Worker D v. Well Being Services Ltd., 2026 BCHRT 197
Date Issued: September 15, 2026
File(s): CS-004242
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:
Worker D
COMPLAINANT
AND:
Well Being Services Ltd.
RESPONDENT
REASONS FOR DECISION
Tribunal Member: Ijeamaka Anika
On their own behalf: Worker D
Counsel for the Respondent: Kerem Tirmandi
Date of Hearing: February 3 and 5, 2026
Location of Hearing: Virtual
Closing submissions complete: February 19, 2026
I INTRODUCTION
[1] Well Being Services Ltd. hired Worker D as a full-time Licensed Practical Nurse [LPN] at its long-term care facility and she began work in July 2020.
[2] Worker D is a Filipino woman. She has Bipolar II disorder which she says she disclosed to Well Being Services in October 2020. She alleges that, over the course of her employment, Well Being Services discriminated against her in employment contrary to s. 13 of the Human Rights Code on the grounds of race and mental disability.
[3] In her complaint, Worker D alleges the following:
a. Her supervisor [the Supervisor] engaged in conduct that amounted to bullying and harassment connected to her race and disability.
b. Well Being Services’ handling of her formal complaint of bullying and harassment shows that it did not take her complaint seriously, in particular, that it did not investigate her complaint in a timely and thorough manner because not all of her witnesses were interviewed. Well Being Services’ investigation report stated that the complaint was unsubstantiated.
c. When an Assistant Director of Care [ADOC] position arose at Well Being Services, she did not apply for the position because it required a Registered Nurse [RN] designation, which she did not have. Worker D says that the ADOC position was then restructured to an LPN role and given to a white colleague without being re-posted, depriving her of the chance to apply. Worker D says this is discrimination based on her mental disability and race.
d. She applied and interviewed for an Assisted Living Clinical Manager / Clinical Lead position and was unsuccessful. Worker D says she was denied the position on the pretextual basis that she lacked regulatory experience and was unprepared. She alleges her application was unsuccessful because of her protected characteristics.
[4] I heard this complaint over two days on February 3 and 5, 2026. In that time, I heard evidence from Worker D and her witness, CA (another LPN at Well Being Services at the time of the events in dispute). From Well Being Services, I heard from two Well Being Services employees, TD, the Area Manager at the Well Being Services facility where Worker D was employed, and JH, the Director of Human Resources. Generally, the witnesses testified credibly and there were no significant disputes in their evidence on the material points. I have considered all the parties’ evidence and arguments. Where their accounts diverged, I have resolved the conflict in the analysis that follows. Except where I indicate otherwise, I have accepted the witnesses’ evidence on the material issues.
[5] For the reasons that follow, I dismiss the complaint. On the harassment and investigation claims, I find that the alleged conduct by Worker D’s supervisor and Well Being Services’ response were not connected to Worker D’s race or disability. On the recruitment claims, I am not satisfied that the ADOC role was restructured and filled as Worker D describes, or that Well Being Services’ stated reasons for the Clinical Manager decision were a pretext to not hire Worker D in the role.
[6] The complaint is dismissed.
II PRELIMINARY ISSUE: LIMITING PUBLICATION
[7] Worker D’s name is anonymized in connection with this complaint. In a preliminary application, Worker D asked the Tribunal to limit the publication of her name in connection with this complaint. Worker D argued that the complaint contained her private medical details and she risked professional and personal harm should her identity become known because she lives in a small community with limited LPN jobs. Well Being Services consented to the application. I granted Worker D’s application because I was satisfied that her privacy interests outweighed the public interest in knowing her identity. Therefore, I anonymized Worker D’s name in the complaint proceedings and in this decision.
III BACKGROUND
[8] This background is drawn from the evidence the parties referred to at the hearing.
[9] Well Being Services operates long-term assisted living and seniors’ residential facilities in British Columbia, including the facility where Worker D was employed. TD testified that, at the time of the events giving rise to the complaint, the facility had been placed under administration due to ongoing non-compliance with licensing standards and licensing violations that had not been adequately addressed. As a result, an administrator was appointed and the facility was subject to heightened oversight and scrutiny. According to TD, the administrator was frequently on site and actively involved in administrative operations, which increased pressure on both frontline staff and management. The appointment of the administrator also affected hiring processes, as the administrator participated in recruitment decisions for positions involving leadership responsibilities.
[10] Worker D was offered the LPN position in January 2020 and started work on July 1, 2020, as a full-time LPN.
[11] In October 2020, Worker D says she verbally reported bullying and harassment by the Supervisor and disclosed to her employer that she was diagnosed with bipolar disorder. Worker D testified that she made the verbal report to the Director of Care, the General Manager, and the Interior Health officer in the presence of two other colleagues including CA. Worker D says that around the same time, she noticed her RN supervisor was being extremely rude to her, which severely impacted her mental health. Worker D asked for a meeting with the managers and LPNs without the RN supervisors present so that the LPNs could speak openly about their experiences.
[12] Well Being Services disputes that Worker D disclosed her disability and says that it has no record of a conversation regarding her bipolar diagnosis. At the hearing, Worker D’s evidence on this point was specific. She identified the individuals to whom she made the disclosure including the Director of Care, the General Manager, the Interior Health Officer, CA, another colleague. Well Being Services did not call any of the individuals said to have been present, and its response is the absence of a record rather than a denial by anyone with direct knowledge of the conversation. As stated above, Well Being Services also convened a meeting in November 2020 in response to Worker D’s report, which is consistent with her evidence that she raised concerns with management in October 2020. I accept Worker D’s evidence and find that she disclosed her bipolar disorder to Well Being Services in October 2020. Whether the Supervisor knew of her disability is a separate question, which I address below.
[13] In November 2020, in response to Worker D’s report, Well Being Services convened a meeting of LPNs and managers. Worker D ‘s evidence is that RNs were also present and that, as a result, she and other LPNs did not feel able to raise their concerns about the Supervisor’s conduct at that meeting.
1. Bullying and harassment allegation and investigation
[14] Well Being Services has a Bullying and Harassment in the Workplace Policy [the BH Policy]. The BH Policy establishes a strict zero‑tolerance approach to workplace bullying and harassment and requires all employees to be treated fairly and respectfully. Based on the BH Policy, workers must refrain from bullying, report incidents, and follow company procedures. Managers and supervisors are responsible for preventing bullying, ensuring employees receive training, and protecting those who report concerns from retaliation. The BH Policy outlines reporting options, including alternative contacts, and requires prompt, confidential, and impartial investigations involving interviews and evidence review. Confirmed violations result in disciplinary action up to termination.
[15] At the hearing, TD testified about the employer’s investigation process. She explained that investigation timelines are not fixed and can vary depending on the circumstances. Factors such as scheduling conflicts and whether employees are represented by a union may affect the timing of interviews. TD stated that it may take up to a month to complete witness interviews, although investigations may be concluded more quickly or take longer depending on the nature of the complaint and the availability of witnesses.
[16] TD further testified that investigators interview witnesses who are considered relevant to the issues under investigation, but not all individuals identified as potential witnesses are necessarily interviewed. According to TD, investigations are conducted by assessing the facts and evidence gathered, rather than being based on personalities, personal impressions, or subjective views of the individuals involved.
[17] In December 2020, Worker D filed a formal bullying and harassment complaint regarding the Supervisor’s conduct. The incidents she describes include:
a. Being told, during a wound-care procedure in her first week, words to the effect of “don’t interrupt if you don’t know what you are talking about” and “next time don’t question my scope.”
b. The Supervisor gossiping about her and telling others she was not doing her job; the Supervisor delegating her own duties including doctor’s rounds, assessments, care conferences, to Worker D and then telling others that she (Worker D) was incompetent.
c. The Supervisor’s dismissive treatment of staff concerns (“OK [staff], you’ve been heard”), eye-rolling, walking away mid-conversation, and friendliness toward management but not front-line staff.
d. A remark by the Supervisor overheard in a resident dining area to the effect that “if nine more people die we can close another unit.”
e. Making an insincere inquiry about Worker D’s husband, who was also employed by Well Being Services and was, at the time, the subject of a workplace investigation.
f. The Supervisor’s clinical direction to “snow” (over-sedate) a palliative resident, and to send a resident’s chart to hospital, which Worker D and other staff believed were improper.
[18] According to Worker D, the Supervisor’s conduct was a repeated pattern of behaviour rather than isolated incidents. She stated that these experiences caused her significant stress and anxiety and negatively affected her professional reputation.
[19] Well Being Services investigated Worker D’s complaint between December 2020 and February 2021 in accordance with the BH Policy. It interviewed Worker D, at least two other staff members (on January 15 and February 9, 2021), and the Supervisor (on February 17 – 18, 2021). Worker D says only two of the five witnesses she named in her complaint was interviewed, and that the delay and the outcome show the complaint was not taken seriously. On Well Being Services version of the events, the delay was attributable to the Supervisor being non-unionized which complicated scheduling the interview, the intervening holidays, and the eventual retention of an external investigator.
[20] Well Being Services interviewed Worker D in connection with the investigation on December 21, 2020. The investigation panel consisted of four Well Being Services representatives including TD. During the interview, Worker D told the investigation panel that she felt discriminated against although she did not say why. At the hearing, TD testified that she did not understand discrimination to be the motivation for Worker D’s complaint. According to TD, the nature of the complaint was the Supervisor’s curt, rude, and challenging style of leadership and direction and the interview focused on these concerns.
[21] The parties provided the interview notes at the hearing. During the investigation, one witness stated that the Supervisor had in the past been condescending and had bullied and harassed other employees but felt she was “better now because she is being monitored,” and restated Worker D’s clinical-practice concerns regarding snowing and sending charts to hospital. The second witness described the Supervisor as abrupt and at times rude, confirmed the wound-care and gossip incidents occurred, but did not hear the “nine more people” comment.
[22] In February 2021, Well Being Services interviewed the Supervisor. The Supervisor denied the conduct or characterized it as direct management style, and her account differed from Worker D’s on some points. She acknowledged a problem with Worker D “at first” over wound care, describing it as a correction Worker D questioned, to which she responded that one should not ask about something one does not understand. She said she had asked about Worker D’s husband out of concern. She characterized the delegation of duties Worker D complained of as the function of some of the roles in the team being poorly defined, such that Worker D was sometimes asked to perform various tasks. She stated that she had never been approached about staff perception of her communication style, she was mindful of her body language, and believed she had a good working relationship with Worker D. Based on the evidence of the notes from the Supervisor’s interview, she was not asked about some of Worker D’s allegations such as the “nine more people” remark, the instruction to “snow” a resident, and the direction to send a chart to the hospital.
[23] Well Being Services concluded the workplace investigation in February 2021. By letters dated February 18, 2021, to the Supervisor and March 3, 2021, to Worker D, Well Being Services informed them that the complaint was unsubstantiated. It identified “an opportunity” to guide the Supervisor on communicating directly without being perceived as “curt or belittling.”
2. The ADOC Opportunity
[24] In early December 2020, Well Being Services posted an ADOC position. The ADOC position required an RN designation which Worker D did not have so she did not apply. Worker D says the position was then modified to align with an LPN’s scope of duties – a clinical lead position – and “immediately offered” to CA, who she says had less seniority, without being re-posted as an LPN role, so that Worker D never had an opportunity to apply.
[25] At the hearing, TD testified that the scope of practice of the ADOC role required an RN designation because it involved complex patient care and the delegation of tasks. According to TD, because the facility was under administration, it required education and experience at the RN level which was required particularly for dealing with unstable patients and to supervise a certain number of beds in accordance with health authority regulations. The LPN did not lead other nurses but could lead care aids. Well Being Services did not explain why the ADOC role was offered to CA, who did not hold an RN designation, or why the position was not reposted.
[26] CA testified that she was offered the ADOC role. She did not accept the role and testified that she did not know why it was offered to her and did not know that the role was not being offered to other LPNs. Worker D’s evidence is that she believed the role was offered to CA because of a pre-existing personal relationship between CA and the Administrator at the facility. Well Being Services did not explain why the role was offered to CA or why it was not reposted.
3. The Assisted Living Clinical Lead Position
[27] Well Being Services posted the Assisted Living Clinical Lead position and Worker D applied in January 2021. TD testified that suitability for the role was an important consideration in the hiring process. She explained that the employer was required to provide the selected candidate’s profile to the Assisted Living Registrar for review and confirmation of their suitability for the position. According to TD, this requirement influenced the assessment of candidates and informed decisions about who was considered suitable for the role.
[28] Worker D interviewed for the position on February 1, 2021. She says she was told the panel would include several representatives, but on the day of the interview, the panel consisted of only three individuals: the General Manager, the interim Director of Care, and a human resources representative. Worker D says that the interview panel was unprepared and started roughly 20 minutes late. Worker D felt she interviewed well, drawing on more than 15 years of relevant experience, including a role as a Practice Consultant with a provincial nursing college developing regulatory bulletins, policies, and procedures, and eight years running her own health services business.
[29] Following the interview, Well Being Services informed Worker D of the outcome of the interview. On February 3, 2021, the General Manager emailed to Worker D that while Worker D was not the “appropriate incumbent” for the role, Well Being Services wished to schedule a five-year career goal planning meeting for Worker D. On February 9, 2021, the interim Director of Care formally told Worker D she was unsuccessful and provided feedback. The interim Director of Care told Worker D that she was insufficiently prepared and lacking knowledge of regulatory standards, that the decision was not based on her work performance, and that Well Being Services wanted someone with experience “developing processes, policies and procedures.” Worker D regarded this as an unjustified and pretextual reason, given her background, and says she found this especially unfair given that the panel itself had been unprepared. TD testified that the candidate ultimately selected for the position had extensive experience in the assisted living sector, including working closely with the Assisted Living Registrar, which made them the most qualified applicant for the role.
[30] Worker D says she had been encouraged to apply and recommended by the outgoing Assisted Living Manager; that she later learned there were no other applicants. At the hearing, CA testified that she had been asked to apply for the Assisted Living Clinical Lead position. She did not know Worker D had interviewed for the role until after the fact. CA did not know other candidates who applied or how they may have performed.
4. Worker D’s end of employment and other proceedings
[31] Worker D’s last day worked was February 9, 2021. Worker D describes experiencing acute distress after she was informed on February 9, 2021, that her application to the Assisted Living Clinical Lead position was unsuccessful. She experienced a panic attack and attended hospital on February 13, 2021. Worker D remained an employee of Well Being Services from the time she went on medical leave in February 2021 until her resignation in June 2022.
[32] Following her medical emergency, Worker D filed a union grievance, a workplace injury statement, and a WorkSafeBC claim for a mental disorder. The WorkSafeBC claim was denied on March 11, 2021, and the union grievance was resolved on June 6, 2022.
[33] For completeness, I address Well Being Services’ submission that I am bound by the WorkSafeBC Review Division’s findings under the doctrine of issue estoppel. There are two steps in the test for issue estoppel. First, I must determine whether: (1) the same question has been decided, (2) the decision was final, and (3) the parties or their privies were the same in each proceeding: Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44. If those preconditions are met, I must then determine whether I should use my discretion to apply the doctrine as a matter of fairness and considering the strong policy factors that weigh against re-litigation of the same issues: Danyluk at para. 33; Liu v. Fraser Health Authority and another, 2024 BCHRT 268, at para 36.
[34] The WorkSafeBC proceeding considered whether the reported events constituted a traumatic event or significant work-related stressor for compensation purposes under the Workers Compensation Act. That is not the issue before me under the Code. Further, whether Worker D experienced an adverse impact in her employment connected to her race or mental disability was not decided in the WorkSafeBC proceeding.
IV Analysis and Decision
[35] To prove discrimination under s. 13 of the Code, Worker D must prove, on a balance of probabilities, that: (1) she has the protected characteristics of race and/or mental disability; (2) she experienced an adverse impact in her employment; (3) her mental disability and/or race was a factor in the adverse impact: Moore v. British Columbia (Education), 2012 SCC 61 at para. 33.
[36] I will consider each of Worker D’s allegations separately. I only refer to that information which is necessary for me to reach my decision.
[37] Well Being Services does not dispute that Worker D’s Filipino race is a protected characteristic under the Code. Regarding her mental disability, Well Being Services does not also dispute the diagnosis but says Worker D did not disclose it. I am satisfied on the evidence before me that Worker D has established that she has bipolar disorder, a mental disability within the meaning of the Code. I found about that she disclosed her diagnosis to Well Being Services in October 2020. Whether the Supervisor knew of her disability is a separate question, which I address in my analysis of the Supervisor’s conduct below.
[38] The next issue I must decide is whether Worker D experienced an adverse impact in employment. If I find that she has, I must also decide whether her protected characteristics were a factor in that adverse impact.
[39] I begin by setting out the general principles that apply. I then consider each of the alleged adverse impacts Worker D says she experienced during her employment and whether the adverse impacts were connected to her protected characteristics.
A. General Principles
[40] Discrimination can and usually does take on subtle forms. However, the recognition of the subtlety of prejudice does not transform it into a presumption of prejudice under the Code: Student A v. Institutional Respondent and others, 2017 BCHRT 13 at para. 94. Before the Tribunal can draw an inference of discrimination, a complainant must provide a factual basis for that inference. As the Tribunal stated in Dibah v. Verart and others, 2013 BCHRT 218 at para. 72, quoting Ibrahim v. Intercon Security, 2007 BCHRT 201 para. 80:
A complainant is obliged to provide a factual basis for drawing an inference of discrimination. Without a factual basis, a complainant’s personal conclusion – no matter how sincerely felt – “can only be said to be based on speculation and conjecture, rooted in feelings, suspicions and beliefs.”
[41] Where discrimination is said to be established by inference, the inference must be more probable than the competing non-discriminatory inferences available on the evidence: Jahromi v. Control Solutions and others (No. 2), 2018 BCHRT 2 at para. 45. I keep these principles in mind throughout.
[42] Worker D must prove that her protected characteristics (race or disability) were a factor in Well Being Services’ conduct. She does not need to prove that her protected characteristics were the sole or even overriding factor in the adverse treatment she has experienced: Québec (Commission des droits de la personne et des droits de la jeunesse) v. Bombardier Inc. (Bombardier Aerospace Training Center), 2015 SCC 39 [Bombardier] at para. 52.
[43] Regarding Worker D’s complaint of discrimination based on race, I note that most race-based complaints turn on inference. This is because direct evidence of racial discrimination is rarely available, and such discrimination must often be inferred from the conduct in time: Mezghrani v. Canada Youth Orange Network (CYONI) (No. 2), 2006 BCHRT 60 at para. 28.
[44] Worker D’s subjective perception of racism is not determinative of whether, in fact, race was a factor in the Supervisor’s conduct: Clarke v. City of Vancouver and another, 2024 BCHRT 298 at para. 103; Francis v. BC Ministry of Justice (No. 3), 2019 BCHRT 136 at para. 283. An inference of discrimination must be drawn reasonably and practically from the facts established by the evidence: Smith v. Mohan (No. 2), 2020 BCHRT 52 at para. 188; Clarke at para. 102; Bombardier at para. 88.
B. The RN Supervisor’s conduct
[45] The conduct Worker D describes, including the Supervisor’s persistent belittling, gossip that she was not doing her job, dismissiveness, and off-loading duties for which she was then blamed, caused adverse effects in her work environment. These effects are documented in her complaint to Well Being Services and in the investigation interview notes. On this basis, I am satisfied that Worker D experienced an adverse impact in her employment.
[46] Regarding nexus, I am not persuaded, on the balance of probabilities that the Supervisor’s conduct towards Worker D was connected to Worker D’s race or disability. Worker D’s own evidence characterizes the Supervisor’s conduct as generalized incivility. While she speculates, in her complaint and at the hearing, that the Supervisor behaved in a comparable manner to internationally trained workers, she provides no evidence of this. In her December 21, 2020, investigation interview, Worker D stated that the Supervisor “has issue with everyone,” that “anyone will tell you she is mean and aggressive,” and that the problem affected staff broadly, including other internationally educated care staff. She framed the matter as a “culture” issue, stating that she did not feel the conduct was “out of malice,” and that she “just want[ed] things to change.” Worker D’s December 1, 2020, complaint likewise described the conduct as bullying and a pattern affecting morale and did not attribute it to her race or disability. The other witnesses similarly described the Supervisor as abrupt and rude to staff generally.
[47] Further, at the hearing, Worker D did not point to evidence from which I can infer that the Supervisor’s conduct was connected to her race or disability. She did not allege that the Supervisor made any racial comments, slurs, or engaged in race-based differential treatment. She does not also say that the Supervisor made any references to her disability. Further, while I have found that Worker D disclosed her disability to Well Being Services, the evidence does not establish that the Supervisor knew of it. Rather, on cross-examination, Worker D accepted that the Supervisor’s hostility was not unique to her and agreed that the Supervisor created a difficult environment for employees generally. Worker D also accepted that the specific interactions she relied on were capable of innocent, non-discriminatory explanations, including disagreements over clinical scope of practice, the receipt of direction, and ordinary supervisor–subordinate friction. Worker D accepted that the comments she described contained nothing discriminatory on their face and accepted that her allegation rested on her interpretation of the Supervisor’s tone rather than on what was said. While discrimination need not be overt and the absence of a slur is not decisive, there must be some evidentiary basis from which to infer a connection to a protected ground. I am not satisfied that the evidence before me provides that basis. The Tribunal stated in Dibah, “a complainant’s personal conclusion – no matter how sincerely felt – ‘can only be said to be based on speculation and conjecture, rooted in feelings, suspicions and beliefs’”: para. 72.
[48] I accept that the Supervisor’s conduct was at times harsh, inappropriate, and even unprofessional. However, I am not satisfied, on balance, that the Supervisor’s conduct rises to the level of discrimination as contemplated by the Code. I have considered Worker D’s submission that the conduct worsened after she disclosed health concerns in October 2020. However, I am not satisfied that the Supervisor knew of her disability. The Supervisor was not present when Worker D says she disclosed her disability to Well Being Services, and Worker D has not identified any evidence indicating whether or when the Supervisor later became aware of it. In the circumstances, timing alone does not support an inference that the conduct was disability-related or make that inference more probable than the non-discriminatory explanations on the record. Further, I have considered Worker D’s evidence that the Supervisor “picked favourites.” Even if true, favouritism alone does not establish discrimination. In the absence of evidence linking the alleged favouritism to a protected characteristic, such as race, it does not support an inference of differential treatment prohibited by the Code. Considering the allegations as a whole, I am satisfied that, on a balance of probabilities, the more likely inference is that Worker D experienced difficult and abrasive management, not discrimination contrary to the Code. I therefore dismiss this part of the complaint.
C. The bullying and harassment investigation
[49] My decision that the Supervisor did not discriminate against Worker D does not end the matter. I must also decide whether Well Being Services discriminated against Worker D in how it responded to her complaint about the Supervisor.
[50] Employers have obligations under the Code to respond reasonably and appropriately to complaints of discrimination: Laskowska v. Marineland of Canada Inc., 2005 HRTO 30 at paras. 52-53; Beharrell v. EVL Nursery, 2018 BCHRT 62 at para. 24. An unreasonable or inadequate response may amount to discrimination “regardless of whether the underlying conduct subject to the investigation is found to be discriminatory”: The Employee v. The University and another (No. 2), 2020 BCHRT 12 at para. 272. Some factors the Tribunal may consider are whether the employer has a proper understanding of discrimination, whether the employer treated the allegations seriously and responded sensitively, and whether the complainant was restored to a discrimination-free work environment: Laskowska at para. 59-60, cited in Beharrell at para. 21.
[51] There are two requirements that trigger an employer’s duty to respond under human rights legislation. First, the employer must know there is a complaint or concern, typically because the complainant has communicated one. Second, the complaint must be about a potential violation of the Code: Clarke at para 112; Naidu v. Whitby Mental Health Centre, 2011 HRTO 1279 at para. 191; see also the application of this principle in Martinez Johnson v. Whitewater Concrete Ltd. and others (No.2), 2022 BCHRT 129 at para. 62.
[52] Worker D stated during her investigation interview that she felt discriminated against. She stated as follows:
[the Supervisor] picks and chooses who she seems to report things on or too. She seems to pick favorites, feel that I have been discriminated toward, as there were some things. I feel that fair opportunities do not get applied around for all. I think this is a culture issue, I don’t feel that it is out of Malice, just want things to change. Not fair some get reprimanded and others don’t when dong the same thing.
[As written in original]
[53] Read as a whole, Worker D’s statement raised concerns about favouritism and inconsistent treatment in the workplace. She alleged that the Supervisor played favourites, failed to apply opportunities fairly, and disciplined some employees for conduct that was overlooked in others. She characterized these issues as stemming from workplace culture rather than malice and did not attribute them to her race or disability. Her December 1, 2020, complaint to Well Being Services was consistent with this account. It did not allege discrimination based on race or disability, identify a potential Code violation, or reference racism, her bipolar disorder, or discrimination.
[54] There is no dispute that Well Being Services investigated the bullying and harassment complaint that Worker D did make. However, Worker D argues that Well Being Services ought to have known that her complaint engaged the Code, even if she did not say so expressly. She points to the following surrounding context:
a. She had referred to stress and to health concerns in late 2020.
b. She was the only Filipino nurse in a leadership role at the facility.
c. There had been reports of racism in the surrounding community.
[55] I have considered the surrounding context. However, as the Tribunal explained in Clarke, a general reference to workplace stress does not, without more, signal a disability-related issue engaging the Code, and the fact that an employee belongs to a racialized group does not require an employer to treat every workplace complaint as a complaint of racial discrimination: Clarke at paras. 129-130. Although Worker D used the word “discrimination” during her investigation interview, the question is whether Well Being Services knew, or ought reasonably to have known, that she was raising a potential Code-related concern. I am not satisfied that it did.
[56] I have found that Worker D disclosed her bipolar disorder to Well Being Services in October 2020. Knowledge that an employee has a disability is not, however, the same as notice that a complaint she later makes about a colleague’s conduct is a complaint of discrimination. On their face, Worker D’s allegations concerned interpersonal and management issues, including the Supervisor’s curt manner, workplace gossip, and disagreements regarding clinical tasks. Worker D also described the Supervisor as treating staff generally in the same manner. In these circumstances, I am satisfied that Worker D neither communicated, nor put Well Being Services on reasonable notice of, a complaint engaging the Code. Its duty to respond to a complaint of discrimination was therefore not triggered. It may have been open to Well Being Services to ask Worker D why she felt she was being discriminated against, and in hindsight it may have been preferable to do so, but I am not persuaded that the circumstances required it.
[57] Even if that duty had been triggered, I would dismiss this part of the complaint in any event. Well Being Services investigated the bullying and harassment complaint that Worker D made, concluded that it was unsubstantiated, identified that the Supervisor would benefit from training and monitoring on her interactions with staff, and took steps to implement that training.
[58] For the further reasons that follow, neither the conduct of the investigation nor its outcome amounted to a contravention of the Code. Worker D’s evidence here is that her complaint went unacknowledged for roughly a week, the investigation process was protracted, and her complaint was found to be unsubstantiated after a limited investigation. I am not satisfied, on the balance of probabilities, that the pace of the investigation or the outcome constitutes an adverse impact connected to her protected characteristics. Worker D filed her complaint on December 1, 2020, and was interviewed on December 21, 2020. Further interviews took place in January and February 2021, and the outcome was communicated by letter to the Supervisor and Worker D on February 18, 2021, and March 3, 2021, respectively. While it can be frustrating to await the outcome of the investigation, I am not satisfied that a slow or imperfect investigation constitutes adverse impact. I consider that Worker D’s written complaint was made in December 2020, and shortly afterwards, as JH testified, Well Being Services had to deal with employee schedules including those of non-union employees, and the holidays season. While I accept that Worker D expected a faster pace to the investigations, I am not satisfied that the delay in the investigation constitutes adverse impact. Based on the evidence, the investigation was ongoing, Worker D was interviewed within a month of filing the complaint and knew that the investigation was ongoing rather than stalled.
[59] Regarding the alleged delays in the investigation, there is no evidence from which I could infer that they were connected to Worker D’s race or disability. Absent such evidence, the Tribunal’s role is not to review or second-guess an employer’s operational or workplace decisions. Even if there were shortcomings in the investigation process, or in the way evidence was gathered, those shortcomings would not, by themselves, establish adverse treatment contrary to the Code.
[60] Worker D also says the investigation was inadequate because three of the five witnesses she named were not interviewed. I accept that most of the witnesses she named were not interviewed, and that, on the evidence of the interview notes, the Supervisor was not asked about several of Worker D’s allegations, including the remark overheard in the resident dining area, the direction to “snow” a resident, and the instruction to send a resident’s chart to hospital.
[61] Well Being Services says the evidence it gathered was sufficient to determine the complaint. That evidence consisted of Worker D’s written complaint of December 1, 2022, her interview of December 21, 2020, interviews with two other staff members, and the Supervisor’s own account. The two staff members who were interviewed largely corroborated Worker D’s description of the Supervisor’s manner: one described her as having been condescending and having bullied and harassed other employees in the past, and the second described her as abrupt and at times rude and confirmed the wound-care incident and the gossip.
[62] I accept that a more thorough investigation was available to Well Being Services. However, the question before me is not whether their investigation was perfect. Rather, it is whether Worker D’s race or disability was a factor in how Well Being Services responded to her complaint. Worker D does not say that the witnesses who were not interviewed would have given evidence different from those who were, and she has not identified anything connecting the selection of witnesses, or the questions put to the Supervisor, to her race or disability. I am also not persuaded that a fuller investigation would have assisted Worker D on the issue before me because the evidence that was gathered tended to confirm that the Supervisor treated staff generally in a manner Worker D described. I also note that Well Being Services did not simply dismiss Worker D’s concerns. Although it found the complaint unsubstantiated under its policy, it identified that the Supervisor required guidance on communicating with colleagues without being perceived as curt or belittling and took steps to provide it.
[63] Well Being Services’ explanations for the delay, scheduling challenges, the intervening holidays, and the retention of an external investigator are, on their face, non-discriminatory and logical, and I accept them. There is little in the record connecting the handling of the complaint to Worker D’s race or disability, as opposed to general administrative shortcomings or the difficulty of substantiating a bullying complaint.
[64] For these reasons, I dismiss the complaint of discrimination in the bullying and harassment allegations.
[65] Before I conclude this section, I address Worker D’s submission that Well Being Services owed her a duty to “pause, inquire, and accommodate” her. She says by the time she verbally raised her mental health concerns in October 2020, formally reported stress, feelings of discrimination, and a hostile work environment on December 1, 2020, reported the same concerns during the investigation interview on December 21, 2020, and ultimately required stress leave by February 2021, there was an escalating pattern during which Well Being Services had a duty to pause, inquire, and accommodate her. In Worker D’s view, these events provided repeated indicators of a deteriorating situation and a duty on Well Being Services to pause the process, make further inquiries into her condition, and consider appropriate accommodation.
[66] I have found that Worker D disclosed her bipolar disorder to Well Being Services in October 220. Knowledge that an employee has a disability does not, on its own, give rise to a duty to accommodate. The duty arises when the employer knows, or ought reasonably to have known, of a limitation or need arising from the disability that affects the employee’s ability to perform their work. Worker D did not identify any limitation arising from her disability that required accommodation during her employment, nor any accommodation she sought and was denied. She continued to perform her role and applied for a promotion during the period she describes. The only request she made was for time off on February 12, 2021, after her last day worked, and was supported by medical documentation on February 17, 2021, which Well Being Services accepted. In those circumstances, I am not satisfied that Well Being Services failed to discharge any duty to accommodate that may have arisen.
D. The ADOC opportunity
[67] Worker D did not apply for the ADOC role because, as posted, it required an RN designation she did not hold. During the hearing, TD testified that an RN designation reflects a recognized training, scope of practice, and supervisory authority.
[68] Worker D argues that the ADOC role was restructured into an LPN-scope position and given to CA without being re-posted, thereby denying her the opportunity to compete. It is not disputed that the position as posted required an RN designation, Worker D did not hold that designation, and did not apply for that reason, and that the position was nevertheless offered to CA, who also did not hold it. I do not need to decide whether the role was formally restructured. Taking Worker D’s account at its highest and accepting that she thereby lost an opportunity to compete for the position, the issue is whether her race or mental disability was a factor in that lost opportunity.
[69] Worker D argues that CA is white and she (Worker D) is Filipino, so that an opportunity extended to a white LPN was withheld from a Filipino LPN in the same position. Worker D also testified that the role was offered to CA because of a pre-existing personal relationship between CA and the Administrator at the facility. This is an allegation of personal favouritism arising from a prior relationship. Favouritism arising from a prior relationship is not a ground of discrimination under the Code. Therefore, I am not satisfied that an inference of discrimination based on race or mental disability under the Code can be drawn based on this evidence.
[70] That leaves the comparison between Worker D and CA. As stated above, while discrimination can be established by inference, the inference must be more probable than the competing non-discriminatory inferences available on the evidence: Jahromi at para. 45. I have considered that Well Being Services did not lead evidence explaining why the role was offered to CA or why it was not re-posted, and that an unexplained departure from an employer’s ordinary hiring practices may in some circumstances support an inference of discrimination. Worker D did not, however, point to evidence that race placed any part in hiring decisions at the facility. The role was not offered broadly to any LPA and CA testified that she did not know why it was offered to her or that it was not being offered to others. As stated above, Worker D’s own evidence is that she believed the role was offered to CA because of a pre-existing personal relationship between CA and the Administrator. While this evidence raises some concern about the hiring process, I am not satisfied that an inference of discrimination is more probable than the non-discriminatory explanation. Worker D has not established that, on balance, her race or disability was a factor in the lost opportunity, and I dismiss this part of the complaint.
E. The Assisted Living Clinical Lead opportunity
[71] Worker D was unsuccessful in her application to the Assisted Living Clinical Lead position. I am satisfied that she has met the first two Moore elements: above I found that she established the protected characteristics of race and mental disability, and I am also satisfied that the denial of a workplace opportunity constitutes an adverse impact regarding employment. The claim turns on the third element, and specifically on whether Well Being Services’ stated reason for not offering Worker D the position was genuine or a pretext that masked a connection to race and/or disability.
[72] Well Being Services argues that Worker D was unsuccessful because she lacked regulatory experience. Worker D’s evidence is that this reason is difficult to reconcile with her background: she worked as a Practice Consultant for a provincial nursing college developing regulatory bulletins, policies, and procedures, and ran a regulated health services business for several years.
[73] I agree with Worker D that a stated reason that is contradicted by the complainant’s evident qualifications can support an inference that the real reason for a respondent’s conduct lay elsewhere.
[74] However, I am not persuaded that the stated reason was a pretext. The position was awarded to another candidate who, on TD’s evidence, had greater seniority and more relevant experience than Worker D. Worker D acknowledged on cross-examination that, if the successful candidate were in fact more qualified, she would accept that she was not discriminated against. A disagreement about the relative weight of Worker D’s qualifications is not evidence that race or disability was a factor: an employer is entitled to select the candidate it considers best qualified, and a candidate’s belief that she was better qualified, without more, does not establish discrimination: see Jahromi at paras. 45-48.
[75] Worker D argues that the position remained unfilled for some months and says this contradicts the “more qualified candidate” explanation. Worker D’s evidence on when the position was filled conflicts with TD’s testimony at the hearing that was that another, more qualified, candidate filled the position. In any event, if the position remained vacant for some time, then there was no one, and in particular, no comparator outside Worker D’s protected groups who was preferred over her. On the other hand, if another candidate was appointed, the position was filled by a person TD describes as having more relevant experience in assisted living. Neither possibility supports an inference that Worker D’s protected characteristics were a factor in her unsuccessful application.
[76] The contemporaneous record is also inconsistent with the theory of Worker D’s case. Shortly after the interview, the General Manager recorded internally that, although Worker D was not the appropriate candidate for the role, Well Being Services wished to invest in her future and to schedule a five-year career-planning meeting with her. That is not the conduct of an employer seeking to exclude an employee because of her race or disability. I am not satisfied that the fact that CA was encouraged to apply assists Worker D. The fact Well Being Services encouraged CA to apply for the position does not, without more, show that Worker D’s unsuccessful application was connected to her race or disability.
[77] I have also considered Worker D’s argument that the interview began late and did not complete every section of the scoring tool. I understand this to be a process complaint. An incomplete scoring sheet does not, without more, compel an inference of discrimination, and I decline to draw one here. The absence of complete documentation of a non-discriminatory reason is not affirmative evidence of a discriminatory one, and the burden remains on Worker D to point to some evidence connecting the decision to a protected ground. While there need be no direct evidence of discrimination, feelings of discrimination cannot be the sole basis for the Tribunal to make an inference that discrimination occurred: K.W. v. BC Ministry of Children and Family Development, 2018 BCHRT 219 at para. 59. Here there is no evidence on which I could find that Well Being Services discriminated against Worker D in employment based on her race or mental disability. I only have Worker D’s speculation and argument regarding why she believes she was not offered the Assisted Living Clinical Lead role. This is not enough. Therefore, to the extent that Worker D is asking me to draw an inference of discrimination from the fact that Well Being Services did not offer her the Assisted Living Clinical Lead position from all the evidence, I decline to do so.
[78] Before I conclude, I note Worker D’s argument that the main harm she experienced is the injury to her dignity. This is an argument concerning Worker D’s entitlement to remedies. I accept that Worker D experienced adverse impact regarding her employment with Well Being Services. However, before considering potentially appropriate remedies where there is discrimination, the Tribunal must determine whether discrimination occurred. By arguing that the main harm in this case is injury to dignity, Worker D invites the “remedy tail [to] wag the liability dog”: Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73 at para. 55. In this case, I have considered Well Being Services’ conduct in investigating Worker D’s complaint of bullying and harassment, the Supervisor’s conduct, and the recruitment processes for the ADOC and Assisted Living Clinical Lead positions. I am not satisfied that Well Being Services discriminated against Worker D in employment. As a result, I am unable to consider Worker D’s entitlement to compensation for injury to dignity based on discrimination in employment.
V CONCLUSION
[79] Worker D’s complaint is dismissed under s. 37(1) of the Code.
Ijeamaka Anika
Tribunal Member