Nelson v. Pinnacle Renewable Energy and another, 2025 BCHRT 94
Date Issued: April 25, 2025
File: CS-003408
Indexed as: Nelson v. Pinnacle Renewable Energy and another, 2025 BCHRT 94
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:
Bruce Nelson
COMPLAINANT
AND:
Pinnacle Renewable Energy and Justin Weber
RESPONDENTS
REASONS FOR DECISION
APPLICATION TO DISMISS A COMPLAINT
Section 27(1)(c)
Tribunal Member: Edward Takayanagi
Counsel for the Complainant: Aleem Bharmal, KC
Counsel for the Respondents: Marino Sveinson, William Wijaya
I INTRODUCTION
[1] Bruce Nelson filed a complaint against his former employer, Pinnacle Renewable Energy, and his superintendent, Justin Weber, alleging they discriminated against him on the basis of Indigenous Identity and race contrary to s. 8 of the Human Rights Code . He says the Respondents singled him out for discipline and denied him a position for which he was qualified. He says the work environment became toxic because of the discriminatory conduct and he was forced to resign.
[2] The Respondents deny discriminating and apply under s. 27(1)(c) of the Code to dismiss the complaint without a hearing. They say the complaint has no reasonable prospect of success because disciplining Mr. Nelson and not giving him a position were business decisions unrelated to Mr. Nelson’s protected characteristics. They say the complaint is based on speculation and conjecture.
[3] For the reasons that follow, I am satisfied that Mr. Nelson’s complaint has no reasonable prospect of success. The evidence before me does not take Mr. Nelson’s claim of a connection between his protected characteristics and being disciplined and denied a position out of the realm of conjecture. I am satisfied the Respondents are reasonably certain to establish they had legitimate non-discriminatory reasons for their actions. As such, I allow the dismissal application, and the complaint is dismissed under s. 27(1)(c).
[4] While I do not refer to it all in my decision, I have considered all the information filed by the parties. In these reasons, I only refer to what is necessary to explain my decision. I make no findings of fact.
II BACKGROUND
[5] Pinnacle is a producer of industrial wood pellets. Mr. Nelson began working for Pinnacle on March 3, 2014, at one of the company’s manufacturing plants as a millwright. Mr. Weber was the superintendent at the plant, responsible for supervising all employees.
[6] In December 2019, Mr. Nelson informed Mr. Weber he was going to take a 15-minute coffee break. Mr. Nelson did not report back from his break for over 45 minutes. Mr. Weber informed Mr. Nelson that he was only allowed 15 minutes for his break. Mr. Nelson responded angrily to Mr. Weber and stormed off.
[7] Mr. Nelson made a complaint about his interaction with Mr. Weber later that day. He wrote that Mr. Weber singled him out about taking over 45 minutes for his 15-minute break. He wrote “if any one has a problem with the color of my skin come out and say it, don’t treat me differently in a bad way.” On or about December 20, 2019, Mr. Nelson retracted his complaint about Mr. Weber.
[8] Next, on or about November 23, 2020, a supervisor asked Mr. Nelson to put up signs warning pedestrians not to walk in corridors where icicles could potentially fall on them. A few hours after asking Mr. Nelson to put up the signs, the supervisor asked Mr. Nelson if the job was completed. Mr. Nelson responded by swearing and yelling at the supervisor. Mr. Weber observed the interaction and sent Mr. Nelson home for the rest of his shift. Mr. Nelson sent a text message to the supervisor a few hours later apologizing for his behaviour.
[9] In November 2020, Pinnacle internally posted for a lead hand position in the maintenance department. Mr. Nelson was one of several employees who applied for the position. The selection process included a standardized test to measure the candidate’s attributes and a review of the candidate’s experience performing supervisory functions and working with the company’s management system.
[10] In January 2021, Pinnacle decided to offer the lead hand position to one of the other candidates. On January 19, 2021, Mr. Nelson sent a letter to the plant manager alleging that he was told by Mr. Weber that he was qualified for the position, but he needed to work on his phone skills and being able to handle himself in disputes with employees. Mr. Weber denies making such comments.
[11] Finally, on January 25, 2021, Mr. Nelson was told by his supervisor that he was in a lockout violation. (A lockout violation is a violation of safety policies and procedures where an employee fails to de-energize equipment before accessing a restricted area to perform maintenance.) Mr. Nelson responded by angrily yelling at his supervisor. The supervisor reported the incident to Mr. Weber, and Mr. Weber sent Mr. Nelson home for the day pending an investigation into the incident.
[12] Mr. Nelson says that as a result of the foregoing incidents, and not being selected for the lead hand position, he no longer felt safe working at Pinnacle. On January 26, 2021, Mr. Nelson sent a text message to Mr. Weber resigning.
III DECISION
[13] The Respondents apply to dismiss Mr. Nelson’s complaint on the basis that it has no reasonable prospect of success: Code, s. 27(1)(c). The onus is on the Respondents to establish the basis for dismissal.
[14] Section 27(1)(c) is part of the Tribunal’s gate-keeping function. It allows the Tribunal to remove complaints which do not warrant the time and expense of a hearing.
[15] The Tribunal does not make findings of fact under s. 27(1)(c). Instead, the Tribunal looks at the evidence to decide whether “there is no reasonable prospect that findings of fact that would support the complaint could be made on a balance of probabilities after a full hearing of the evidence ” : Berezoutskaia v. British Columbia (Human Rights Tribunal) , 2006 BCCA 95 at para. 22, leave to appeal ref’d [2006] SCCA No. 171. The Tribunal must base its decision on the materials filed by the parties, and not on speculation about what evidence may be filed at the hearing: University of British Columbia v. Chan , 2013 BCSC 942 at para. 77.
[16] A dismissal application is not the same as a hearing: Lord v. Fraser Health Authority , 2021 BCSC 2176 at para. 20; SEPQA v. Canadian Human Rights Commission , [1989] 2 SCR 879 at 899. The threshold to advance a complaint to a hearing is low. In a dismissal application, a complainant does not have to prove their complaint or show the Tribunal all the evidence they may introduce at a hearing. They only have to show that the evidence takes their complaint out of the realm of conjecture: Workers’ Compensation Appeal Tribunal v. Hill, 2011 BCCA 49 at para. 27.
[17] To prove his complaint at a hearing, Mr. Nelson will have to prove that he has a characteristic protected by the Code (in this case his race and Indigenous Identity), he was adversely impacted in employment, and his protected characteristics were a factor in the adverse impact: Moore v. British Columbia (Education) , 2012 SCC 61 at para. 33.
[18] The Respondents’ submission focuses on the third element of the Moore test. They say there is no reasonable prospect that Mr. Nelson will establish at a hearing that there is a nexus between Mr. Nelson’s race and Indigenous Identity and the adverse impact of being disciplined and not being given a job.
[19] I agree. Based on the information and materials before me at this stage, I am persuaded there is no reasonable prospect the Tribunal would find at a hearing that Mr. Nelson’s protected characteristics were a factor in the adverse impacts. I am satisfied that the Respondents are reasonably certain to establish that there were wholly non-discriminatory business reasons for their conduct.
[20] First, the underlying facts are undisputed. Mr. Nelson agrees that he took over 45 minutes for his 15-minute break, he did not put up signs as he was asked to do, he yelled and swore at his supervisor and Mr. Weber, and he failed to lockout equipment before entering a restricted area to perform maintenance. Copies of Pinnacle’s workplace policies were submitted into documentary evidence. The materials support the Respondents’ assertion that Mr. Nelson’s conduct breached Pinnacle policies and was grounds for issuing warnings and discipline.
[21] Second, the Respondents provided contemporaneous documentary materials that are inconsistent with Mr. Nelson’s assertions. The materials before me are inconsistent with Mr. Nelson’s assertion that he was not hired for the lead hand position because of his race and Indigenous Identity and supports the Respondents’ assertion that he did not meet the qualifications for the position. The posted job description sets out the required competencies, the application packages of the candidates show their qualifications. The materials support the Respondents’ position that Mr. Nelson did not have experience working with the management system nor recent leadership experience. The Respondents say they selected the candidate who had more of the necessary qualifications and scored higher than Mr. Nelson on the standardized test. The evidence supports their position and shows that the chosen candidate scored more than twice as high as Mr. Nelson on the standardized test, had relevant recent experience working with computer systems and experience working in a leadership role.
[22] Finally, Mr. Nelson’s complaint turns on an inference of discrimination. Mr. Nelson argues that because he has alleged multiple instances where he says he was mistreated, the Tribunal should draw an inference that his race and Indigenous Identity were a factor in his treatment. I do not agree.
[23] Human rights jurisprudence has consistently recognized that a decision that the Code has been contravened may be based on circumstantial evidence, and on the inferences that are reasonable to draw from that evidence: Hill v. Best Western and another , 2016 BCHRT 92 at para. 28. I acknowledge that racialized people experience micro-discrimination and “everyday racism”, which is often subtle despite it being plain to the person experiencing it. Individual acts that may be ambiguous or explained away, when viewed as part of the larger picture and with an understanding of how racial discrimination takes place, may lead to an inference that racial discrimination was a factor in the treatment an individual received: Francis v. BC Ministry of Justice (No. 3) , 2019 BCHRT 136 at para. 288, quoting Ontario, Human Rights Commission, Policy and Guidelines on Racism and Racial Discrimination.
[24] However, the subtlety of prejudice and the availability of inference does not create a presumption of discrimination: Richardson v. Great Canadian Casinos and another , 2019 BCHRT 265 at para. 144. A complainant must point to some evidence from which it can be inferred that their race or Indigenous Identity played some role in the adverse treatment they experienced: Mezghrani v. Canada Youth Orange Network (CYONI) (No 2) , 2006 BCHRT 60 at para. 28. Mr. Nelson has not done so in this complaint.
[25] Mr. Nelson points to the fact that he alleges multiple instances of discrimination as sufficient to allow the Tribunal to make a reasonable inference that his race and Indigenous Identity were factors in the adverse treatments. In my view, the fact that he makes multiple allegations, on its own, is insufficient to take the connection between Mr. Nelson’s protected characteristics and the adverse impacts out of the realm of conjecture. In so far as Mr. Nelson says he was treated differently than others, he has provided no explanations or details that take this assertion out of the realm of conjecture.
[26] Assessing the whole of the evidence, I am not persuaded that discrimination could be inferred. Mr. Nelson has not asserted facts or provided any basis upon which the Tribunal could reasonably infer that his protected characteristics were a factor in the Respondents’ decision to discipline him or not give him the lead hand job. Further, the Respondents have advanced a non-discriminatory explanation for their conduct supported in the contemporaneous documentary evidence. I am persuaded that Mr. Nelson’s complaint has no reasonable prospect of success. As such, I dismiss the complaint under s. 27(1)(c).
IV CONCLUSION
[27] I allow the application and dismiss the complaint under s. 27(1)(c).
Edward Takayanagi
Tribunal Member