), paras. 26-27; Correia v. York Catholic District School Board , 2011 HRTO 1733, para. 61; South Asian Studies Institute, History of South Asians in Canada: Timeline, 2018-2021, University of the Fraser Valley ; South Asian Canadian Digital Archive, Komagata Maru: Continuing the Journey, 2022; Reena Kukreja, Anti-immigrant politics is fueling hate toward South Asian people in Canada, November 7, 2024 Queen’s University . However, there is no evidence that KB telling Mr. Fletcher fuck you or fuck off carried any particular baggage or had a discriminatory impact on Mr. Fletcher in connection with his race: Laverentz , para. 56.

[101] I do not find that Mr. Fletcher is a member of a group historically discriminated against because he is a Christian. Christianity remains the dominant religion in Canada: Statistics Canada, Religion in Canada, 2021. I had no other indication that the intersection of Mr. Fletcher’s race and religion is a site of discrimination in BC.

[102] I conclude that KB’s single comment to Mr. Fletcher does not cross into the terrain of discrimination protected by the Code .

E. Mr. Fletcher’s misspelled name

[103] There is no dispute that Mr. Fletcher’s first name was misspelled in HearCanada’s email system from mid-January to April 2018. His first name is spelled Naveen but was spelled Neveen in HearCanada’s email system. Mr. Fletcher alleged the misspelling was discriminatory because:

· Coworkers and other health professionals called him by the wrong name, and he was forced to do business as Neveen instead Naveen: Complaint, p. 3; July 17, 2019 Amendment, p. 2.

· All other practitioners in the company were able to use their “proper names”: October 28, 2019 Amendment, para. 6e.

· His misspelled name became a topic of entertainment for staff and inflated the use of employees calling him Ganesh: Complaint, p. 3; October 29, 2019 Amendment, p. 4.

· He had to spend time correcting his name on documents, which contributed to his overtime hours which he was not paid for: October 28, 2019 Amendment, para. 6g.

[104] At the hearing, Mr. Fletcher’s evidence was that his misspelled name occurred when HearCanada switched their email system. He said he had no control over his signature, could not send faxes or emails with the wrong name, and needed to correct his name in the files. His evidence was that he emailed HearCanada on April 13, 2018 asking that his name get corrected. He also testified that he raised the issue earlier to HearCanada but did not produce any documentation to show this. For example, he did not have evidence that he raised this issue with Ms. Munro, Mr. Wiens, and Tina Runions in writing, even though he was emailing them and texting Ms. Munro about other issues.

[105] On cross-examination, Ms. Hall asked Mr. Fletcher what a typographical error had to do with discrimination. Mr. Fletcher’s response was that he believed it was intentional and that he constantly had to explain his name.

[106] When Ms. Hall asked why someone at HearCanada’s head office, in Florida, would transpose his name wrong on purpose, Mr. Fletcher responded that: “given all the issues already it seemed like to this had to do with my name as well.” Ms. Hall also asked Mr. Fletcher how he could know that he was the only employee with a typographical error because there were thousands of employees. His response was that no one he knew had this issue.

[107] Mr. Fletcher’s evidence is not enough to prove that the misspelling of his first name in HearCanada’s email system was discriminatory. Even if I accepted that Mr. Fletcher experienced an adverse impact because of the misspelling, he did not provide any evidence to show that the misspelling of his name had any connection to his race or religion. He attempted to tether the misspelling to other issues, including coworkers calling him Ganesh, and having to work unpaid overtime. However, as I found earlier, Mr. Fletcher did not prove those allegations. There is no evidence beyond his speculation to support the allegation that the misspelling was intentional. Instead, the evidence points to a non-discriminatory explanation for the misspelling – a typographical error when HearCanada switched computer systems.

[108] Mr. Fletcher has not proven that the misspelling of his first name in HearCanada’s email system was discriminatory and I dismiss this allegation.

F. Did Mr. Fletcher’s report discrimination? If so, did HearCanada respond inappropriately?

[109] Mr. Fletcher alleged in his complaint that he reported being sworn at and called Ganesh to HearCanada management, but nothing was done: Complaint, p. 3-4; October 28, 2019 Amendment, paras. 5 and 6d. He further alleged that HearCanada penalized him by misspelling his name in their computer system, in January, 2018; issuing him the written warning on false grounds in February 2018; and terminating his employment on April 19, 2018: Complaint, p. 3-4; July 17, 2019 Amendment, p. 2-3; October 28, 2019 Amendment, para. 6d and e.

[110] I have determined that the conduct Mr. Fletcher reported to HearCanada – the swearing, being called Ganesh, and the misspelling of his name – is either unproven or not discrimination. But my analysis does not end there because an employer’s failure to adequately or reasonably address a complaint of discrimination may itself violate the Code , even if the underlying conduct reported is unproven: Laskowska v. Marineland of Canada Inc ., 2005 HRTO 30, para. 52; The Employee v. The University and another (No. 2) , 2020 BCHRT 12, para. 273; Clarke v. City of Vancouver and another , 2024 BCHRT 298, para. 111.

[111] When an employee alleges that the employer’s response to discrimination at work was itself discriminatory, there are two initial requirements. First, the employer must know there is a complaint or concern, usually because the complainant has reported it. Second, the complaint must be about a potential violation of the Code : Clark , para. 112. On the first requirement, an employer does not have a duty to address a specific instance of discrimination that they are not aware of. On the second requirement, the Code is concerned with an employer’s response to possible discrimination rather than any type of workplace complaint.

[112] The Tribunal assesses an employer’s response to a report of discrimination to give effect to the principle that an employer has a duty to provide a discrimination-free workplace: Robichaud v. Canada (Treasury Board) , 1987 CanLII 73 (SCC), paras. 8-11; British Columbia Human Rights Tribunal v. Schrenk , 2017 SCC 62, para. 53; Laskowska , para. 52. As the Human Rights Tribunal of Ontario said in Laskowska , an employer’s duty to protect employees from discrimination at work would be rendered meaningless if an employer could “sit idly” on a report of discrimination: para. 53. Further, a failure to reasonably respond can exacerbate the harms of discrimination or cause further harms: Hale v. University of British Columbia , 2023 BCHRT 121, para. 16.

[113] At issue here is whether Mr. Fletcher actually reported a potential violation of the Code to HearCanada. Having reviewed what he reported to HearCanada, I do not find that he reported a potential violation of the Code to HearCanada.

[114] First, with respect to his allegation that he told HearCanada that he was being called Ganesh, he provided no evidence to show this. He did not give any testimony about when or how he reported this to HearCanada or who he reported it to. He was in email contact with Mr. Wiens, Ms. Munro, Ms. Runions, and Mr. Boynton. He had an email address and direct line for HearCanada’s human resources person, Jackie Kimble. He was in text communication with Ms. Munro. He raised work-related issues with Ms. Munro, Mr. Wiens, Ms. Runions, and Mr. Boynton by email, and by text with Ms. Munro, but not one of these communications shows that he reported being called Ganesh. I have already found that Mr. Fletcher has not proven that he was called Ganesh at work. I also find that he has not proven that he reported being called Ganesh to HearCanada.

[115] Mr. Fletcher did report to HearCanada that co-workers swore at him at work. However, for reasons I will explain, I do not find that this qualifies as a report of discrimination.

[116] Mr. Fletcher’s report to Ms. Munro, on November 10, 2017, set out the following:

· On November 3, 2017, Crystal Vision employee KB told him “fuck you or fuck off.”

· He reported this to a Crystal Vision manager and advocated for KB’s removal from the clinic.

· On November 7, 2017, another optical employee called him “a little shit.” This staff member “was taken aside and spoken with.” Mr. Fletcher also reported this incident to a Crystal Vision Manager.

· On November 8, 2017, KB was on the Crystal Vision side of the clinic with her daughter, and used the “F word”:

Exhibit 1, p. 9-10.

[117] On November 13, 2017, Mr. Fletcher also emailed Mr. Wiens and reported that Crystal Vision staff had been “verbally abusive” to him over the past two weeks: Exhibit 1, p. 6. The timeframe of this report is consistent with his report to Ms. Munro of the swearing incidents. He may have been reporting the swearing incidents to Mr. Wiens. However, Mr. Fletcher did not explain to Mr. Wiens in his November 13, 2017 email what he meant by “verbal abuse.” He did not say specifically what was said to him, who said it, the dates the comments were made, or the context in which the “verbal abuse” occurred. Mr. Fletcher did not have any other evidence of the reports he made to HearCanada about the swearing.

[118] I find that Mr. Fletcher’s two reports to HearCanada are, on their own, insufficient to show that Mr. Fletcher reported a potential violation of the Code to HearCanada. Mr. Fletcher did not give any indication in his reports that the swearing had any connection to his race or religion. This is in contrast with the type of reports the Tribunal has accepted as triggering a duty to respond such as a report of sexual harassment, racial slurs, name-calling, or safety concerns: Beharrell v. EVL Nursery , 2018 BCHRT 62, paras. 20-25; Sarba v. Ruskin Construction Ltd. and others , 2022 BCHRT 35, paras. 17-19, and 34; Martinez Johnson v. Whitewater Concrete Ltd. and others (No. 2) , 2022 BCHRT 129, para. 63; Bighorn v. Board of Education of School Board No. 39 , 2024 BCHRT 153, para. 44.

[119] Mr. Fletcher also alleged that his misspelled name was a form of discrimination and that he reported this issue to HearCanada. I have already found that Mr. Fletcher’s misspelled name was not discriminatory. He did report the misspelling to Mr. Boynton on April 13, 2018. However, when he reported this issue to Mr. Boynton he did not characterize it as a form of discrimination or give any indication that the misspelling had any connection to his race or religion. He simply asked that the misspelling be addressed. I find that this report of his misspelled name was not a report of discrimination.

[120] In the circumstances of this case, I am not persuaded that Mr. Fletcher told HearCanada, or that HearCanada should have reasonably known, that his reports about the swearing, verbal abuse, and misspelling of his name were about race or religious discrimination. Since Mr. Fletcher’s reports to HearCanada were not reports of discrimination, I do not go on to assess the adequacy of HearCanada’s response to those reports. An employer cannot be held accountable for an inadequate response to a report of discrimination in the absence of a report of discrimination.

G. Mr. Fletcher’s written warning and termination

[121] Mr. Fletcher alleged that HearCanada issued him a written warning and then terminated his employment because he reported to HearCanada that he was being discriminated against: Complaint, p. 3-4; October 28, 2019 Amendment, para. 5. HearCanada presented evidence that it was Mr. Fletcher’s own conduct that led to the written warning and his termination.

[122] Mr. Fletcher’s allegation that HearCanada penalized him by giving him a written warning and terminating his employment, depended on him proving that he reported discrimination to HearCanada in the first place. He cannot succeed on this allegation because I have already found that that he did not report discrimination to HearCanada. I do not need to make findings about whether Mr. Fletcher’s own conduct prompted the written warning and termination of his employment. Whatever the reasons that HearCanada gave Mr. Fletcher a written warning and terminated his employment, it was not because Mr. Fletcher reported discrimination. I dismiss this allegation.

VI ORDER

[123] Mr. Fletcher has not proven that HearCanada discriminated against him. I dismiss his complaint in its entirety: Code , s. 37(1).

Amber Prince

Tribunal Member

[1] Since Lifestyle operated as HearCanada, and Mr. Fletcher was an employee of HearCanada, I will continue to refer to HearCanada as Mr. Fletcher’s employer.

[2] I have used initials for third-partes not directly involved in the complaint. I do not see a public interest in publishing the full names of these third parties: Campbell v. Vancouver Police Board (No. 4) , 2019 BCHRT 275, para. 7

Fletcher v. Lifestyle Hearing Corporation, 2025 BCHRT 93

Contents

I INTRODUCTION