Lesnikov v. Anglo American Exploration (Canada) Ltd. (No.2), 2026 BCHRT 178
Date Issued: August 7, 2026
File: CS-003210
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:
Sefika Lesnikov
COMPLAINANT
AND:
Anglo American Exploration (Canada) Ltd.
RESPONDENT
REASONS FOR DECISION
APPLICATION TO ANONYMIZE
APPLICATON TO FILE A SUR-REPLY
APPLICATION TO DISMISS A COMPLAINT
Section 27(1)(d)(ii)
Tribunal Member: Edward Takayanagi
Counsel for the Complainant: Clea Parfitt
Counsel for the Respondent: Richard Press
I INTRODUCTION
[1] Ms. Lesnikov worked for Anglo American Exploration (Canada) Ltd. [AAE] as a geoscience information specialist and data geologist. She alleges she was treated adversely in employment based on her sex and mental disability. In an earlier decision, the Tribunal granted AAE’s application to dismiss the complaint in part: Lesnikov v. Anglo American Exploration (Canada) Ltd., 2024 BCHRT 245 [the “First Decision”]. The remaining allegations are set to proceed to a hearing.
[2] Briefly, the outstanding allegations are that AAE failed to provide Ms. Lesnikov with a safe and harassment-free workplace between 2015 and 2019, during which time she was subjected to repeated instances of sexualized and gender-based harassment by a co-worker. Ms. Lesnikov says as a result of the harassment she developed mental health conditions and had to go on leave in August 2019. She alleges that while she was on leave AAE terminated her employment. She says AAE offered her severance, but she was not given a reasonable opportunity to consider the offer before it expired.
[3] On May 1, 2025, AAE made a with prejudice settlement offer to Ms. Lesnikov to resolve the remaining allegations. AAE advised Ms. Lesnikov that if she rejected the offer, they would seek permission from the Tribunal to bring an application to dismiss under s.27(1)(d)(ii) of the Human Rights Code. Ms. Lesnikov did not accept the offer, and the Tribunal permitted AAE to apply to dismiss the remainder of the complaint under s. 27(1)(d)(ii). AAE argues it would not further the purposes of the Code to proceed to a hearing in circumstances where it made a reasonable offer to settle.
[4] Ms. Lesnikov opposes the dismissal application and argues that AAE’s offer is not reasonable.
[5] For the reasons that follow, I am not persuaded that AAE’s offer is within the reasonable range that the Tribunal might award if it finds Ms. Lesnikov’s complaint to be justified. I deny the request to dismiss the complaint.
[6] To make this 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.
II PRELIMINARY ISSUE: APPLICATION TO ANONYMIZE
[7] Ms. Lesnikov seeks an order to anonymize her name in any publications of the Tribunal and an order that the names of the individual employees and contractors of AAE, past and present, be published in all of the Tribunal’s decisions. Ms. Lesnikov seeks these orders be applied retroactively to anonymize her name and publish the names of AAE’s employees and contractors in the First Decision. AAE does not take a position on Ms. Lesnikov’s application to anonymize her name but opposes the application to publish the names of its employees and contractors. As is already apparent, I have denied Ms. Lesnikov’s application to anonymize. I explain why next.
[8] Complaints at the Tribunal are presumptively public: Mother A obo Child B v. School District C, 2015 BCHRT 64 at para. 7. This openness serves four main goals: maintaining an effective evidentiary process, ensuring that Tribunal members act fairly, promoting public confidence in the Tribunal, and educating the public about the Tribunal’s process and development of the law: Edmonton Journal v. Alberta (Attorney General), [1989] 2 SCR 1326 at para. 61; JY v. Various Waxing Salons, 2019 BCHRT 106 at para. 25. These goals align with the purposes of the Code, which include fostering a more equitable society and identifying and eliminating persistent patterns of inequality: Code, s. 3. The main way that the Tribunal furthers these purposes is through its public decisions: A. v. Famous Players Inc., 2005 BCHRT 432 at para. 14.
[9] The Tribunal has discretion to limit publication of identifying information where a person can show their privacy interests outweigh the public interest in full access to the Tribunal’s proceedings: Tribunal Rules of Practice and Procedure [Rules], Rule 5(6); Stein v. British Columbia (Human Rights Tribunal), 2020 BCSC 70 at para. 64(a). The Tribunal may consider factors like the stage of the proceedings, the nature of the allegations, private detail in the complaint, harm to reputation, or any other potential harm: JY at para. 30. It may also consider whether the proposed limitation relates to only a “sliver” of information that minimally impairs the openness of the proceeding: CS v. British Columbia (Workers’ Compensation Appeal Tribunal), 2019 BCCA 406 at para. 37. It is not enough to just assert that a person’s reputation may be tarnished: Stein at para. 64(c).
[10] In some cases, the fact that it is the party who brought the complaint that seeks anonymization may weigh against granting it: Low v. Mackinnon and Registered Nurses’ Association of BC, 2004 BCHRT 347 at para. 8; Ferri v. Society of Saint Vincent de Paul and another (No. 2), 2017 BCHRT 263 at para. 9. However, which party brings the anonymization application is not determinative.
[11] Here, Ms. Lesnikov argues that her complaint deals with allegations of sexual harassment and a decision on the adequacy of a settlement offer will involve deeply personal information about the impact of the harassment on her health and personal relationships. She says she fears potential stigma, and publication of her name will worsen her mental health.
[12] Ms. Lesnikov also argues it was procedurally unfair for the Tribunal not to identify AAE’s employees and contractors by name in the First Decision when they had not applied for anonymization.
[13] I am not persuaded on the materials that Ms. Lesnikov’s privacy interests outweigh the public interest to merit an order limiting publication. I appreciate that Ms. Lesnikov’s complaint involves her private medical information which she does not desire to share with others. However, I am not convinced that revealing that information may result in harm to her reputation or other potential harm that the Tribunal must safeguard against through an anonymization order. Ms. Lesnikov says she fears someone may hurt her or do something bad to her family but has given no basis for this fear.
[14] The most significant factor in my decision to deny the anonymization application is that the details of the complaint have been in the public domain since the publication of the First Decision in August 2024, over two years ago. The Tribunal’s reasoning in Kandola v. UBC and others (No. 3), 2006 BCHRT 391, is applicable here:
[23] Finally, as stated in Smith v. Tung (No. 3), 2006 BCHRT 217 (para. 8), most applications to the Tribunal under Rule 6(5) are made early on in the proceedings, prior to any preliminary or final decisions being rendered. Here, as in Smith, the situation is quite different. As noted earlier, details of both complaints have been in the public domain for several months.
[24] Even if I were inclined to grant the complainant’s applications, with respect to the previous Tribunal decisions, there is little or nothing the Tribunal can do to retrieve and change the information already in the public domain. This being the case, there is little to be gained by anonymizing future decisions concerning the complaints, as it would not give the complainant the anonymity he seeks.
[15] I also find the Tribunal’s reasons in Francis v. B.C. (Ministry of Justice) (No. 2), 2014 BCHRT 171 instructive:
[10] It is not the Tribunal’s practice to retro-actively anonymize names of parties or participants that are already in the public domain. The Tribunal has a legitimate concern in not using its limited resources to review and determine such retro-active applications which could be innumerable. In my view, such an application would be considered only on an exceptional basis.
[11] Concerns about privacy interests need to be raised at the outset of the complaint process and/or at the time of a first application. It is late in the day to apply for anonymization when a decision which identifies parties and/or participants has already been released. If new information forms the basis of a request to retro-actively anonymize a decision, the application should directly address that topic, preferably with evidence in support.
[16] In my view, it would be of little utility to limit publication at this late stage of proceedings. Even if the Tribunal was inclined to retroactively anonymize Ms. Lesnikov’s name in its decisions, which it is not, the identity of the parties and the allegations are already public: Ng v. City of Vancouver (No. 2), 2024 BCHRT 228 at para. 15.
[17] For the same reason I deny the application to publish the names of AAE’s employees and contractors. It is not the Tribunal’s practice to retroactively edit its published decisions outside of the narrow scope of correcting a technical error: Rule 35. Further, the individual employees and contractors of AAE are not parties to the complaint. The Tribunal regularly exercises its discretion to not name individuals in public decisions where they are not direct parties to the complaint: Patron v. Landmark Cinemas Canada, 2020 BCHRT 127 at para. 9. I also find it unnecessary to refer to the names of the individuals to adjudicate this application or explain my reasons. The Tribunal only sets out as much evidence as is necessary to arrive at a decision: Ms. K v. Deep Creek Store and another, 2021 BCHRT 158 at para. 57.
[18] To be clear, I am not making an order that the names and identifying information of AAE’s individual employees and contractors shall not be published. I am denying Ms. Lesnikov’s application to retroactively publish the names of those individuals. In this decision, I only set out the evidence and information necessary to explain my decision.
III PRELIMINARY ISSUE: APPLICATION TO FILE A SUR-REPLY
[19] After AAE filed a reply to the dismissal application, Ms. Lesnikov brought an application seeking permission to late-file further submissions in sur-reply. AAE consents to an extension of time but opposes the application for a sur-reply.
[20] Generally speaking, the Tribunal’s application process involves three submissions: the application, the response, and the reply: Rule 28(2). The Tribunal may accept further submissions where fairness requires that a party be permitted an opportunity for further submissions: Gichuru v. The Law Society of British Columbia (No. 2), 2006 BCHRT 201, paras. 21-22.
[21] Ms. Lesnikov argues that AAE raised for the first time in its reply to the dismissal application a new argument that because Ms. Lesnikov received a lump sum payment representing lost wages from WorkSafeBC in June 2025, she is not entitled to a wage loss award.
[22] The Tribunal set a submission schedule and AAE filed response submissions on Ms. Lesnikov’s application to file a sur-reply and Ms. Lesnikov filed a reply.
[23] I have reviewed all the materials, and I agree with Ms. Lesnikov that AAE’s reply raises a new issue that requires Ms. Lesnikov to have a fair opportunity to respond and I allow her to do so. While, AAE opposes the application it has not made arguments about whether the sur-reply should be accepted. Instead, AAE’s submissions address the substance of Ms. Lesnikov’s proposed sur-reply. In her reply, Ms. Lesnikov substantively addresses AAE’s response submissions and says she is content with this alternative procedure for making additional submissions. In these circumstances, where the parties have each had a full opportunity to address the arguments made, I find there is no unfairness to either party to consider the sur-reply submissions, the response, and the reply.
IV BACKGROUND
[24] On February 5, 2021, Ms. Lesnikov filed her human rights complaint. Ms. Lesnikov alleges that between 2015 and 2019, an AAE employee harassed her by making unwanted sexualized comments, speaking to her in a disrespectful manner, correcting her English, talking over her at meetings, and yelling at her. She says when she reported the behavior of her coworker, AAE did not take appropriate measures to provide her a safe, harassment free workplace. She says that as a result of the ongoing harassment she developed mental health issues and in August 2019, she went on a sick leave. While she was on sick leave, on August 5, 2020, AAE sent Ms. Lesnikov a letter informing her that, as a result of corporate restructuring, her position would be eliminated, and her employment would be terminated effective September 1, 2020. On September 1, 2020, AAE sent Ms. Lesnikov a termination letter, which included a severance offer. The letter gave her one week to consider the severance offer. Ms. Lesnikov says she was unable to respond to the severance offer because she was recovering from her mental illness and the offer expired on September 8, 2020.
[25] In her complaint Ms. Lesnikov is seeking the following remedies:
a. An order that AAE stop the discrimination.
b. A declaration that the conduct complained of is discriminatory.
c. Compensation for injury to dignity, feelings, and self-respect.
d. Compensation for lost wages or expenses.
e. An order that AAE provide Canada Life with the documents needed to process Ms. Lesnikov’s long-term disability [LTD] claim.
f. An order that AAE issue a record of employment [ROE]
[26] On August 21, 2024, the Tribunal issued a decision on AAE’s first application to dismiss the complaint without a hearing. The Tribunal granted the application in part and dismissed the parts of Ms. Lesnikov’s complaint alleging discrimination related to the LTD and ROE. The balance of the complaint was allowed to move forward.
[27] On May 1, 2025, AAE made a with prejudice offer to settle the complaint on the following terms:
a. A lump sum payment of $90,000 for injury to dignity, feelings, and self-respect.
b. A payment of $10,000 as an ex gratia settlement without any admission of liability.
c. A payment of $1,500 for independent legal advice in connection to the settlement offer.
[28] The offer remains open for acceptance notwithstanding the filing of the application to dismiss the complaint. The offer will expire 14 days following the Tribunal’s decision on the application to dismiss.
[29] Mr. Lesnikov rejected the offer.
V DECISION
[30] AAE argues that it would not further the Code’s purpose to allow the complaint to proceed because it made a reasonable settlement offer: Carter v. Travelex Canada and Travelex UK (No. 3), 2007 BCHRT 275 at paras. 23-25, upheld in 2009 BCCA 180. Ms. Lesnikov says the settlement offer is not reasonable because the amount offered is not within the range of what the Tribunal would likely award if her complaint succeeds.
[31] There are two pre-requisites for the Tribunal to consider dismissing a complaint based on a reasonable settlement offer. First, the settlement offer must be made “with prejudice” because the Tribunal cannot rely on information about settlement discussions that is inadmissible based on privilege: at Dar Santos v. University of British Columbia, 2003 BCHRT 73 para. 64; Carter at para. 25. Second, the offer must remain open for the complainant’s acceptance regardless of the outcome of the application to dismiss: Issa v. Loblaw, 2009 BCHRT 264at para. 35.
[32] Ms. Lesnikov argues that the offer is not made “with prejudice” because it contains a clause that says, “This letter should be considered confidential. It is an express term of [AAE’s] offer that you keep this offer and any resolution arising therefrom confidential.” However, the settlement offer also states that it is made “with prejudice” and remains open for acceptance for “14 calendar days following any decision by the Human Rights Tribunal under section 27(1)(d)(ii) of the Code.”
[33] I am not persuaded that the inclusion of a confidentiality clause negates the “with prejudice” nature of the settlement offer. Parties are free to contract to create obligations to keep the fact of a settlement or its details private from third parties. The “with prejudice” nature of the offer means the offer is not protected by settlement privilege and can be shown to the Tribunal, as AAE has done here. I am satisfied on the face of the offer that it is both made “with prejudice” and remains open for Ms. Lesnikov’s acceptance, satisfying the two prerequisites.
[34] Where the prerequisites are met, the Tribunal engages in a two-step analysis to determine whether it furthers the purposes of the Code to proceed. The first step is to determine whether the offer is reasonable: Dar Santos at para. 59. If it is, the next step is to address whether allowing the complaint to proceed would serve the purposes of the Code.
A. Is the settlement offer reasonable?
[35] In assessing whether an offer is reasonable, the Tribunal assumes that the complainant will prove their allegations. At the same time, the settlement offer does not have to mirror exactly what the Tribunal would order: Carter at para. 30. Rather, the offer must fully address the allegations and provide reasonable remedies, both monetary and non-monetary, that the Tribunal would likely order if the complaint were to proceed to a hearing and be successful: Heitner v. BC Provincial Renal Agency and others (No. 3), 2020 BCHRT 134 at para. 48.
[36] For the following reasons, I find the offer is not reasonable.
[37] AAE’s settlement offer consists of $90,000 for injury to dignity, feelings and self-respect, and $10,000 as an ex gratia amount. The offer does not address Ms. Lesnikov’s claim for wage loss.
[38] Ms. Lesnikov is seeking past wage loss of $293,653.11, which she says represents the difference between what she received from WorkSafeBC and the amount she would have earned as a geologist from August 2019, when she went on leave, to 2025, the date of the settlement offer.
[39] It is well established that the Tribunal has discretion to compensate a person for all, or a part, of any wages lost because of discrimination. The purpose of such an award is to restore a complainant, to the extent possible, to the place that they would have been in had the discrimination not occurred: Gichuru v. The Law Society of British Columbia (No. 9), 2011 BCHRT 185 at para. 300. Once a causal connection is established, the amount of compensation is a matter of discretion, to be exercised on a principled basis, in light of the purposes of the remedial provisions of the Code.
[40] AAE argues that Ms. Lesnikov is not entitled to any award for wage loss for two reasons. First, it says Ms. Lesnikov’s employment would have ended in any event in 2020, when AAE restructured and her position was eliminated. It says that Ms. Lesnikov was off work from August 2019 to September 1, 2020. As such, it argues that Ms. Lesnikov would only be entitled to wage loss for the one-year period when she was off work until the end of her employment.
[41] Because the purpose of a wage loss award is to put a person in the position they would have been in but for the discrimination, generally an award for a period when an employee would not have been able to work due to disability would not be compensable. The exception is where an employee is unable to work due to discrimination causing the disability and inability to work: Neske v. Sobeys Inc. (No.2), 2026 BCHRT 37 at para. 111.
[42] Ms. Lesnikov has provided medical reports from which the Tribunal could conclude that there is a causal connection between the discriminatory harassment and her mental disabilities. The reports also suggest she was disabled to the point that she was unable to work or seek alternate employment after her position was eliminated in 2020. The evidence submitted suggests Ms. Lesnikov remains permanently disabled and unable to work as of 2024, her most recent medical examination before me. In light of this evidence, I am not persuaded by AAE’s argument that Ms. Lesnikov would not be entitled to any wage loss claim were she to succeed at a hearing in proving discrimination. There is evidence from which the Tribunal could find a causal connection between the discrimination and Ms. Lesnikov’s subsequent inability to work.
[43] Second, AAE argues that Ms. Lesnikov has been fully compensated for any wage loss through WorkSafeBC’s disability benefits. They say the evidence shows Ms. Lesnikov received monthly payments from WorkSafeBC and a lump sum payment of $215, 533.58 on June 27, 2025.
[44] While it is undisputed that Ms. Lesnikov received disability benefits from WorkSafeBC the evidence is that those payments were not the full amount of Ms. Lesnikov’s pre-injury earnings. Ms. Lesnikov submitted tax documents showing the difference between her pre-leave income in 2018, and her WorkSafeBC income in subsequent years. The materials support her calculation of the difference in income between 2020 and 2025 of $293, 653.11.
[45] AAE argues that the lump sum payment of $215, 533.58 on June 27, 2025, fully compensates Ms. Lesnikov for the difference in her earnings. Ms. Lesnikov disputes that she received such a lump sum payment.
[46] If the Tribunal found a causal connection between the discrimination and Ms. Lesnikov’s inability to work, it would likely make a deduction based on benefits she has received: Tozer v. British Columbia (Motor Vehicle Branch), 2002 BCHRT 11 at paras. 13-17.
[47] AAE submitted a Cost Claim Report from WorkSafeBC which they say shows a lump sum payment of $215, 533.58 being made on June 27, 2025. Ms. Lesnikov denies receiving such a payment and says the Cost Claim Report shows the total amount that was paid to her as at that date. I have reviewed the documentary material submitted by the parties and it is unclear to me that Ms. Lesnikov received any lump sum payment on that day as AAE asserts.
[48] Even if I were to accept that Ms. Lesnikov received a lump sum payment from WorkSafeBC, based on the evidence the difference between the amount received and her total wage loss is $78,19.53. In my view, this is a significant difference.
[49] Ms. Lesnikov alleges that her termination was discriminatory. She says that her mental disability, her sick leave, and her complaints about harassment were factors in AAE’s decision to eliminate her position. Effectively, she argues that all of her wage loss is related to the alleged contravention.
[50] I appreciate that any award for wage loss is a matter of discretion by the Tribunal, to be exercised on a principled basis, and may be subject to deductions for negative contingencies. However, I am not persuaded that Ms. Lesnikov would not be entitled to any award for wage loss if she succeeded at a hearing. There is evidence from which the Tribunal could find a causal connection between the discrimination and Ms. Lesnikov’s subsequent inability to work, and there is evidence to support the amount she says was lost.
[51] Based on the materials before me I am not persuaded that AAE’s offer which contains no amount for wage loss to be within the reasonable range of what the Tribunal might award.
[52] While a reasonable settlement offer does not need to mirror exactly what the Tribunal might award. In my view, a settlement offer that does not provide anything for lost wages, in light of the evidence before me, does not fall within the reasonable range of what the Tribunal might order if Ms. Lesnikov succeeds at a hearing.
[53] I am not persuaded that it would not further the purposes of the Code to proceed with the complaint in the circumstances. Therefore, I deny the application to dismiss the complaint under s. 27(1)(d)(ii).
VI CONCLUSION
[54] I deny AAE’s application to dismiss the complaint.
[55] I encourage the parties to take advantage of the Tribunal’s mediation services and explore the possibility of resolving this complaint through mutual agreement.
Edward Takayanagi
Tribunal Member