BC Human Rights Tribunal

Blokhuis v. Mission Possible (No. 2), 2025 BCHRT 98

Date Issued: May 1, 2025
File(s): CS-000301

Indexed as: Blokhuis v. Mission Possible (No. 2), 2025 BCHRT 98

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:

Larissa Blokhuis
COMPLAINANT

AND:

Mission Possible
RESPONDENT

REASONS FOR DECISION

Tribunal Member: Laila Said Alam

Counsel for the Complainant: Tessa Turenne

Counsel for the Respondent: Greg J. Allen; Mia Stewart, Articled Student

Date of Hearing: June 18, 2024

Location of Hearing: Virtual

I INTRODUCTION

[1] This complaint stems from Mission Possible’s response to Larissa Blokhuis’ complaint about a racist comment made by a user of their pottery studio. The user is not named in this complaint, and this decision will refer to her as A. This decision is about whether Mission Possible’s response to Ms. Blokhuis’ complaint was adequate to ensure and, where necessary, restore a discrimination-free environment. I also consider whether Mission Possible’s response caused Ms. Blokhuis to reasonably conclude the studio was not a safe place for her to use, and whether the effect of Mission Possible’s response was to ban her from the studio.

[2] Ms. Blokhuis is a biracial artist. She accessed Mission Possible’s not-for-profit pottery studio in Vancouver’s downtown east side neighbourhood [ DTES ]. Ms. Blokhuis alleges that Mission Possible’s response to her complaint was discriminatory in that they did not take her concerns seriously, failed to reasonably address the discrimination, and denied her access to the studio after she complained. She says Mission Possible discriminated against her in services and employment, contrary to s. 8 and s. 13 of the Human Rights Code .

[3] Mission Possible, a non-profit, denies discriminating and says Ms. Blokhuis was neither a volunteer at Mission Possible, nor enjoyed services customarily available to the public. They deny she experienced an adverse impact in either area. They say Ms. Blokhuis left Mission Possible voluntarily and chose not to return. They also say that they made a good faith, bona fide effort to address her concerns. They accommodated her to the point of undue hardship, but Ms. Blokhuis would only accept her “perfect accommodation” to ban A from the studio.

[4] I heard the hearing in one day. Both Ms. Blokhuis and Mission Possible were represented by legal counsel. Ms. Blokhuis was her sole witness, and Mission Possible called Matthew Smedley, Executive Director and CEO of Mission Possible, and Shelimar Lakowski, Team Empowerment Leader at Mission Possible and facilitator of Mission Possible’s pottery studio.

[5] For the reasons that follow, I have concluded that Mission Possible provided a service customarily available to the public and was in a service relationship with Ms. Blokhuis within the meaning of s. 8 of the Code . I find that Ms. Blokhuis has proven that Mission Possible discriminated when they did not adequately address her complaint, that she was constructively denied services as a result of her complaint, and that her race was a factor in that denial.

II DECISION

[6] I find Mission Possible liable under s.8 of the Code and make remedial orders, including a cease and refrain order. I order Mission Possible to develop an anti-discrimination policy applicable to members and staff, and to provide training or workshops to members and staff on the anti-discrimination policy. Further, I order Mission Possible to develop a proper complaint mechanism consistent with the anti-discrimination policy. Ms. Blokhuis is entitled to compensation for injury to her dignity, feelings, and self respect [ injury to dignity ] in the amount of $5000. As the service provider, Mission Possible is liable for this amount: Code , s. 44(2). I decline to make an order against Mission Possible for expenses incurred because of the discrimination.

[7] Below are my reasons. I begin with my assessment of the witnesses’ credibility and reliability, then set out some of the evidence and my findings. Next, I provide a summary of the law and consider whether Ms. Blokhuis has established facts that meet the legal test for discrimination. I explain my conclusion that Mission Possible discriminated against Ms. Blokhuis in the area of services customarily available to the public. I then explain the basis for my remedial orders.

III WITNESS CREDIBILITY

[8] In this part of my decision, I explain my general findings on credibility. Later, I make specific findings of fact and explain the basis for preferring certain evidence over others.

[9] Key material facts in this case turn on the credibility and reliability of the witnesses’ evidence. In their closing arguments, the parties made submissions on the credibility and reliability of the witnesses’ evidence and why I ought to prefer the evidence of their witnesses. I base my findings on the evidence given at the hearing by the three witnesses.

[10] I can accept all, some, or none of a witness’ testimony and I may attach different weight to different parts of a witness’ testimony: Meldrum v. Astro Ventures Ltd. , 2013 BCHRT 144 at para. 4; Campbell v. Vancouver Police Board (No. 4) , 2019 BCHRT 275 at para. 18.

[11] Credibility and reliability require different considerations when assessing a witness. Credibility involves the veracity or truthfulness of a witness. It is about whether a witness is telling the truth. Reliability involves the accuracy of a witness’ testimony, including their ability to accurately observe, recall, and recount what happened: Bradshaw v. Stenner , 2010 BCSC 1398, affirmed in 2012 BCCA 296, leave to appeal refused, [2012] S.C.C.A. No. 392, at para. 186; Hardychuk v. Johnstone , 2012 BCSC 1359 at para. 10; R. v. S.A.S. , 2021 BCPC 69 at paras. 21-27.

[12] The evidence of a witness must be assessed for its “harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable”: Faryna v. Chorny , 1951 CanLII 252 (BC CA) at 357; Jahanian v Jahanian , 2021 BCSC 1890, at para. 8; Gichuru v. Smith , 2013 BCSC 895 at para. 130, aff’d 2014 BCCA 414.

[13] I found Ms. Blokhuis to be an overall credible and reliable witness who testified truthfully to the best of her ability. I found some of her testimony during cross-examination to be problematic, in that her answers to certain questions were vague or she appeared uncomfortable or unwilling to answer a question put to her. I assigned little to no weight to that evidence and preferred to rely on the external evidence in the record.

[14] I found Matthew Smedley to be a credible and reliable witness who testified truthfully to the best of his ability. I did not find his role in addressing the complaint, or his current employment relationship with Mission Possible to affect his credibility.

[15] I found parts of Ms. Lakowski’s evidence to be credible, and other parts to be unlikely, internally inconsistent, or inconsistent with other evidence, including her previously sworn affidavit that was in evidence, as well as the testimony of other witnesses whose evidence I found to be credible and reliable.

[16] Where a key material fact in this decision turns on the credibility and reliability of the witnesses’ evidence, I provide my reasons for preferring a witness’ evidence.

IV BACKGROUND

A. What is Mission Possible? What are the terms of use for the Studio?

[17] Mission Possible is a not-for-profit community development and social enterprise organization located in the DTES. Its mandate is to support people in the DTES to achieve sustainable livelihoods.

[18] People living in the DTES access Mission Possible’s resources and services through a formal membership process that includes registration, a screening meeting with staff members, and completing orientation workshops. The goal of the formal membership process was to involve DTES residents in community building. Members of Mission Possible have access to employment skills training, and special events such as movie showings, camp outs, and community meals.

[19] Mission Possible maintains an “open door policy” whereby it welcomes the diverse backgrounds of all its members. Given the lived experience of those individuals who access Mission Possible’s programming, the organization operates on a second and third chance ethos. Members come from different backgrounds and experiences and may have developed patterns of coping and surviving that are not conducive to the community. These members are supported by Mission Possible staff to develop skill building, healthy ways of coping, and new ways of being. The second and third ethos means members are extended many opportunities to continue accessing Mission Possible’s services and resources.

[20] Mission Possible also operates a pottery studio. The studio is open to individuals who are (1) residents of the DTES, (2) experiencing poverty, and (3) likely to benefit from art enrichment based on their lived experience.

[21] Before using the studio, a resident of the DTES must first meet with Ms. Lakowski and another Mission Possible representative to determine if they satisfy the above criteria for entry.

[22] At the time of the events, the studio was open on Monday and Thursday. Ms. Lakowski was permitted personal use of the studio on Fridays. Ms. Lakowski had a practice of inviting members to share the studio with her on Fridays to work on their personal projects. Only people possessing advanced knowledge of studio equipment and could work independently were allowed to use the studio on Friday. Both Ms. Blokhuis and A were participants who used the studio on Fridays.

B. What gave rise to the complaint?

[23] Ms. Blokhuis became a member of Mission Possible and the studio in 2012.

[24] It is not in dispute that, in September 2018, A made a racist and inappropriate remark in the studio about biracial people. Ms. Blokhuis was not present when the comment was made and was told about it by a third person in October 2018. After she learned about A’s comment, Ms. Blokhuis asked Ms. Laskowski to arrange for her and A to use the studio at different times.

[25] Ms. Blokhuis gave oral testimony that it was Ms. Lakowski who told her about the incident, and relayed A’s comment as “races shouldn’t mix” and “biracial people shouldn’t exist.” Ms. Lakowski denies that she was the individual who told Ms. Blokhuis about A’s comment. Ms. Lakowski says she did not hear the full conversation that led up to the comment, but overheard A saying something to the effect of “children that come from two races have a problem identifying where they belong.”

[26] I pause briefly to comment that this complaint is not about A’s statement and whether it rises to discrimination under the Code . In other words, this decision does not require an analysis of the comment in light of cases such as Pardo v. School District No. 43 , 2003 BCHRT 71 or Brito v. Affordable Housing Societies and another, 2017 BCHRT 270. At the hearing, it was not in dispute that, regardless of A’s exact wording, the comment was racist, offensive, and unacceptable. Rather, the dispute is about whether Mission Possible adequately and reasonably responded to Ms. Blokhuis’ complaint.

[27] Mission Possible responded to the complaint, including asking Ms. Blokhuis to set aside the issue and continue to share the studio space alongside A in a respectful manner, escalating the complaint to Mr. Smedley, using mediation tools to coach Ms. Blokhuis through the issue, and deciding that A and Ms. Blokhuis would attend the studio on alternate Fridays.

[28] Friday, November 30 ^th was the first Friday of the new alternate schedule, and Ms. Blokhuis’ designated day to use the studio. A came to the studio while Ms. Blokhuis was there. Ms. Blokhuis left the studio and did not return.

[29] On Monday, December 17, Ms. Lakowski packed up Ms. Blokhuis’ belongings that remained at the studio and delivered them to Ms. Blokhuis’ home.

V ANALYSIS AND DECISION

[30] To prove discrimination, Ms. Blokhuis must establish that:

1. She has a personal characteristic protected by the Code ;

2. Mission Possible’s conduct adversely impacted her in services customarily available to the public or in employment; and

3. Her race was a factor in the adverse impact she experienced in services or employment: Moore v. BC (Education) , 2012 SCC 61 [ Moore ] at para. 33.

[31] There is no dispute that Ms. Blokhuis is biracial and therefore protected under the Code on the ground of race.

[32] In this decision, I first explain how the circumstances of the complaint engage the protected area of services under s. 8 of the Code , but do not engage the area of employment under s. 13. I then make findings about Ms. Blokhuis’ allegation that Mission Possible’s response to her complaint was inadequate and therefore discriminatory and, as a result, she was constructively banned from the studio. In that section, I address Mission Possible’s argument that they provided a reasonable resolution of the complaint in the circumstances.

A. Is the studio a service customarily available to the public?

[33] Ms. Blokhuis alleges that Mission Possible discriminated against her on the basis of her race contrary to s. 8 of the Code . Unless there is a bona fide and reasonable justification for the conduct alleged, s. 8 prohibits a person from denying a person “any accommodation, service or facility customarily available to the public” or discriminating “against a person…regarding any accommodation, service or facility customarily available to the public.”

[34] Mission Possible argues that the studio is not a service customarily available to the public. Mission Possible maintains that the studio’s services were only for a subset of the public, and only available to that subset after meeting certain eligibility criteria. They point to the process of entry to support this position. Namely, participants must go through a screening process and meet a set of criteria to be allowed to attend the studio. Further, they assert that use of the studio on Friday was discretionary, as it was by Ms. Lakowski’s invitation, only.

[35] I disagree with Mission Possible’s position and find that use of the studio is a service customarily available to the public.

[36] The “public” for a service may be a subset of the larger community or public: University of British Columbia v. Berg , 1993 CanLII 89 (SCC), [1993] 2 SCR 353 [ Berg ] at p. 386. The Supreme Court of Canada in Berg said that “every service has its own public, and once that “public” has been defined through the use of eligibility criteria, the Act prohibits discrimination within that public”: at para. 383. Berg further states, “the eligibility criteria, so long as they are non-discriminatory, are a necessary part of most services, in that they ensure that the service reaches only its intended beneficiaries. Some services or facilities will create public relationships between the institution and the users, while others may establish only private relationships.”

[37] The inquiry of whether the studio is a service customarily available to the public requires me to “identify the service in question, and then to determine whether that service gives rise to a public relationship between the service provider and the service user”: Gould v. Yukon Order of Pioneers , 1996 CanLII 231 (SCC), [1996] 1 SCR 571 [ Gould ] at para. 58; see also Marine Drive Gold Club v. Buntain et al. and B.C. Human Rights Tribunal, 2007 BCCA 17 [ Buntain ]. In determining what constitutes the public, the analysis is contextual. The non-exhaustive criteria include “selectivity in the provision of the service, diversity in the public to whom the service is offered, involvement of non-members in the service, whether the service is of a commercial nature, the intimate nature of the service and the purpose of offering the service”: Gould at para. 68.

[38] I begin with the service in question and then consider the nature of the relationship between Mission Possible and the users of the service.

[39] Mission Possible is a not-for-profit organization structured to serve the diverse community in the DTES. The studio is Mission Possible’s charitable entity. The service the studio provides is enriching art programming through access to the studio. Mission Possible’s resources, including the studio, are public facing and available to all who are admitted through the eligibility process.

[40] Turning to the service users, a formal registration process is required to become a member of Mission Possible. The registration process is not onerous and is intended to promote community building and belonging. The studio’s service users are DTES residents, experiencing poverty, and likely to benefit from art enrichment based on their lived experience. By its own submission, the studio is a crucial means through which Mission Possible furthers its mandate to support impoverished members of the DTES community to achieve sustainable livelihoods through employment. As in Berg , any difference between the studio members and the public at large will be the result only of the screening process, and there is nothing in the nature of the members which suggests that Mission Possible and its members “have come together as a result of a private selection process based on anything but the admissions criteria.”: Berg at p.387. The evidence before me is that the studio’s purpose is to provide community access to art enrichment opportunities to the residents of the DTES. The nature of the studio and the members indicate a public relationship.

[41] Mission Possible argues that the studio, run by Mission Possible, is not of a public nature but more of a private nature because participants must go through a further screening process and meet eligibility criteria in order to gain access to the studio. Mission Possible’s screening process does not negate a public relationship. As highlighted as an example in Berg , Canada or Quebec Pension Benefits are available to only a subset of Canadians who have met the qualifying age criteria; similarly, Mission Possible’s eligibility requirements limit their services to target their intended community. As previously noted, any service has its own criteria and will only ever be available to a subset of the public: Berg . The studio’s users are a subset of the public – DTES residents – who may seek to take advantage of Mission Possible’s services, including the studio. I find Ms. Blokhuis was a member of a subset of the public who could access the studio through Mission Possible’s eligibility process.

[42] I do not accept Mission Possible’s argument that Friday studio use was not customarily available to the public. First, I find there was a public relationship created with a smaller subset of service users on Friday. Ms. Lakowski selected members with an advanced knowledge of studio equipment who could work independently. As noted above, Ms. Lakowski was permitted personal use of the studio on Fridays. Nonetheless, Ms. Lakowski is an employee of Mission Possible and facilitates use of Mission Possible’s studio. I find that it was in the capacity of the public face of Mission Possible – and not a personal capacity – that she had authority to share the studio with other users on Fridays. Second, I find that the custom was for Ms. Lakowski to invite studio users on Friday to work on special projects. This access was habitually offered to members in Ms. Blokhuis’ position who met the additional criteria, and had been offered to Ms. Blokhuis since 2012. I conclude that Ms. Blokhuis, by virtue of meeting the eligibility process, did not cease to be a member of the public to which Mission Possible offers its services. For these reasons, I find that Ms. Lakowski’s practice of inviting members of the studio to use it on Friday is also a service customarily available to Mission Possible’s studio members. In other words, studio use on Friday was a service customarily available to a subset of Mission Possible’s public, which included Ms. Blokhuis.

[43] This complaint engages s. 8 of the Code .

B. Was Ms. Blokhuis a volunteer at the studio?

[44] The Tribunal has long established, and the parties do not dispute, that volunteer positions may constitute “employment” under s. 13 of the Code : Nixon v. Vancouver Rape Relief Society , 2002 BCHRT 1, at para. 61. Mission Possible argues, and I agree, that, on balance, Ms. Blokhuis did not establish any of the criteria for proving she held a volunteer role at Mission Possible that would engage s. 13.

[45] Factors that the Tribunal takes into consideration to determine whether a volunteer relationship exists that engages s. 13 are the existence of: a formal recruitment and interview process, a training process including defined tasks, an agreement to abide by the policies and practices of the organization for which the volunteer is to provide services, and set requirements as to volunteer availability and defined tasks: Nixon v. Vancouver Rape Relief Society , 2002 BCHRT 1, at para. 61.

[46] Mission Possible says studio participants are neither employees nor volunteers of Mission Possible. Studio members are expected to do simple chores to keep the studio space clean and functional.

[47] Ms. Blokhuis testified that when she started using the studio in 2012, Ms. Lakowski gave her a volunteer orientation and 2 volunteer hours in exchange for using the studio on Friday. Ms. Lakowski then trained Ms. Blokhuis on how to run the studio. Ms. Blokhuis’ tasks included cleaning the studio, mixing the glaze from time to time, loading and unloading the kilns, and any technical studio tasks Ms. Lakowski needed help with.

[48] In 2015, Mission Possible offered new orientation training to all their members and volunteers. This training was not related to the studio specifically, but to Mission Possible’s employment readiness program. Ms. Blokhuis says that, at some point, the volunteering structure changed, and she volunteered to help Ms. Lakowski with personal tasks, like redesigning the website for Ms. Lakowski’s face painting business, developing her business logo, and helping her apply for showings at art exhibitions.

[49] Ms. Blokhuis relies on several 2015 email exchanges with Ms. Lakowski and other Mission Possible staff to prove her volunteer status. The emails concern scheduling a workshop for “volunteers who are already employed and cannot take time off work to attend the regular workshop.” I accept Mr. Smedley’s evidence that this workshop related to Mission Possible’s employment readiness program. Mission Possible offered a condensed overview of the program for members who were not pursuing employment through Mission Possible. This is consistent with Ms. Lakowski’s email offering Ms. Blokhuis and others a condensed version of the training to “be a part of Mission Possible.” Ms. Blokhuis replied by email that the condensed training was offered on too short a notice and could not attend. Ms. Lakowski responded with her commitment to finding another workshop for Ms. Blokhuis to attend.

[50] I am not persuaded Ms. Blokhuis was a volunteer at Mission Possible in the fall of 2018. The emails that she provided date back to 2015, and reference orientation, job-skills training, and a workshop for “volunteers who are already employed and cannot take time off work to attend the regular workshop.” While she may have been a volunteer in the first years she was a member of Mission Possible, Ms. Blokhuis was no longer volunteering at the studio at the time of A’s comment. I am not persuaded that characterizing her assistance to Ms. Lakowski on personal matters unrelated to Mission Possible or the studio continued to qualify her as a volunteer within the meaning of s. 13 of the Code . Additionally, her communications with Ms. Lakowski suggest that she did not have set requirements or expectations to attend the studio at certain days or times. She exercised control over when she went to the studio, what projects to work on, and what tasks to complete around the studio. I find Ms. Blokhuis did not have a volunteer position that would bring her under the protection of S.13 of the Code .

C. Did Mission Possible adequately and reasonably respond to Ms. Blokhuis’ complaint?

[51] The next issue I consider is whether Ms. Blokhuis has established that Mission Possible discriminated against her based on her race in its response to her internal complaint about A’s racist comment. Ms. Blokhuis alleges that Mission Possible’s response was inadequate, and implicit in this is an adverse impact connected to race.

[52] A service provider is required to adequately and reasonably respond to complaints of discrimination so as to meet the “goal of a discrimination free environment”: Hale v. University of British Columbia Okanagan (No. 5) , 2023 BCHRT 121, at para. 25, citing School District No. 44 (North Vancouver) v. Jubran , 2005 BCCA 201 at para. 94.

[53] In assessing whether a service provider has met its duty to respond, the Tribunal may consider whether the service provider had a proper understanding of discrimination; treated the allegations seriously and sensitively; and whether the complaint was resolved in a manner that ensured a healthy, discrimination-free environment: Hale at para. 26, citing Laskowska v. Marineland of Canada Inc. , 2005 HRTO 30 ; Jamal v. TransLink Security Management and another (No. 2) , 2020 BCHRT 146 [ Jamal ], at para. 106. The Laskowska considerations were adapted for the service context in Hale :

(1) Awareness of issues of discrimination/harassment, policy, complaint mechanism and training : Was there an awareness of issues of discrimination and harassment at the time of the incident? Was there a suitable anti-discrimination/harassment policy? Was there a proper complaint mechanism in place? Was there adequate training;

(2) Post-complaint: seriousness, promptness, taking care of the complainant, investigation and action : Once an internal complaint was made, did the service provider treat it seriously? Did it deal with the matter promptly and sensitively? Did it reasonably investigate and act; and

(3) Resolution of the complaint (including providing the complainant with a healthy environment) and communication : Did the service provider provide a reasonable resolution in the circumstances? Did the service provider provide the complainant a healthy, discrimination-free environment? Did it communicate its findings and actions to the complainant? [at Laskowska para. 59; Hale at para. 26]

[54] As explained in Hale , these considerations are not rigid, but “are simply a useful guide to assessing the effectiveness of a service provider’s efforts to foster and, where necessary, restore a discrimination-free environment. There may be more than one reasonable way to respond: Laskowska at para. 60. Context is critical, and perfection is not the standard”: para. 27. Generally, the service provider’s response should be prompt, effective, and proportionate to the seriousness of the incident: Hale at para. 218.

[55] Before summarizing Mission Possible’s arguments, I note that Mission Possible frames their argument in terms of a bona fide and reasonable justification, whereas the applicable legal framework is that set out above. Specifically, a service provider does not accommodate its service-users’ need for a discrimination-free environment; rather, it must ensure that it fulfils the right to a discrimination free environment. That said, Mission Possible’s arguments are responsive to the legal framework set out above. I have therefore considered Mission Possible’s arguments about reasonable accommodation or accommodation short of undue hardship in assessing whether Mission Possible met its obligation to adequately and reasonably respond to Ms. Blokhuis’ complaint about A’s comment. As the parties have made submissions that address the legal framework in Laskowska , I find it helpful to use the Laskowska factors in organizing the analysis section. I considered that it is fair to do so because Mission Possible canvassed the relevant criteria, I have considered all their arguments, and framing the analysis this way does not change the result of my decision.

[56] Mission Possible says, at its core, Ms. Blokhuis’ complaint is that she was unsatisfied by the mediation process that it implemented, and by the solution that it proposed. They say that Ms. Blokhuis’ race was not a factor in the alleged adverse impact that she experienced.

[57] Ms. Blokhuis’ race need only be a factor, not the sole factor in the adverse impacts she experienced: Québec (Commission des droits de la personne et des droits de la jeunesse) v. Bombardier Inc . (Bombardier Aerospace Training Center) , 2015 SCC 39 at paras. 45-52; Radek No. 3 , at para. 474. Mission Possible’s motive or intentions are not determinative in finding whether Ms. Blokhuis’ protected characteristic was a factor in the adverse impacts she experienced; the focus of the Tribunal’s inquiry is on Mission Possible’s actions effect on Ms. Blokhuis: Radek v. Henderson Development (Canada) and Securiguard Services (No. 3) , 2005 BCHRT 302 [ Radek No. 3 ] at paras. 474-482; British Columbia Human Rights Tribunal v. Schrenk , 2017 SCC 62 [ Schrenk ] at para.

[58] Racial discrimination is rarely overt and is “most often subtle and pernicious.” Campbell v. Vancouver Police Board (No. 4) 2019 BCHRT 275 [ Campbell ] at paras. 102 – 105 . As a result, the Tribunal has acknowledged that most findings of racial discrimination turn on an inference: Campbell at para. 33. para. 105. In finding an inference of race-based discrimination, context is critical:

In large part, this is because: Individual acts themselves may be ambiguous or explained away, but when viewed as part of the larger picture and with an appropriate understanding of how racial discrimination takes place, may lead to an inference that racial discrimination was a factor in the treatment an individual received.

Campbell at para. 105.

[59] Mission Possible acknowledges that allegations of racism will seldom be overt. Such allegations require a careful analysis of conduct that, while not overtly racist, may subject an individual to negative effects that are rooted, influenced or caused by that person’s race. They rely on Ramadan v. Kwantlen Polytechnic University and others , 2017 BCHRT at paras. 143-44 to argue that, while examinations of racism must be careful and nuanced, the evidence must nevertheless be capable of showing, either directly or by reasonable inference, that the complainant’s race played a part in the decision in question. They say there is no basis to infer that the mediation process proceeded in a way that was unsatisfactory to Ms. Blokhuis because she is a biracial person, or that their attempt to address and resolve the situation was in any way influenced by the fact that Ms. Blokhuis is biracial.

[60] For the following reasons, I find an inference between Ms. Blokhuis’ race and Mission Possible’s response to her complaint. I do not accept Mission Possible’s argument that they provided a reasonable resolution in the circumstances. Additionally, I reject Mission Possible’s representation that their response was adequate, that Ms. Blokhuis was an unreasonable partner in resolving the complaint, and that she simply chose not to return to the studio. Such portrayals fail to consider the manner in which Mission Possible’s efforts unfolded.

1. Awareness of issues of discrimination/harassment, policy, complaint mechanism and training

[61] Some evidence was given at the hearing that Mission Possible staff had received anti-racism training. There is no evidence before me as to whether the anti-racism or anti-discrimination training is given to members of Mission Possible and the studio. Further, there is no evidence that Mission Possible had an anti-discrimination policy or proper complaint mechanism in place at the time of the incident.

[62] Mr. Smedley’s evidence is that Mission Possible’s anti-racism training assisted him in recognizing the severity of the situation, that the organization wanted to take Ms. Blokhuis’ complaint seriously and see a positive outcome. He used the training to help Ms. Lakowski build an understanding of Ms. Blokhuis’ experience. He says he and Ms. Lakowski talked about why the comment was racist and offensive. His goal was to have Ms. Lakowski understand that the issue was something Mission Possible needed to address and take seriously. Mr. Smedley gave evidence that the anti-racism training he received at Mission Possible underpinned his suggestion to Ms. Lakowski to frame the conversation in a way to have the individuals talk from an “I” point of view rather than “you.” My understanding is that this communication technique is used in conflict resolution, generally, and is not specific to anti-racism training. Nevertheless, I accept that Mr. Smedley’s training placed him in a position to recognize the comment as racist and offensive. I also accept that it assisted him in understanding what Ms. Blokhuis had experienced, and that the organization needed to take her concerns seriously.

[63] Ms. Lakowski testified that she had participated in anti-racism training at Mission Possible. There is no evidence before me as to whether Ms. Lakowski received anti-racism training before or after Ms. Blokhuis made her complaint to Mission Possible. Regardless of when the anti-racism training occurred, for the following reasons, I find that Ms. Lakowski did not have an awareness of the issues of discrimination, and that she did not receive adequate guidance to implement the anti-racism training.

[64] Ms. Lakowski’s evidence is that when A made the offensive remark, another studio user overheard and told A, “all people should be treated equally.” Ms. Lakowski’s affidavit said she did not take any immediate steps to intervene, as she felt the other studio member’s response appropriately addressed A’s comment. At the hearing, however, Ms. Lakowski testified that she intervened, and told A something to the effect of, “that was an inappropriate remark for this space.” At the same time, Ms. Lakowski testified on direct examination that, at the time Ms. Blokhuis raised her complaint, she did not comprehend how the comment may have been perceived as offensive. That evidence is not consistent with her other evidence at the hearing that she immediately intervened. The former evidence is consistent with her affidavit. In her affidavit she stated she thought the comment was “uninformed, but clearly opinion”. She reiterated in early written communications with Ms. Blokhuis and A that she viewed the comment as a “point of view,” or a “personal and political view.” In contrast, during cross-examination, Ms. Lakowski testified that she “absolutely” recognized it as being a racist comment.

[65] I do not accept Ms. Lakowski’s oral evidence at the hearing that, at the time the statement was made, she recognized it as racist and immediately addressed it with A. This evidence was self-serving and inconsistent with her affidavit and evidence given during direct examination that she did not comprehend how the comment may have been perceived as offensive.

[66] Lastly, I find Mission Possible did not have a proper complaint mechanism in place at the time of the complaint. Ms. Lakowski’s evidence was that her initial response to Ms. Blokhuis’ complaint was to take no action, and to observe A and Ms. Blokhuis’ interactions with each other the next time they were in the studio. As highlighted later in this decision, Ms. Lakowski asked both Ms. Blokhus and Ms. A to put aside their political differences, remain respectful of each other, and continue to use the studio as they always had. It was several weeks after Ms. Blokhuis made her complaint, and several weeks of expressing to Ms. Lakowski that the issue had not been resolved, that Ms. Lakowski escalated the complaint to Mr. Smedley.

[67] In summary, at the time of the incident, Ms. Lakowski did not have an awareness of discrimination. She did not have suitable training to adequately respond to Ms. Blokhuis’ complaint. Mission Possible did not have a suitable anti-discrimination policy or proper complaint mechanism in place at the time of the complaint.

2. Post-complaint: seriousness, promptness, taking care of the complainant, investigation and action

[68] In this section, I consider Mission Possible’s response after Ms. Blokhuis raised her concerns to Ms. Lakowski, and Ms. Lakowski and Mr. Smedley’s actions to resolve the complaint.

a. Ms. Lakowski’s Initial Response – October 2018

[69] There is no dispute that, in early October 2018, Ms. Blokhuis told Ms. Lakowski that A’s comment had adversely impacted her, and she requested that she and A use the studio on different days. Ms. Blokhuis and Ms. Lakowski dispute what information was provided to A about Ms. Blokhuis’ complaint.

[70] Ms. Lakowski says she told Ms. Blokhuis that she would speak to A to explain why the comment was inappropriate and would ask A to apologize to Ms. Blokhuis. Though she committed to this, she said she did not take any action after the conversation because, at the time, she didn’t see that there was an issue between Ms. Blokhuis and A. Ms. Lakowski decided to wait to see if Ms. Blokhuis and A could work things out, and to see what happened the next time they were together in the studio.

[71] The next time Ms. Blokhuis and A were both in the studio was on Friday, October 12, 2018. When A entered the studio, Ms. Blokhuis texted Ms. Lakowski, “why is the racist here?” They continued to communicate by text. Ms. Lakowski replied, “desperate to see me apparently, won’t stay long, if I have to I’ll take her out for coffee.” Ms. Blokhuis expressed her hope that A would not be back the following week because “we shouldn’t have to share the studio with a racist. Please talk to her about not coming on Fridays.” Ms. Lakowski said it would be “tricky” because of Mission Possible’s “open door policy for those who are mistaken, misinformed, marginalized.” She noted that “we can’t bar people just because they are fd up” [as written] but that she would seek advice and address the matter. Ms. Blokhuis responded, “I’m not requesting that she be barred completely, just on Fridays. She would still have other options to come in.”

[72] Ms. Lakowski testified that she took A aside that day and spoke to her. She told A that the comment generally offended people and told her, “You know better than that” and “don’t do that.” A apologized to Ms. Lakowski. Ms. Lakowski understood that A was willing to apologize to Ms. Blokhuis and keep her distance from her. She said Ms. Blokhuis was not willing to hear an apology.

[73] What immediately followed was a problematic email correspondence between A and Ms. Lakowski, followed by email correspondence between Ms. Blokhuis and Ms. Lakowski which reflects their starkly divergent views about the adequacy of Mission Possible’s response to that point.

[74] On October 14, A emailed Ms. Lakowski about Ms. Blokhuis. A’s email reads in part, “So I was doing some thinking…She finds my political views offensive; I feel the same way about her SJW liberal Feminazi manhating lesbian communist mindset. She thinks I’m a racist; I feel the same about her. I wasn’t sitting there that day [N-word] bashing: she was sitting there white bashing.” I understand the “white bashing” comment to be Ms. Blokhuis allegedly telling A and another studio member, “I suggest you educate yourself before offering your opinions.” A described Ms. Blokhuis’ alleged comment as “over the top condescending and RUDE.” [as written]. She further wrote that she was annoyed that the first time she could “get away to spend time” with Ms. Lakowski in 6 weeks was overshadowed by Ms. Blokhuis’ “political bs.” Ms. Lakowski gave evidence that she viewed this email as “a rant.”

[75] In the same email, A said “Maybe I CAN come other days. I probably will…Its also not my problem, if she can only come on Fridays.” [as written]

[76] I understand from A’s email that she and Ms. Blokhuis interacted on Friday, October 12, and Ms. Blokhuis left the studio early. I also understand from the email that Ms. Lakowski’s conversation with A on October 12 identified Ms. Blokhuis as the person who was offended by the comment; disclosed that Ms. Blokhuis could only attend the studio on Friday and did not want to share studio time with A; and sought to canvass A’s availability to attend the studio on days separate from Ms. Blokhuis. I note that neither Ms. Blokhuis nor Mission Possible gave evidence about Ms. Blokhuis’ interaction with A, or Ms. Lakowski canvassing A’s availability to come to the studio during its operating hours on Monday and Thursday.

[77] On October 15, Ms. Lakowski replied to A, in part:

Well that is some thinking [A], lol […] it seems that you have come to the right conclusion on your own, that is: not to be political etc in the studio[…] I need you both to still be polite and courteous to each other, frenemies is ok, the fact that you can come on other days is not her business, if you had not placed the boundary on Fridays it wouldn’t be an issue…you can see Larissa’s email but I didn’t let her see yours.”

[78] Ms. Lakowski also wrote to Ms. Blokhuis the same day. She asked Ms. Blokhuis to:

put your political and personal views aside while you are here in the studio. Its up to me to keep the atmosphere pleasant and conducive to work. I need you both to still be polite and courteous to each other. My expectations will be the same for both of you. If for some reason we are not able to soften the atmosphere I will work alone on Fridays. I know we can all get past this.

[79] Ms. Blokhuis replied to Ms. Lakowski on October 18:

You’re a good person, but you’re trying to get away with doing nothing, which supports [A’s] racism. This is not an issue of politics, it’s an issue of allowing hate speech. It’s disappointing that you will not guarantee safety for just one day per week. I would like to finish the projects I have started, and then will take a break from the studio.

[80] Ms. Lakowski responded to Ms. Blokhuis:

I’m sorry that you are allowing this conflict to force you out of the studio, we all have to make concessions to others to achieve our goals, you most likely will be working with racist individuals in your lifetime, it can’t always be throwing out the baby with the bathwater, just to be clear, [A] is not now, nor has ever been a threat to you, I resent that you claim this space to be unsafe, [A] may have a skewed view of life, but many here have different points of view, until now I have not had to monitor the conversations in the pottery [studio] as I assume that this is an adult space and people can agree to disagree, if there is any slant here it’s that this is a Christian community space and MP has a strict inclusive policy, no one is [barred], they are invited to come back when they can behave in a safe and social manner, You may have been offended by something [A] said but you also offended 2 others with something you said, I am not doing “nothing”, I am encouraging you to forgive and repair this rift.” [as written].

I understand the offending statement Ms. Lakowski was referring to was Ms. Blokhuis’ comment to A and the other studio user to educate themselves before offering an opinion.

[81] On October 29, Ms. Blokhuis responded:

It’s common to minimise the problem and blame the target of racism instead of the racist, but I suggest you take a different tac. You are attempting to blame me for being pushed out of the studio, however I did not say anything racist, and I am not protecting a racist. There is a qualitative difference between perpetrating racism and explaining systemic racism. [A and the other studio member were] offended [by my statement] because they didn’t want their racism challenged, which is in no way comparable to what [A] said [about biracial people]. The idea that I should ignore the problem is not a solution. It normalises racism and protects you and [A], and does nothing for me or my safety. You may resent having the studio called out as an unsafe place, but I hope you will try to understand it as well.

Ms. Blokhuis provided links to articles and asked for the date of the next kiln firing.

[82] On November 1, Ms. Lakowski replied:

talking about or educating others about racism is not absolutely necessary or appropriate in the pottery studio, you were not racially targeted by anyone here, I have invited you to talk with the others to repair this situation of misinformation and infighting, again all these choices are yours. I am a facilitator here and I will not be directly involved in this argument, if you still feel that you cannot comply with the “agree to disagree,” then perhaps this studio is no longer a fit for you, I have to follow the [Mission Possible] mandate of inclusion, please let me know what you decide, we can also go for coffee and discuss this in person if you wish, you have a piece of…sculpture…I am planning to fire early next week, I hope to see you.

[83] During cross-examination, Ms. Lakowski explained that she suggested the studio was not a good fit because Ms. Blokhuis “was complaining so much.” When probed on this comment, Ms. Lakowski confirmed that she was referencing Ms. Blokhuis’ complaints about A’s comment. Specifically, Ms. Lakowski took issue with Ms. Blokhuis referring to A as “the racist” and considered this to be Ms. Blokhuis “calling people names.” She felt that meant, “unfortunately maybe [Ms. Blokhuis] wasn’t happy there. That’s why I suggested perhaps it wasn’t a good fit for her because she seemed unhappy.” She said Ms. Blokhuis, as a grown up, had to decide whether or not she could get along with people in the space.

[84] The tone of Ms. Lakowski’s emails to Ms. Blokhuis when I compare them to the tone of her email to A reveals the inadequacy and lack of sensitivity of Mission Possible’s response. In response to what she described at the hearing as a “rant,” Ms. Lakowski’s email began by expressing amusement at A’s communications, “well that is some thinking [A], lol.” She again described A’s comments as “political.” Then, she confided in A that the fact A could come on other days, “is not [Ms. Blokhuis’ business]” and copied her on Ms. Blokhuis’ email, writing, “you can see Larissa’s email but I didn’t let her see yours.” In my view, the tone of Ms. Lakowski’s communications reinforces Ms. Blokhuis’ assertion that the process was not safe for her, and that Ms. Lakowski privileged A’s safety and comfort over her own.

[85] In my view, Ms. Lakowski’s ‘lol’ response to A’s casual use of the term ‘[N-word] baiting’ and other inflammatory labels placed on Ms. Blokhuis shows that, despite reading the vitriol launched at Ms. Blokhuis, and chose to privilege A’s feelings and needs over Ms. Blokhuis’ repeated statements that she needed to feel safe. Significantly, the tone of Ms. Lakowski’s emails to Ms. Blokhuis did not change after having received and read A’s email. This further reveals that Mission Possible’s response was not concerned with taking care of Ms. Blokhuis. A’s email contained highly offensive terms to apparently describe characteristics A had imputed to Ms. Blokhuis. Instead of the email being a caution to take Ms. Blokhuis’ concerns more seriously, or that any previous offer by A to apologize to Ms. Blokhuis was no longer a likely option, Ms. Lakowski doubled down on her request that Ms. Blokhuis play nice with A. Ms. Lakowski had so many opportunities to acknowledge the harm; instead, she intensified her perception that Ms. Blokhuis was the problem.

[86] Further, Ms. Lakowski’s characterization of A’s comment, and Ms. Blokhuis’ feelings about the comment as “personal and political views” suggests both that Ms. Lakowski did not have an awareness of issues of discrimination or that she treated the internal complaint seriously. Ms. Lakowski’s characterization minimized the comment while also laying equal blame on Ms. Blokhuis for her negative response. She demanded that they both “still be polite and courteous to each other” and held them to the same expectations.

[87] In addition to characterising the comment as a “personal and political view”, Ms. Lakowski also characterized the complaint as an interpersonal conflict. Instead of suspecting Mission Possible’s response was the issue – as stated repeatedly by Ms. Blokhuis – Ms. Lakowski suspected Ms. Blokhuis had a personal issue with A. She stated at the hearing, with the benefit of hindsight, that Ms. Blokhuis’ complaints about A were not about the “statement exactly, but it seemed more personal to me, not about what [A] had said, but [A] personally.” Ms. Lakowski suggested that Ms. Blokhuis was driven by personal animus toward A, instead of genuinely reacting to A’s comments. This is inconsistent with Ms. Lakowski’s oral evidence that Ms. Blokhuis’ complaints started after she learned of A’s comment. In my view, labelling this as an interpersonal conflict or Ms. Blokhuis’ personal quarrel with A, was a further attempt to discredit Ms. Blokhuis’ experience.

[88] When Ms. Blokhuis said her complaint was not a matter of politics, that she was disappointed the studio would not guarantee her safety for “just one day” per week, and that Ms. Lakowski was “trying to get away with doing nothing,” regarding her complaint, Ms. Lakowski responded defensively.

[89] Ms. Lakowski resented Ms. Blokhuis for questioning the safety of the space. Instead of receiving Ms. Blokhuis’ statements that she felt unsafe and would take a break from the studio sympathetically, she characterized Ms. Blokhuis statements as “allowing this conflict to force [her] out of the studio” and encouraged her to make concessions with racists to “achieve [her] goals”. Lastly, she equated Ms. Blokhuis’ statement to A and another studio member (“I suggest you educate yourself before offering your opinions.”) with A’s statements. She wrote, “you may have been offended by something [A] said but you also offended 2 others with something you said.” I note here that by framing Ms. Blokhuis as “may” having been offended and A having actually been offended, she reinforced to Ms. Blokhuis that she did not believe the impact of the comment on her, and accepted, without doubt, A’s first and third-hand accounts of being offended. She exhibited an inability to comprehend the weight of the harm of A’s words compared to Ms. Blokhuis’.

[90] At the hearing, Mission Possible emphasized A’s offer to apologize to Ms. Blokhuis, and Ms. Blokhuis’ refusal to accept it. There was no evidence that A did, in fact, apologize or attempt to apologize to Ms. Blokhuis.

[91] On the whole, Ms. Lakowski’s tone, mischaracterization of the complaint, false equivalencies, and defensiveness in the face of Ms. Blokhuis’ concerns support my conclusion that Mission Possible did not take Ms. Blokhuis’ complaint seriously, promptly and sensitively, and they did not take care of her during the post-complaint process.

[92] I now turn to what prompted Ms. Lakowski to escalate the complaint to Mr. Smedley, the manner in which she communicated the issue to Mr. Smedley, Mr. Smedley’s response, Ms. Lakowski’s effort to mediate the complaint with Ms. Blokhuis, and the circumstances that brought about the alternate Friday schedule.

b. Escalating the complaint – November 2018

[93] Ms. Blokhuis gave evidence that Ms. Lakowski did not take her complaint seriously or escalate her complaint until after another white studio member restated the obvious – that the comment was offensive. Ms. Blokhuis testified that sometime after the November 1st email, she was at an art event with a white studio member. Ms. Lakowski was also there. The issue at the studio came up in conversation. The white studio member impressed upon Ms. Lakowski the seriousness of the situation. It was after this conversation that Ms. Lakowski escalated the matter to Mr. Smedley.

[94] For her part, Ms. Lakowski said that did not happen. Ms. Lakowski testified that she escalated the matter to Mr. Smedley because the conflict was beyond her “scope” to resolve. She explained, “A was willing to do whatever it takes, but Larissa was not.”

[95] I prefer Ms. Blokhuis’ evidence over Ms. Lakowski’s for two reasons. First, Mr. Smedley encountered the same resistance in Ms. Lakowski to understand the complaint as serious in his later one-on-one with her. Ms. Blokhuis’ evidence is also consistent with Ms. Lakowski’s seeming inability to grasp the harmfulness of the statement, even at the hearing.

Escalating the complaint to Mr. Smedley

[96] On November 15, Ms. Lakowski escalated the matter to Mr. Smedley. They met the following day. Mr. Smedley testified that Ms. Lakowski told him about A’s comment. Ms. Lakowski told him that A was willing to apologize but Ms. Blokhuis was not prepared to sit down with A. From his conversation with Ms. Lakowski, Mr. Smedley understood that Ms. Blokhuis’ would only view the matter resolved if A was banned from the studio.

[97] Mr. Smedley said, for him, the conversation with Ms. Lakowski was about trying to make sure she understood what Ms. Blokhuis had experienced. He said, “What we were ultimately doing was talking about why it was racist, why it was offensive, and I wanted her to understand that it was something we needed to address and take seriously.” However, he did not give evidence of what he actually said to Ms. Lakowski. Ms. Lakowski testified that she does not remember Mr. Smedley explaining the racist nature of the comment and how it could be perceived as racist.

[98] At the meeting, Mr. Smedley suggested that Ms. Lakowski speak to A and Ms. Blokhuis separately to discuss a schedule whereby they would use the studio on different days. After their meeting, Ms. Lakowski forwarded the emails between her and Ms. Blokhuis dated October 15, 18, 19, and 29, to Mr. Smedley. She did not forward her email correspondence with A. There is no evidence before me that Mr. Smedley asked Ms. Lakowski whether there was any correspondence with A, or that he sought to investigate Ms. Blokhuis’ email requesting to use the studio one day a week without A present.

[99] I find that Ms. Lakowski carried the perception that Ms. Blokhuis was the barrier to resolving the issue into her meeting and communications with Mr. Smedley. Her perception influenced how she described the complaint, and Ms. Blokhuis’ position, to Mr. Smedley. In turn, this influenced Mr. Smedley’s perception of Ms. Blokhuis, and his recommendations to resolve the complaint. I find that what Ms. Lakowski selected to communicate about the complaint had a cascading effect within the organization. For example, Mr. Smedley’s evidence was that he understood from Ms. Lakowski that Ms. Blokhuis would only accept a resolution where A was banned from the studio. However, after the first meeting and before the second meeting where he suggests alternate Fridays, he had received the email forwarded to him where Ms. Blokhuis asks for “safety for just one day per week.” Despite evidence to the contrary, he accepted Ms. Lakowski’s report that Ms. Blokhuis wanted to ban A from the studio.

[100] Additionally, Mr. Smedley said, and I accept, that he spent his initial meeting with Ms. Lakowski trying to make sure she understood what Ms. Blokhuis had experienced, discussing why the comment was racist and offensive, and trying to lead Ms. Lakowski to understand that the comment was something Mission Possible needed to address and take seriously. Despite recognizing Ms. Lakowski’s struggles to understand the seriousness of the complaint, Mr. Smedley did not follow up on the matter to make sure it was appropriately resolved.

Ms. Lakowski meets with Ms. Blokhuis

[101] After her meeting with Mr. Smedley, Ms. Lakowski spoke to Ms. Blokhuis. Ms. Blokhuis and Ms. Lakowski gave slightly different versions of their conversation. Ms. Lakowski testified that, within days of discussing the matter with Mr. Smedley, she met with A and Ms. Blokhuis separately to scope out their availability. A said she could come in on Monday, and Ms. Blokhuis could not come in on Thursday. Ms. Lakowski testified that Ms. Blokhuis could only attend on Fridays and asked that Mission Possible ban A from attending the studio on Fridays for 6 months.

[102] Ms. Blokhuis testified that she could not attend on Thursdays, so asked if A could be precluded from attending the studio on Fridays. Ms. Lakowski told her that she could not do that indefinitely. In return, Ms. Blokhuis suggested 6 months, and Ms. Lakowski conceded that 3 months was a workable solution.

[103] Ms. Lakowski testified that, in her view, the issue was still not resolved, so, sometime in mid-November, she went back to Mr. Smedley for guidance. I note that Mr. Smedley did not have the benefit of reading A’s email in which she said she could attend the studio on Mondays. Mr. Smedley suggested that A and Ms. Blokhuis attend the studio on alternating Fridays.

Mediation/Coaching Ms. Blokhuis

[104] During the mid-November meeting with Mr. Smedley, Ms. Lakowski decided that she would try coaching Ms. Blokhuis into finding a resolution with A using a deck of cards from a 3-day coaching workshop she did with Mission Possible. The cards contain sample questions to help the coach ask probing questions. She said the questions have to do with “not taking on the other person’s responsibility” and are designed to ask questions such as “Did you think of it this way?” and “What if you thought about it that way?” Mr. Smedley gave evidence that the cards do not contain questions about race.

[105] Ms. Lakowski then met with Ms. Blokhuis on November 20th. Ms. Lakowski used the cards in her conversation with Ms. Blokhuis. Mr. Blokhuis recalls being asked questions such as “What is your responsibility for this situation?”, “Do you feel like you should have brought up race in this situation?”, “Did you create the issue of your identity?”, “Is this the place to make race an issue?”, “Would you make race an issue elsewhere?” and “What are you going to do to make amends?”. Ms. Blokhuis interpreted these questions to ask her to take responsibility and accountability for being discriminated against in the studio. Ms. Blokhuis did not feel that the mediation attempt was successful. She felt that it identified her as a participating member of the conflict.

[106] I find on the balance of probabilities that Ms. Lakowski framed the questions on the coaching cards in the manner described by Ms. Blokhuis. Ms. Lakowski stated in her oral testimony that she was new to coaching and was nervous about this meeting with Ms. Blokhuis. She said she needed to be “succinct and specific” in her communication with Ms. Blokhuis and used the coaching cards for that reason. Framing the questions with “you” instead of “I” would be consistent with both how Ms. Lakowski and Ms. Blokhuis framed the questions in their oral evidence. I also considered the possibility that Ms. Blokhuis did not correctly recall the exact phrasing of the questions. Still, I readily accept that, in light of Mission Possible’s response to Ms. Blokhuis’ complaint up to that point, the tone and questions made her feel blamed for what happened, and she understood the coaching to place the onus on her to make amends with A, rather than putting the responsibility on Mission Possible to take affirmative steps to make the studio a discrimination-free space. The coaching experience left her feeling depressed. She did not feel like Mission Possible was listening or taking her need to feel safe seriously. Ms. Blokhuis said that the mediation process once again reiterated to her that her feelings would not be prioritized, and Mission Possible’s focus was on not disrupting A’s life or hurting A’s feelings.

3. Resolution of the complaint and communication

[107] I understand Mission Possible’s arguments about having a bona fide and reasonable justification for not accommodating Ms. Blokhuis to the point of undue hardship to be arguments concerning whether they provided a reasonable resolution in the circumstances.

[108] Mission Possible’s mandate is to support impoverished members of the DTES community to achieve sustainable livelihoods through employment. The studio is one such means through which Mission Possible furthers this purpose. Mission Possible says that the mediation process and the solution to offer alternate Fridays is rationally connected to their purpose and goal to maintain a second chance ethos. Mission Possible says that banning A would be inconsistent with their commitments to the Mission Possible community, A, and Ms. Blokhuis. Mission Possible argues that accommodating Ms. Blokhuis’ concerns “beyond the system put in place” would have caused hardship; in other words, resolving Ms. Blokhuis’ complaint beyond the alternate Friday schedule offered would not have been reasonable in the circumstances.

a. Was the alternate Friday schedule a reasonable resolution in the circumstances?

[109] To resolve Ms. Blokhuis’ complaint, Ms. Lakowski texted Ms. Blokhuis on November 25, “You are welcome to come in on Friday, and alternate Fridays while I’m open. I hope that works for you.” Ms. Blokhuis responded expressing her concern that any pottery she makes will dry out too much if she can only attend every other week. Ms. Blokhuis testified that she was not given a reason why Mission Possible did not accept a hiatus on A’s use of the studio on Friday, or why A had to attend the studio on Friday, and not any other day. Ms. Lakowski testified that it was not Ms. Blokhuis’ “say” to punish A by prohibiting A’s studio use on Friday for a period, then conceded on cross examination that asking someone not to come on Friday was not a form of punishment. Ms. Lakowski gave evidence that she limited Ms. Blokhuis to alternate Fridays when it was viable to give her all Fridays. She referred to Fridays as “my day” and wanted flexibility in the event she needed or wanted to cancel a session. She said she was “leery” of the arrangement because her “consistency might have gotten interrupted.” She did not give evidence of the frequency with which she historically cancelled sessions, or that she had any conversation about her concerns with Ms. Blokhuis.

[110] I disagree with Mission Possible’s attempt to frame Ms. Blokhuis’ position as requiring A to be permanently banned from attending the studio. In a text message dated Monday, October 15, 2018, Ms. Blokhuis wrote to Ms. Lakowski, “I’m not requesting that she be barred completely, just on Fridays. She would still have other options to come in.” On October 18, 2018, Ms. Blokhuis wrote, “It’s disappointing that you will not guarantee safety for just one day per week.” Ms. Blokhuis was consistent in her oral testimony and unshakeable during cross-examination. There is no basis to accept that Ms. Blokhuis insisted at any time that A be banned from the studio.

[111] Further, I cannot accept that Mission Possible provided Ms. Blokhuis a reasonable response in the circumstances.

[112] As early as October 13, Mission Possible knew that Ms. Blokhuis could only attend the studio on Friday. I accept Ms. Blokhuis’ oral testimony that she asked Mission Possible to pause A’s Friday attendance at the studio for 6-months and was told by Ms. Lakowski that a 3-month hiatus was workable. I understand this to have been Ms. Blokhuis’ preferred resolution.

[113] While seeking to resolve the complaint, Ms. Lakowski did not take care of Ms. Blokhuis or deal with the matter sensitively. For example, she shared Ms. Blokhuis’ email with A, and emailed A, “the fact that you can come on other days is not [Ms. Blokhuis’] business.” In my view, Ms. Lakowski’s overall conspiratorial tone with A suggests that she was not serious about pursuing a temporary arrangement that would allow Ms. Blokhuis to have a discrimination-free environment while using the studio.

[114] Mission Possible says a blanket ban on A would be unreasonable, and the alternate Friday schedule put in place was the extent of what they could offer while balancing their commitment to their open-door policy and second and third chance culture. A acknowledged in her email that she was available to attend the studio on other days. After the one-on-one meeting with A, Ms. Lakowski again confirmed that A could attend the studio on Mondays. Mission Possible has not provided any reason why giving A a 3-month or 6-month hiatus from using the studio on Fridays would have been an unreasonable response in the circumstances, especially in light of A’s acknowledgment that she could attend the studios on Mondays and had been away from the studio on Fridays for at least 6 weeks. Ms. Lakowski testified that excluding someone from using the studio on Friday would not have been viewed as punishment. I do not accept that it would run counter to Mission Possible’s second and third chance culture to limit A’s access to the studio to Mondays, while similarly limiting Ms. Blokhuis’ access to the studio to Fridays. I do not accept Mission Possible’s articulation that it would be unreasonable in the circumstances had they resolved Ms. Blokhuis “beyond the system put in place.”

[115] Finally, Mission Possible acknowledged that temporary breaks from their services happen on occasion. Ms. Lakowski admitted on cross-examination that she understood A’s email and comments constituted a threat to Ms. Blokhuis’ safety. Mission Possible has not provided a credible explanation for why they could not provide a solution other than halving Ms. Blokhuis’ studio time. For the foregoing reasons, I cannot find that Mission Possible accommodated Ms. Blokhuis short of undue hardship. Put in terms of the Laskowska factors, Mission Possible did not provide a reasonable resolution in the circumstances.

[116] I now turn to Ms. Blokhuis’ allegation that, as a result of Mission Possible’s inadequate response, she reasonably believed the studio was not a safe space for her, she had no other reasonable choice but to leave the studio, and was effectively banned from returning.

b. Constructively banning Ms. Blokhuis from the studio

[117] Friday, November 30 ^th was the first Friday of the new schedule, and Ms. Blokhuis’ designated day to attend the studio. A came to the studio while Ms. Blokhuis was there. Ms. Blokhuis left the studio. This was the last time Ms. Blokhuis attended the studio.

[118] Ms. Lakowski testified that the studio entrance was locked. She said “people doing an art class” above the studio recognized A and let her in. A entered to tell Ms. Lakowski that she would not attend that day, or the following Friday. In response, Ms. Lakowski told A that she was not supposed to be there and had to leave. She said the conversation was brief and A left immediately after. She recalls Ms. Blokhuis was alarmed that A had come into the studio. Ms. Blokhuis blamed her for not being able to control the studio. Ms. Blokhuis left 20 minutes later.

[119] Ms. Blokhuis testified that the studio door was locked. Ms. Lakowski went up the stairs to let A in, came back to the studio with A, chatted with her for a few minutes, then told her she was not welcome in the studio that day. Ms. Blokhuis said she then expressed her disapproval over Ms. Lakowski’s lack of control over the studio space, packed some of her belongings, and left the studio.

[120] Between December 14-17, Ms. Lakowski cleared the studio of Ms. Blokhuis’ belongings. On December 14, Ms. Lakowski texted Ms. Blokhuis that her items were firing and could be picked up the following week. Ms. Blokhuis responded, “will the racist be there.” Ms. Lakowski wrote, “that is so inappropriate, I will drop off your items on Tuesday after work.” Ms. Blokhuis said she would pick up her things on Tuesday and pack up her work. Ms. Lakowski responded, “I’m sorry but you are not in control here, and are not invited to come in on Tuesday, I can drop off to you or you can wait until after the holidays.” Ms. Lakowski testified that she told Ms. Blokhuis that she was not invited to come to the studio on Tuesday because it was closed on Tuesday. Ms. Blokhuis said she wanted to come to the studio to ensure that all of her things were removed from the studio. Ms. Lakowski responded, “Your locker is empty, there is nothing else, you had hours to clear out and create garbage for me, with this nastiness in your attitude I don’t want to see you today.” Ms. Blokhuis said she would like to collect the contents of her second locker. Ms. Lakowski said she would pack Ms. Blokhuis’ belongings and deliver them to her home.

[121] On Monday December 17, Ms. Lakowski packed up the remainder of Ms. Blokhuis’ belongings and delivered it to Ms. Blokhuis’ home.

[122] Ms. Blokhuis says when Ms. Lakowski dropped off her belongings, Ms. Lakowski told her that she should find another studio. Ms. Blokhuis did not hear from Ms. Lakowski or Mission Possible again.

[123] Ms. Lakowski testified that when she saw Ms. Blokhuis, she asked if Ms. Blokhuis was coming back to the studio, but Ms. Blokhuis did not respond.

[124] In her affidavit, Ms. Lakowski stated, “I never banned the complainant from using the studio. I have invited her back on several occasions, but she refused to attend.” When this was put to her during her cross-examination, she said that Ms. Blokhuis never contacted her, and she never spoke to Ms. Blokhuis after December 17.

[125] Ms. Lakowski’s affidavit states that she “informed [Mr. Smedley] of [Ms. Blokhuis’] decision to stop using the studio. He confirmed that I took all the necessary steps to meet my organizational obligations.” Mr. Smedley affirmed that Ms. Lakowski informed him that Ms. Blokhuis “had chosen to stop attending the studio rather than accept our proposed solutions. I did not engage with this dispute anymore. I assumed it had been resolved by [Ms. Blokhuis] choosing to stop using the studio services rather than attempt to resolve things with [A] or attend the studio on a day when [A] was not present.” I note here Mr. Smedley accepted Ms. Lakowski’s account that it was Ms. Blokhuis’ choice to no longer use the studio after December. Based on his observation at their initial meeting that she lacked an understanding of the seriousness of the issue, Mr. Smedley should have known that Ms. Lakowski was not equipped to adequately respond to Ms. Blokhuis’ complaint, and that perhaps the report of such a strong reaction to being offered alternate Fridays warranted follow up with Ms. Blokhuis directly.

[126] Ms. Blokhuis argues that a consequence of Mission Possible’s poor response was a lack of safety; her reasonable response was to leave, and this is implicitly connected to her race. Mission Possible says that Ms. Blokhuis did not experience any adverse impact in the area of services because she was never banned. Mr. Smedley and Ms. Lakowski both testified that Mission Possible had never banned anyone, including Ms. Blokhuis, from the studio. I accept their position that such a rigid policy would be inconsistent with their ethic of second and third chances, and personal growth. I also acknowledge that indefinitely banning A from the studio to be in tension with the spirit of this culture. Nevertheless, I find Mission Possible response caused Ms. Blokhuis to reasonably believe that the studio was not a safe space for her.

[127] I accept Ms. Blokhuis’ evidence that, when Ms. Lakowski dropped off Ms. Blokhuis’ belongings, she did not ask Ms. Blokhuis if she was returning to the studio and instead encouraged her to explore pottery studios at community centres.

[128] This finding is consistent with Ms. Lakowski’s overall attitude toward Ms. Blokhuis after she complained about the comment. As early as November 1, 2018, she suggested to Ms. Blokhuis, “perhaps this studio is no longer a fit for you.” It is also consistent with Ms. Lakowski’s sentiment from at least November 1, 2018, that she viewed Ms. Blokhuis’ response to A’s comment as problematic, describing Ms. Blokhuis as frequently “complaining”, “name calling”, and generally “unhappy” at the studio. I also find it consistent with her view on December 14 – 3 days before dropping off Ms. Blokhuis’ belongings – that Ms. Blokhuis’ had a bad attitude and was therefore “not invited to come” to the studio. Ms. Lakowski was inconvenienced by Ms. Blokhuis’ insistence that the studio address A’s comment with an anti-racist lens. That, compounded by her inability to understand the comment as racist, informed her perception that Ms. Blokhuis was an unhappy, name-calling, complainer.

[129] At the hearing, Ms. Lakowski conveyed a sense of exasperation at how Ms. Blokhuis responded to Mission Possible’s efforts to address her complaint. It was evident to me that, at the time of the hearing, Ms. Lakowski still had not grasped how the comment, and Mission Possible’s response to the comment, affected Ms. Blokhuis. It was more distressing to Ms. Lakowski that Ms. Blokhuis referred to A as a racist, than Ms. Blokhuis being affected by the racist comment. As a result, and accepting that labelling a person as “the racist” does not assist discussion or allow for the possibility that the person might learn with appropriate instruction, Mission Possible did not extend the same generosity of spirit of their “second and third chance culture” to Ms. Blokhuis.

[130] Further, I accept Ms. Blokhuis’ oral testimony that she did not trust the studio to maintain her safety after A showed up to the studio on the first day of the alternate schedule. Ms. Blokhuis’ complaints and unhappiness were the result of Mission Possible’s response to her complaint. To use her complaints as justification for denying her services “would be to blame her for refusing to continue to tolerate the discriminatory treatment she was receiving”: Radek v. Henderson Development (Canada) and Securiguard Services (No. 3) , 2005 BCHRT 302, at para. 484.

[131] I find that Ms. Blokhuis had no other reasonable choice but to leave the studio, and was effectively banned from the studio.

4. Conclusion

[132] I find, on a balance of probabilities, that the inadequacy of Mission Possible’s response amounts to race discrimination. As a result, Ms. Blokhuis had no other reasonable choice but to leave the studio.

[133] I find that Mission Possible was ill-equipped to respond adequately. First, for at least a month, Mission Possible failed to understand that the comment was racist. Ms. Blokhuis made several attempts to explain why the response was not adequate, but she was dismissed, and Ms. Lakowski begrudged her for self-advocating. During that first month, Mission Possible also failed to understand how the comment negatively impacted Ms. Blokhuis, even though she communicated her position clearly.

[134] As a result, Mission Possible developed a negative perception of Ms. Blokhuis, and essentially ignored the harm the comment caused her. Mission Possible’s response harmed Ms. Blokhuis, implicitly in connection with her race. She felt she was being blamed, and that she and A were being punished equally. She did not feel listened to, and her communications with Mission Possible reinforced that only A and another white studio member would be heard and believed. Each missed opportunity for Mission Possible to take her complaint seriously compounded the harm on Ms. Blokhuis, and reinforced her belief that Mission Possible would not prioritize her safety. I also find that Mission Possible failed in its response after the matter was escalated to Mr. Smedley. Ms. Lakowski did not give Mr. Smedley a complete understanding of the matter, and he did not circle back to Ms. Lakowski after reading Ms. Blokhuis’ email stating she only sought to use the studio one day in a week without A present. Mr. Smedley observed that Ms. Lakowski did not grasp the seriousness of the comment, Ms. Blokhuis’ experience, or the harm the comment caused her. Despite this, he did not make further inquiries about the complaint with Ms. Lakowski or support her in resolving the complaint. Lastly, the coaching cards were not appropriate in the circumstances, and harmed Ms. Blokhuis.

[135] Mission Possible’s ongoing failure to understand and identify the racist comment reflected their inability to address Ms. Blokhuis’ complaint adequately, seriously, or respectfully. Stated succinctly by the Canadian Human Rights Commission, “Addressing systemic racism begins by being able to understand and identify what it is” and, more importantly, requires action at every level – individual, institutional, and structural: The Canadian Human Rights Commission, Discussion Paper on Systemic Racism at p. 2 and 12 [ CHRC Discussion Paper ]. I find that Mission Possible’s characterization of the comment as a “personal and political view” or a “point of view” to be connected, in part, to Ms. Blokhuis’ race, or rather, Ms. Lakowski’s inability to understand the comment as racist. I also find the harm incurred by the coaching process to have been rooted in an inability to understand that Ms. Blokhuis’ negative reaction to the comment was because of her race.

[136] Mission Possible did not provide Ms. Blokhuis with a healthy discrimination-free environment or communicate its reasons for offering her studio use on alternate Fridays. I find that Mission Possible’s response to Ms. Blokhuis’ complaint had a compounding effect. Each microaggression and harm confirmed Ms. Blokhuis’ eventual conclusion that Mission Possible would not provide her with a discrimination-free environment. It is in this context that she reasonably concluded that the environment was unsafe, that she had no other reasonable choice but to leave the studio, and was effectively banned from the studio. Lastly, I also find that Mission Possible’s communications with her after she left the studio that day remained rooted in the belief that Ms. Blokhuis’ claim of racism was exaggerated. I infer this from Ms. Lakowski’s December texts denouncing Ms. Blokhuis for referring to A as “racist” and for the “nastiness in [her] attitude” when Ms. Blokhuis’ texts read nothing of the sort.

VI REMEDY

[137] Ms. Blokhuis seeks a monetary remedy totaling $7400.

[138] Neither party cited cases to support their position on remedy.

A. Expenses that arose from the contravention of the Code

[139] Under s. 37(2)(d)(ii) of the Code , expenses that arose from the contravention of the Code can be awarded as a remedy.

[140] Ms. Blokhuis asks the Tribunal to award her $2400 for the cost of alternative studio space after she was unable to safely continue using the studio. She submits a price quote from another pottery studio in the area, where the cost of one year of studio use is $2400. She says this remedy addresses her inability to continue using the Mission Possible‘s studio due to discrimination.

[141] Mission Possible argues that there is no basis for Ms. Blokhuis to be awarded the cost of attending a different pottery studio because she was never banned from the studio and remains welcome to this day to attend the studio.

[142] I agree with Mission Possible that there is no basis to award Ms. Blokhuis the cost of attending a different pottery studio, but I do so for different reasons. Ms. Blokhuis has not proved this expense; the price quote is insufficient evidence of her actual losses. Ms. Blokhuis has not concretely established that she accessed another pottery studio, what expenses she incurred for accessing that studio, if any, or what income she lost from not being able to access Mission Possible’s studio. As a result, I decline to order compensation for expenses incurred.

B. Compensation for injury to dignity, feelings and self-respect.

[143] Ms. Blokhuis requests $5000 for compensation for injury to dignity, feelings and self-respect. She felt blamed for making the internal complaint, which hurt her feelings and made her feel devalued. She felt belittled and disrespected as a result of Mission Possible’s response to the internal complaint. Mission Possible’s failure to ensure that she could use the studio at a time separate from A made her feel unsafe and anxious.

[144] Mission Possible argues that if the Tribunal finds that Ms. Blokhuis has been discriminated against and is entitled to compensation, that such amount should be low. They argue that they did not make the racist statement, and that they engaged in a good faith effort to resolve the situation and ensure that the studio was a safe space for Ms. Blokhuis’ participation. They say that as a non-profit organization, a significant award of damages against it will harm its ability to deliver its services to Vancouver’s most vulnerable populations. They submit that an appropriate compensation amount would be $500.

[145] I order Mission Possible to pay Ms. Blokhuis an award of $5000 as damages for injury to her dignity, feelings, and self-respect. I have no difficulty finding that this amount is warranted and, in fact, consider it low in the circumstances. Over 20 years ago, in Ibrahim v. Immigrant Services Society of British Columbia , 2003 BCHRT 1, the Tribunal ordered $2000 compensation in relation to discriminatory comments in services, and awards have increased significantly in that time. I also accept Ms. Blokhuis’ evidence of the impact on her, and, specifically, that Mission Possible’s response to her complaint caused her further harm.

C. Remedial Order

[146] Ms. Blokhuis also seeks an order for Mission Possible to hire a BIPOC led anti-racism consultant to create an anti-racism policy and procedure to prevent any studio users from experiencing racial discrimination in the same way Ms. Blokhuis did.

[147] I decline to make such a prescriptive order. In my decision, I accept Mr. Smedley’s testimony that Mission Possible offered anti-racism training. It was that training that assisted him to recognize A’s comment as harmful, to understand what Ms. Blokhuis had experienced, and to bring his awareness to Ms. Lakowski’s knowledge gap. I acknowledge that my decision around the inadequacy of Mission Possible’s response includes my findings that Mr. Smedley should have been more involved in resolving the complaint. However, insufficient anti-racism training was not the source of this critique, rather, the critique stemmed from Mission Possible’s overall response mechanism. I order Mission Possible to develop an anti-discrimination policy applicable to members and staff, and to provide training or workshops to members and staff on the anti-discrimination policy. Further, I order Mission Possible to develop a proper complaint mechanism consistent with the anti-discrimination policy.

VII CONCLUSION

[148] I find that Mission Possible discriminated against Ms. Blokhuis based on race, contrary to s. 8 of the Code . I make the following orders:

a. I declare that Mission Possible’s conduct was a violation of s. 37(2)(b).

b. I order Mission Possible to stop the contravention and to refrain from committing the same or a similar contravention: s. 37(2)(a).

c. I order Mission Possible to develop an anti-discrimination policy applicable to members and staff, and to provide training or workshops to members and staff on the anti-discrimination policy: s. 37(2)(c).

d. I order Mission Possible to develop a proper complaint mechanism consistent with the anti-discrimination policy: s. 37(2)(c).

e. I order Mission Possible to pay Ms. Blokhuis $5000 as compensation for injury to her dignity, feelings, and self-respect, within three months of this decision: s. 37(d)(iii).

f. I order Mission Possible to pay post-judgment interest on this amount until paid in full, based on the rates set out in the Court Order Interest Act .

Laila Said Alam

Tribunal Member