Flannigan v. Cranbrook Skating Club, 2026 BCHRT 236
Date Issued: November 6, 2026
File: CS-005830
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:
Amber Flannigan
COMPLAINANT
AND:
Cranbrook Skating Club
RESPONDENT
REASONS FOR DECISION
Tribunal Member: Devyn Cousineau
Counsel for the Complainant: David D. McWhinnie and Ferris A.I. Vasko
Counsel for the Respondent: Murielle A. Matthews
Date of Hearing: June 16-18, 2026
Location of Hearing: Via Videoconference
I INTRODUCTION
[1] Amber Flannigan is a lifelong figure skater. Now in her 40s, she still enjoys pushing herself and skating at a high level. She is a certified coach. This complaint is about her attempts to find appropriate ice time in Cranbrook.
[2] The Cranbrook Skating Club [Club] is a non-profit society governed by a volunteer Board. It is a member of Skate Canada, the national organization that governs the sport of figure skating. The Club is the only organization in Cranbrook that provides Skate Canada figure skating programming and ice time.
[3] The Club rents the ice from the City of Cranbrook. The City prioritizes youth access to ice over adult access. It does this in part by charging a reduced rate for ice time for youth. In 2019, the Club told Ms. Flannigan that she could not skate during the ice time reserved for high-level figure skaters, because the Club was paying the youth rate and so skaters had to be under 19. Ms. Flannigan protested this decision, and implored the Club to work with the City to provide suitable ice time for adult figure skaters. She was told informally by the City’s Acting Director of Recreation that it would be possible to arrange a small number of adults on youth ice time without affecting the rates. However, the City never formally offered this arrangement and its age-based rates continued in effect.
[4] Between 2019 and 2023, the Club offered little or no ice time for experienced skaters over 19 to figure skate. In this human rights complaint, Ms. Flannigan alleges this was age discrimination, in violation of s. 8 of the Human Rights Code. The Club denies discriminating. It says that it predominantly serves youth. Under its rental contracts with the City, only youth were permitted to skate on youth ice time. Allowing adults would trigger a higher rental rate, which it says it could not afford. It says that it did offer adult skating programs, but sometimes the enrollment numbers were too low for the program to run.
[5] At the same time as Ms. Flannigan was advocating for adult ice time, she was working for the Club as a coach. Ms. Flannigan alleges that the Club punished her for her advocacy by treating her in a hostile manner and restricting her coaching opportunities. On May 30, 2023, the Club received formal notice of her human rights complaint. On June 16, only 18 days later, it refused to renew her coaching contract for the following season. Ms. Flannigan alleges that this was retaliation and age discrimination in her employment, in violation of ss. 13 and 43 of the Code. The Club denies discriminating or retaliating. It says it did not treat Ms. Flannigan negatively. It says it decided not to renew her contract because she had refused to provide sufficient availability, not because she filed a human rights complaint.
[6] I heard this matter over three days. Ms. Flannigan testified, along with her husband Ryan Fleming, and the former Acting Director of Recreation for the City, Paul Heywood. The Club called Christine Malfair, who was the President of the Board between June 2023 and 2025. The Club did not call any witnesses with firsthand knowledge of events in this complaint between 2019 and 2022.
[7] For the reasons that follow, I find that the Club did not discriminate against Ms. Flannigan based on her age when it excluded her from ice time reserved for youth. I further find that the Club did not discriminate against Ms. Flannigan in her employment based on her age, or retaliate against her before she filed her human rights complaint. However, I do find that the Club retaliated against Ms. Flannigan for filing a human rights complaint when it refused to renew her coaching contract in 2023. This was a violation of s. 43 of the Code, and I order remedies.
II PRELIMINARY ISSUE: APPLICATION TO REOPEN HEARING
[8] This hearing concluded on June 18, 2026. The parties made closing arguments that day. Seven days later, on June 25, the Club applied to admit further evidence and make further submissions about its financial records. It says that, after the hearing, Ms. Malfair located two additional pages of financial records that the Club had inadvertently failed to disclose, and which support its defence. It seeks to admit these new documents, as well as other financial records that had been disclosed but not admitted at the hearing, in support of its defence that it would be too expensive to provide adult skating time.
[9] Ms. Flannigan opposes the request. She argues that the Club has not offered a cogent explanation for why it did not disclose or admit the evidence in the hearing. She argues that reopening the hearing would be unfair and unwarranted.
[10] I agree with Ms. Flannigan that the Club has not offered a reasonable explanation for why it did not locate and admit the financial records in the hearing. I appreciate that the Club is run by volunteers, who have other priorities. However, the Club has been represented by legal counsel throughout this process. Its original deadline to disclose arguably relevant documents was July 1, 2024. Given that cost was central to its defence, it was required at that point to disclose financial records relating to that defence. It did not, prompting Ms. Flannigan to apply for disclosure. On February 25, 2025, the Tribunal ordered the Club to disclose “all documents relevant to its claim in 2019 that it could not afford to pay the costs associated with having adults on the ice during times allocated for youth”. By that point – at the latest – it was incumbent on the Club to undertake a diligent search for its relevant records and disclose them. Whatever search Ms. Malfair did after the hearing, prompting her to locate new financial records, should have been done much earlier.
[11] I appreciate that some of the records the Club now seeks to admit were previously disclosed. However, the time to proffer relevant evidence was at the hearing. The parties have long been on notice of the issues in the hearing, the dates of the hearing, and the purpose of the hearing. The Club’s financial circumstances, and the cost of providing adult ice time, was a central issue. The Club, represented by counsel, elected not to proffer any financial records in support of its defence. In her closing argument, Ms. Flannigan argued that I should draw an adverse inference from that election. It was only in response to this argument that the Club now seeks to bring the evidence after the close of hearing.
[12] Respectfully, this is not a basis to reopen the hearing. The time to admit evidence and make arguments was during the hearing: Kim v. Hot Topic, 2023 BCHRT 16 at para. 15. It is neither fair nor efficient to allow a party to reopen a hearing absent exceptional circumstances that are not present here. The application is denied.
III EVENTS GIVING RISE TO COMPLAINT
[13] In this section I set out my findings about the events giving rise to this complaint. To make these findings, I have relied on the evidence given by the witnesses and documents admitted during the hearing. This includes internal Club communications between 2019 and 2022, which were admitted by consent even though no witnesses were called who could testify about them. I have relied on those communications to understand the relevant timeline and some of the factors considered by the Club during the period of this complaint. Overall, I must observe that the parties, especially the Club, presented limited or incomplete evidence. As a result, I have an incomplete understanding of all the relevant facts.
A. The Club
[14] The Club is a non-profit organization that has operated in Cranbrook since 1953. It is a member of Skate Canada, and subject to its rules and bylaws. It is run by a volunteer Board of Directors, most of whom are parents with kids in the skating programs. The Club’s Constitution is not before me, though its bylaws are.
[15] The Club is the exclusive provider of Skate Canada programs in Cranbrook. It offers three Skate Canada programs:
a. CanSkate: learning how to skate in group lessons.
b. STARSkate: figure skating in individual or group lessons. Skaters progress through levels, from “Rising Stars” for beginners and culminating in the “gold” level for the most advanced figure skaters. This is the program that Ms. Flannigan wanted to access.
c. PowerSkate: improving balancing and agility for hockey skating through group lessons.
These programs are designed by Skate Canada to be suitable for all ages. In addition to these programs, the Club offers an “Adult Skate” for adults of all abilities. There are coaches present during Adult Skate.
[16] There are three public ice rinks in Cranbrook: Kinsmen, Memorial, and Western Financial Place. These rinks are managed by the City, which rents them to the Club and other users. Rental and admission fees are governed by the City’s Community Services Fees and Charges Bylaw [Bylaw]. Versions of the Bylaw from 2019, 2023, and 2025 are before me. For the purpose of this complaint, these versions are not materially different. Where necessary, I identify the version of the Bylaw by year.
[17] The City must allocate ice time between hockey programs, figure skating programs (through the Club), public skating programs, and private rentals. In the Bylaw, the City prioritizes use of the rinks as follows:
a. children/youth (under 19),
b. leagues,
c. public/senior citizens/family,
d. adults (19-60 years old), and
e. commercial/private: Bylaw, s. 9.1.
[18] Ice time is allocated based on these priorities. As Ms. Malfair observed, the result of competing demands for ice time is that less prioritized groups may be allocated less optimal times. In her testimony she put it this way: “this is why you see [adult] hockey groups playing at 10:00 at night”.
[19] The Bylaw sets hourly rental fees which differentiate between adult and youth use of the rinks. In keeping with the City’s priorities, the hourly rate for youth is lower than the hourly rate for adults. Adult fees differentiate between prime time and non-prime time. In this complaint, the relevant rental rate is for prime time (3:00 pm – 11:30 pm during the week, and 6 am – 11:30 pm on weekends). In 2019 and 2023, the applicable hourly rental rates were:
| Arena | Adult (2019/2023) | Youth (2019/2023) |
| Kinsmen | $157.50 / $170 | $76.75 / $82.60 |
| Western Financial | $188 / $202.50 | $104.50 / $114.60 |
| Memorial | $188 / $202.50 | $83 / $96 |
[20] There is a dispute in this case about whether the Club could or would allow a few adults to skate during youth ice time, without triggering the adult rate. The 2023 Bylaw is explicit that “For any activity in which User Groups comprise both adults and minors or adults and seniors, the adult fee shall apply”: s. 3.4. This clause was not contained in the 2019 Bylaw; it is not clear why or when it came into effect.
B. Ms. Flannigan
[21] Ms. Flannigan figure skated as a youth at a high level. She came back to figure skating around 2015, now with children of her own. In 2017, she was certified as a coach through Skate Canada. Ms. Flannigan subsequently began coaching the STARSkate programs for the Club.
[22] There are two ways to coach at the Club: (1) as a Club coach, teaching regular lessons for the Club, or (2) as a freelance coach, teaching private lessons on Club ice time. Beginning in 2017, Ms. Flannigan asked for – and was awarded – both freelance and Club coaching contracts.
[23] The period of this complaint is November 2019 until the Club declined to renew Ms. Flannigan’s coaching contract in June 2023. In the following sections, I set out the relevant events by the skating season, which appears to run from approximately September until April each year. There is a fall session (September – December) and a winter session (January – April). None of the program schedules for the relevant skating seasons are before me. Nor are any minutes from Board meetings where the issues in this complaint were discussed, or any of the Club’s rental contracts with the City.
C. 2019 / 2020 season
[24] In fall 2019, for various reasons, Ms. Flannigan found herself with no private coaching clients. She decided to start focusing more on her personal skills development. She identified some Skate Canada tests to practice and qualify for. She began using the STARSkate ice time on Tuesday nights – when she would usually be coaching – to practice her own routines.
[25] In the meantime, the Club Board was investigating whether adults and youth were allowed to figure skate on the ice at the same time. In an email dated August 26, 2019, one Board Member reported that they had spoken to the City and confirmed that adult figure skaters are allowed to be on the ice at the same time as youth, but that the adult rental rate would apply. The writer says that they asked about mixed rate calculations, depending on the proportion of adults and youth, and were told that this would not be possible without a change to the Bylaw. The writer identified two options for adult figure skating: (1) “call one of the youth ice times an ‘adult and youth’ ice time and pay the adult rate”, or (2) pick up additional ice time. There were further Board emails about the issue in October. There was a proposal to allow adults on ice for the first hour of Tuesday STARSkate, so long as “there was a committed booking from adults” to cover the increased cost. In response, two people expressed concern about the safety of youth and adults skating together. No one from the Club testified about these emails or the discussions underlying them.
[26] On November 4, the Club Board met. Ms. Flannigan attended the meeting, but was asked to leave while the Board discussed adults skating on youth ice. Following the meeting, the Board wrote to Ms. Flannigan to tell her that she could not skate on Tuesday evenings. The writer explained, “we are limited with the availability of ice that we can offer adults due to rules that the City has given us”. They suggested that Ms. Flannigan could register for Adult Skate on Sundays.
[27] Ms. Flannigan testified, and I accept, that Adult Skate times are not ideal for the type of skating that she does. Her routines involve jumping, spinning, ice dancing, and skating at “full speed”. Adult Skate has skaters of all levels of experience, who may be unpredictable in their movements and may be intimidated by an experienced figure skater practicing a complex routine. At the same time, however, there are typically fewer skaters on the ice during Adult Skate than a regular public skate. Depending on the rink and the number of people on the ice, Adult Skate can be an opportunity for Ms. Flannigan to practice, even if not ideal.
[28] In the meantime, on November 5, Ms. Flannigan was told that she was not permitted to provide back up coverage for another coach. In her human rights complaint, Ms. Flannigan says that she felt this decision was targeted to punish her.
[29] Ms. Flannigan protested the Board’s decision, and urged the Board to petition the City to change its Bylaw. Board emails suggest that there was a concern that pressing the City on these issues might result in higher rates across the board – including for youth – and that the issue would need to be addressed sensitively. The Board wrote to Ms. Flannigan, asking her not to approach the City on the issue, other than in her capacity as a private citizen.
[30] By this point, however, Ms. Flannigan had already reached out to her friend Paul Heywood, who was then the Acting Director of Recreation. Mr. Heywood assured her that the City would not make an issue of a few adults on the ice during youth skating times. He testified that the City has discretion about how to apply the Bylaw fees and that it was reasonable to allow some adults to skate without triggering the higher fees. In their text exchanges, Mr. Heywood suggested that he would be preparing a written policy to that effect. This policy never materialized. It appears that Mr. Heywood’s description of the City’s discretion was not consistent with the message that the Club got from other staff at the City, namely that “if there are adults on the ice, the adult rate applies, regardless of skill level”: email dated November 24, 2020.
[31] In mid-to-late November, a representative of the Club Board met with someone at the City. Following this meeting, the Club wrote again to Ms. Flannigan to say that, in order to “avoid the real risk of significantly increasing our youth ice fees”, the Club would “not be asking the City to review their ice fee policy”. As a result, adults were only allowed to skate during times specifically designated for adults.
[32] In December 2019, the Club told Ms. Flannigan that it was going to offer a 10-week session of STARSkate for adults. The time was Friday mornings from 6:30-7:30 am. The Club advised Ms. Flannigan that it was “not in a financial position to subsidize this ice, so if we don’t have enough registrants to cover the increased cost of the adult ice, we will be cancelling the time”. Due to her family obligations, Ms. Flannigan was not able to attend during this time.
D. 2020/2021 season
[33] In March 2020, the COVID pandemic hit. The following skating season was complicated by COVID-related restrictions and rules. In fall 2020, only one of the three ice rinks was open.
[34] In her complaint, Ms. Flannigan expressed concern about her photo being removed from the Club website in September 2020. She alleged this was part of a pattern of the Club’s reprisals against her. However, Ms. Flannigan did not seem to pursue this in the hearing and so I do not consider it further.
[35] During this season, Ms. Flannigan asked for a freelance coaching contract, but the Club says that it was not hiring any freelance coaches. The Club later offered her effectively one night to coach in March 2021, before all sessions were cancelled in April. Ms. Flannigan alleges this was retaliatory.
[36] In fall 2020, Ms. Flannigan registered with her son for a new Teen/Adult program. That program did not continue into the winter. In January 2021, the Club cancelled Adult Skate because of COVID protocols impacting adult sports.
E. 2021/2022 season
[37] This season, Ms. Flannigan asked for, and was awarded, a contract for freelance coaching. The Club asked if she would also be interested in Club coaching the CanSkate program, but Ms. Flannigan said she would rather not, unless the program could not run without her. She did not do any Club coaching this season.
[38] At the meeting to sign her contract, Ms. Flannigan again raised the issue of adult access to STARSkate ice. She voiced her view that the Club’s refusal to allow adults to skate was age discrimination. She says that the Club representative told her to put her complaint in writing, which she did. In an email dated August 11, 2021, Ms. Flannigan implored the Board to allow “any interested participant, who meets the prerequisites for the desired Skate Canada program, to be allowed to participate”. She emphasised that the Club was the only skating club in the City, and asked that it “not discriminate between applicants”. She asserted that doing so “goes against the by-laws of the Cranbrook Skating Club, the Skate Canada Code of Ethics, and the Canadian Human Rights Code”. She suggested that any increase in price could be recovered from registration fees. Ms. Flannigan says that, in response to this email, a Board member told her that the Club was not able to financially support more ice time for adults.
[39] Again, the skating schedule for this season is not before me. I understand there was an Adult Skate in the fall. However, the winter session (beginning in January) was cancelled due to low enrollment.
[40] On December 26, 2021, Ms. Flannigan filed this human rights complaint. Because of systemic backlogs at the Human Rights Tribunal, it was not formally served on the Club until May 30, 2023. I return to this below.
F. 2022/2023 season
[41] During this season, the Club sought and received a $2,500 grant to support adult skating. It also made special efforts to advertise and attract adult skaters, including with a press release, radio interview, and social media posts. It is not clear to me what adult skating opportunities were offered this season.
[42] This season, Ms. Flannigan asked for, and was awarded, a contract for freelance and Club coaching. The parties agree that their meeting to sign the contract in August 2022 was tense and uncomfortable. By this point, Ms. Flannigan testified, and I accept, that she was very stressed in her interactions with the Club. She had begun parking at an adjacent parking lot and entering the rear doors at one of the arenas, to avoid accidental encounters. Ms. Flannigan alleges that three specific incidents over the following months were designed to punish and retaliate against her for raising her human rights concerns.
[43] The first incident happened on September 5, 2022, when the Club wrote to Ms. Flannigan to say that her 18-year-old son no longer qualified for the STARSkate program because of his age. Eight days later, on September 13, the Club corrected itself and confirmed that her son could continue until he was 19.
[44] The second incident happened in October 2022, when the Club Board told Ms. Flannigan she could not serve as the “coaches representative” on the Board. Ms. Flannigan says that she had been selected for this role by the other coaches during the previous AGM. However, the Board took the position that the coaches representative should be the head coach employed by the Club, and that Ms. Flannigan could instead be a liaison between coaches and families.
[45] The third incident was in December 2022, in connection with the Club’s annual ice show. The Club declined to pay Ms. Flannigan for her work in choreographing and preparing routines for the show. It explained that only the head coach was paid for this work, and that other contributions were considered voluntary. Ms. Flannigan says that was not fair given the amount of work she put into the show, at the request of the head coach.
[46] The Club first learned that Ms. Flannigan had filed a human rights complaint when it received a letter from her lawyer. The letter is not before me, and there is a discrepancy in the evidence about when the Club received it. Ms. Malfair and Ms. Flannigan testified that the Club received the letter in November 2022. However, on March 27, 2023, the Club’s lawyer said that the Club first learned about the complaint on February 22, 2023. This was set out in a letter from the Club’s lawyer to Ms. Flannigan’s lawyer, which says:
The Cranbrook Skating Club had not heard of your client’s complaint to the BC Human Rights Tribunal upon seeing mention of it in your February 22, 2023 letter. They have never given formal notice of the complaint, nor been asked to make a response to it. Given the passage of time, my client is presuming the file has been closed by the BC Human Rights Tribunal. [emphasis added]
Based on this, I find that the Club became aware of Ms. Flannigan’s human rights complaint on February 22, 2023.
[47] Under Ms. Flannigan’s coaching contract, she was required to advise the Club by February 28 if she wanted to renew her coaching contract for the following season. She did not do so. On March 9, the Board wrote to her, asking about her intentions and advising that it would extend her deadline. Three minutes later, Ms. Flannigan responded that she wanted to request a freelance and Club coaching contract. Her email was nearly identical to the one she had used in years prior to request a contract. For availability, she said, “Days and times to be determined after the ice schedule has been set and I have had a chance to review it”.
[48] On March 27, the Club’s counsel wrote to Ms. Flannigan’s counsel, referring to Ms. Flannigan’s request to renew her coaching contract:
You will see from your client’s response that she has put restrictions as to the terms of any coaching contract that she will enter into. Your client’s conditions as to the coaching contract terms makes it difficult for the Club to meet those conditions. Your client has asked for special privileges not given to other coaches, and we cannot do that.
However, the Club did not respond directly to Ms. Flannigan until nearly three months later.
[49] On May 30, 2023, the Tribunal gave formal notice to the Club that Ms. Flannigan’s human rights complaint was proceeding. Two weeks later, on June 16, the Club wrote to Ms. Flannigan as follows:
The Cranbrook Skating Club board met in May to discuss contract renewals.
This letter is to inform you that the board decided to not renew your contract for the 2023/2024 skating year.
The Board’s decision is not related to, nor a response to any circumstances concerning the Human Rights Complaint you have filed.
We do not have a position for you with the Cranbrook Skating Club in the 2023/2024 season.
[50] The Club did not disclose or introduce any minutes from its May meeting, and Ms. Malfair could not recall anything about their discussion of Ms. Flannigan’s contract. Ms. Flannigan alleges that this refusal to renew her contract was discrimination and retaliation for her human rights complaint.
[51] I turn now to the issues I must decide.
IV AGE DISCRIMINATION IN SERVICES
[52] Section 8 of the Code prohibits age discrimination in services customarily available to the public. To prove her complaint, Ms. Flannigan must prove that the Club denied her a service which it customarily offered to the public, and her age was a factor in that denial: Moore v. BC (Education), 2012 SCC 61 at para. 33. If she does that, then the burden shifts to the Club to provide a bona fide reasonable justification for the denial. This requires the Club to prove that it was applying a standard adopted in good faith, for a purpose rationally connected to its function, and that it took all reasonable and practical steps to accommodate Ms. Flannigan: British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights), 1999 CanLII 646 (SCC) [Grismer] at para. 20. A denial that is justified is not discriminatory.
[53] This case is about Ms. Flannigan’s requests to participate in skating times offered exclusively to youth. In my respectful view, the complaint must fail because the age-based distinction in this case is not discriminatory.
[54] Human rights law has long recognized that “[n]ot every distinction is discriminatory”: McGill University Health Centre (Montreal General Hospital) v. Syndicat des employés de l’Hôpital général de Montréal, 2007 SCC 4 at para. 49. The Code is interpreted and applied purposively, to eliminate historic and systemic barriers preventing full participation by certain groups in public life. To achieve this, the law has rejected the concept of formal equality – treating everyone the same – and embraced the goal of substantive equality, which recognizes that different groups may have different needs: see e.g. Miller v. The Union of British Columbia Performers, 2022 BCCA 358 at paras. 57-58.
[55] The age-based distinction in this case has its origins in the City’s Bylaw, which prioritizes recreational opportunities for children and youth over adults. Young people are an inherently vulnerable group, relative to adults. I find it reasonable to take notice that the City’s priorities reflect broader social interests in supporting the healthy development of young people, by promoting opportunities for physical activity and community engagement. In its closing argument, the Club put it this way: “anything that promotes youth sports is essential”.
[56] In University of British Columbia v. Berg, 1993 CanLII 89,the Court gave two age-based examples of eligibility criteria that were not discriminatory: “tavern service is [not] available to those under the legal drinking age”, and pension benefits are not available to those “who have not yet attained the qualifying age”: paras. 54 and 62. These examples recognize the legitimate, widely-recognized, age-based distinctions that do not challenge substantive equality or engage human rights protections. In my view, they are akin to the age-based distinction in this case.
[57] I agree with the Club that the circumstances here are similar to Shell v. Whistler Mountain Resort and others, 2009 BCHRT 424. In that case, Mr. Shell challenged age-based pricing for student ski passes. The Tribunal dismissed the complaint on the basis that it did not further the purposes of the Code. It observed that mature students over 29 were not “in the context of society as a whole, a group that suffers pre-existing inequality” and that the pricing policy did not rest on any discriminatory assumptions about adults: paras. 21-22. The Tribunal recognized that the pricing policy was premised on some age-based generalizations, but found that “the generalizations are not based on arbitrary or demeaning stereotypes and differential treatment through the discounts does not reflect or promote the notion that older students are less capable or less deserving of respect, and does not demean their dignity”: para. 24. The Tribunal subsequently followed Shell to dismiss another complaint about age-based pricing because it had no reasonable prospect of success: O’Connor v. Whistler Blackcomb Holdings, 2013 BCHRT 133. The same principles underlying these cases support my conclusion here.
[58] In reaching this conclusion, I do not suggest that criteria like stereotyping or arbitrariness are part of the test for proving discrimination. They are not: Stewart v. Elk Valley Corp, 2017 SCC 30 at para. 45. However, they can still operate as indicia of discrimination. Other relevant considerations may include whether a rule or action perpetuates discrimination or disadvantage, or fails to account for the needs or circumstances of a group of people: e.g. Ms. B v. Ministry of Public Safety and Solicitor General (Criminal Records Review Program), 2025 BCHRT 185 at paras. 128-129. Conversely, where distinctions promote substantive equality, they are unlikely to violate the Code: Miller at para. 106. In this case, a skating program targeted to youth does not perpetuate disadvantage or reflect stereotyped thinking about adults. To the contrary, it serves the needs of young people – a group that is vulnerable relative to adults. Drawing an age-based distinction for recreational services does not, in my view, engage the type of discriminatory connection prohibited by human rights law.
[59] In my view, it is open to the Club to provide programs exclusively to youth, without requiring a justification under the Code. As such, Ms. Flannigan’s discrimination complaint cannot succeed.
[60] However, even if I had found the age-based distinction in this case triggered the protection of the Code, I would have found the distinction to be justified.
[61] The Club contracted with the City to provide ice time for youth. I find that allowing adults on the ice would have changed the nature of this contract – at a minimum by triggering a higher rental rate. This is reflected in the official communications between the City and the Club, and the express language of the 2023 Bylaw. It is also consistent with what the City told Ms. Flannigan’s friend in 2020. The friend wrote to the City to ask, “if a class participant over the age of 19 is on the ice at the same time as a participant under the age of 19, does the City of Cranbrook charge any additional insurance or ice rental fee?” In response, a City staff person explained “A youth rate is only when all participants are under the age of 18” (the reference to 18 appears to be a mistake; I understand the writer to mean the age of 19).
[62] This was further confirmed by the City in its communications with Ms. Malfair after Ms. Flannigan’s complaint was filed. In August 2023, Ms. Malfair wrote to the City in her capacity as recently-appointed Board President, asking for “absolute clarity as to what facility rate applies if a Cranbrook Skating Club registered member who is 19 years old and older skated in a program with other skaters of a similar level (mostly youth)” (emphasis in original). In response, the City’s Director of Recreation and Culture confirmed that “the rates are determined by the participants on the ice at the time of the rental”.
[63] The heart of Ms. Flannigan’s case was expressed in a message she wrote to Mr. Heywood in 2020: “My ultimate goal would be to give a small number of adults access to Skate Canada designed skating programs, without the club having their ice rates increased”. While I accept that Mr. Heywood was prepared to make an exception during his temporary tenure as Acting Director, this offer was never formalized or communicated through official channels. In my view, it was reasonable for the Club to rely on the Bylaw, its contract, and its official communications with the City to determine that allowing adults to skate would cost more money. In other words, Ms. Flannigan’s goal was not an option within the Club’s control.
[64] In the unique context of this case, I accept that it would have been undue hardship for the Club to rent ice time at the adult rate to serve the very small number of adults – including Ms. Flannigan – who wanted to skate.
[65] There is no dispute that the Club predominantly serves youth, and very few adult skaters were seeking to skate on STARSKate ice. In its response to the complaint, the Club said, “Adult skaters make up about 0.099% of the total skaters in the Cranbrook Skating Club, and they receive about 0.06% of the total booked skating time.” I do not understand these numbers to be in dispute, though the Club did not introduce any evidence to substantiate them. There is no dispute that the Club had to cancel several of its intended adult programs because of low enrollment, notwithstanding its efforts to attract more adult skaters. Ms. Malfair testified, and I accept, that Adult Skate always runs at a deficit. Of the adults who participate in Club skating programs, only up to four were interested in STARSkate ice. This was Ms. Flannigan’s own estimate, responding to Mr. Heywood in 2019:
2 adults is the most likely / usual number. Some times there are zero adults and one crazy year we had 4 adults. But the year we had 4 was very unusual.
[66] Making STARSkate ice available to adults would have added significant expense for the Club. The Club is a non-profit organization. It relies on grants, fundraising, and fees to cover its expenses. Ms. Malfair testified that in 2022, the Club had a “profit” of $3,900, which included a $2,500 grant for adult programs. Though its financial records are not before me, I accept that it has limited funds. Here I decline to draw an adverse inference from the Club’s failure to introduce financial records. I think it is improbable that those records would show that the Club in fact had extra money; it is more likely that the Club’s litigation resources were limited and this was overlooked.
[67] The difference in renting ice for youth and adult skating is significant. During the period of this complaint, the difference at prime time ranged from $80.75 to $87.40 at Kinsmen, $104 to $106.50 at Memorial, and $83.50 to $87.90 at Western Financial.[1] In 2019, it appears that the Club offered 14 hours of youth Skate Canada programming per week. To allow adults on the ice at this time, at the increased rate, would increase the Club’s costs by between $1,130.50-$1,470 per week. Adding even four hours of adult ice time per week would have increased the Club’s weekly expenses by $323-$420 in 2019, and $349.60-$426 in 2023. The Club would need to find some way to cover this added expense.
[68] Ms. Flannigan argues that the Club could have taken reasonable and practical steps to cover the added costs. Respectfully, I disagree.
[69] It is possible, as Ms. Flannigan argues, that part of the added costs could be covered by further fundraising or grants. But based on the evidence before me, that is purely speculative. It is more likely, in my view, that the difference in rental fees would have to be recovered by raising registration fees for all participants. In my respectful view, requiring the Club to raise registration fees and search for other sources of revenue to serve up to four adults would amount to undue hardship for a non-profit organization fully reliant on volunteers.
[70] I stress that this outcome is grounded in the specific issues, and the social context, of this case. The outcome may be different, for example, where the issue is accommodating people with disabilities who have historically faced barriers to recreational activities. What is reasonable to accommodate disability-related needs may not be reasonable to accommodate access for adults – a group that has not faced the type of disadvantage the Code seeks to remedy. In this case, I am satisfied that the Club made reasonable efforts to provide ice time for adults. Where there was insufficient enrolment to run the program, it was cancelled. I am not persuaded that the Code required the Club to go any further in its efforts to provide programming for adults.
[71] This part of the complaint is dismissed.
V EMPLOYMENT DISCRIMINATION
[72] During the period of the complaint, Ms. Flannigan contracted with the Club to do freelance and/or Club coaching. She alleges that, throughout this period, the Club treated her adversely because of her age, in violation of s. 13 of the Code. To prove this allegation, Ms. Flannigan must prove that her age was a factor in any employment-related adverse treatment: Moore at para. 33.
[73] The Club argues, first, that Ms. Flannigan was not an employee for the purpose of s. 13 of the Code. In reply, Ms. Flannigan refers to her annual contracts and evokes the Code’s broad jurisdiction.
[74] Neither party made submissions about the control/dependency test for employment under the Code: McCormick v. Fasken Martineau DuMoulin LLP, 2014 SCC 39 at para. 23. It seems to me that there may be a difference between Ms. Flannigan’ work as a Club coach – which was controlled entirely by the Club – and as a freelance coach, with independent clients. However, in my view I do not have to decide this issue.
[75] The evidence does not support that Ms. Flannigan’s age was a factor in any of the Club’s conduct toward her during the period of the complaint. Accepting for the moment that the Club treated Ms. Flannigan negatively in her employment because of her advocacy for adult ice, this is insufficient to establish a connection between that negative treatment and Ms. Flannigan’s age. There is no evidence – by inference or otherwise – that Ms. Flannigan’s age (in her 40s) was a factor in how the Club treated her during the period of this complaint. I dismiss the allegation of employment discrimination under s. 13 of the Code.
VI RETALIATION
[76] Section 43 of the Code protects people from retaliation because they make, or might make, a human rights complaint. Its protection aims to create safe conditions for people to bring forward issues of discrimination: Talkkari v. City of Burnaby and others, 2005 BCHRT 68 at para. 29. This protection is vital to fulfilling the purposes of the Code.
[77] Section 43 does not regulate all unpleasant interactions between people, even if those interactions may bear some connection with a human rights complaint. Rather, it prohibits “significantly prejudicial conduct and consequences, including consequences which threaten a person’s access to those areas of social life which the Code aims to protect, including their livelihood, housing, and public benefits and services”: Birchall v. BCS 61 Strata Corporation and another, 2018 BCHRT 29 at para. 63. The types of conduct prohibited by s. 43 find “commonality in their severity”: Birchall at para. 63.
[78] To prove this part of her complaint, Ms. Flannigan must prove:
a. The Club was aware that she made or might make a complaint;
b. The Club evicted, discharged, suspended, expelled, intimidated, coerced, imposed a penalty on, denied a right or benefit to, or otherwise adversely treated her; and
c. The Club intended to engage in that conduct or can reasonably have been perceived to have engaged in that conduct in retaliation, with the element of reasonable perception being assessed from the point of view of a reasonable complainant.
Gichuru v Pallai, 2018 BCCA 78 [Pallai] at para. 58
[79] In the following sections, I consider Ms. Flannigan’s allegations of retaliation under two broad headings: non-coaching related allegations, and coaching-related allegations. I find that the non-coaching related allegations do not relate to the type of conduct prohibited by s. 43. I find that the coaching-related allegations do engage the type of conduct prohibited by s. 43. However, with one exception, I find that the Club did not intend to retaliate against Ms. Flannigan.
A. Non-coaching related allegations
[80] Ms. Flannigan argues that the Club retaliated against her by:
a. “attempting to limit her access” – which I take to mean her access to ice time;
b. attempting to discourage direct communication between Ms. Flannigan and the City in 2019; and
c. generally treating Ms. Flannigan in a hostile fashion.
[81] For the purpose of this decision, I will assume that the Club knew that Ms. Flannigan might file a human rights complaint when these issues arose. However, I am not persuaded that any of this conduct was of the type prohibited by s. 43.
1. Limiting access to ice
[82] I accept that the Club limited Ms. Flannigan’s access to youth ice. However, I have found that these limits were because, as an adult, she was not eligible for youth programming. There is no evidence to support – by inference or otherwise – that these limits were to retaliate against Ms. Flannigan because she might file a human rights complaint.
[83] To the extent Ms. Flannigan argues that the Club was retaliating against her in September 2022 when it wrote to say that her son was no longer eligible for STARSkate programming, I am not persuaded. The error was corrected within eight days, with an apology. I accept that this was distressing to Ms. Flannigan, in the context of ongoing tension with the Club. However, this is not the type of significantly prejudicial conduct prohibited by s. 43.
2. Controlling communications with the City
[84] I am not persuaded that the Club’s efforts to control the lines of communication between the Club and the City were retaliatory against Ms. Flannigan. At the relevant time, Ms. Flannigan was not on the Club Board and had no formal role within the organization. In that context, the Club wrote to her as follows:
We would appreciate that you NOT approach the city in anyway about adult ice time and youth ice time. If you do so, you would be doing that as a private citizen, not in any way on behalf of the Cranbrook Skating Club. If the club decides to approach the city then it will be done after the board has an opportunity to dedicate time and resources and decide how to proceed. We appreciate the offer but we have already had a few discussions with the city, and the issue is a sensitive one. [bold emphasis added]
In my view, this was reasonable. It reflected that Ms. Flannigan was not a representative of the Club, and that any discussions about the Club’s contract with the City should happen between the Club and the City, and not a third party. It is not intimidating or coercive, and did not deprive Ms. Flannigan of a right or benefit. Again, I appreciate that it was distressing for Ms. Flannigan and that she may have been well positioned to negotiate with the City. However, I am not persuaded that by insisting that discussions happen along formal channels, the Club was engaged in the type of conduct prohibited by s. 43.
3. Hostile treatment
[85] I accept that the relationship between Ms. Flannigan and some members of the Club was strained. Ms. Flannigan and Mr. Fleming both testified about “tense” interactions during the 2022 contract signing and the 2021/2022 AGM. Ms. Flannigan testified that some Board members did not try to hide the fact that they disliked her, including by turning their backs on her, frowning at her, and refusing to answer her questions. From Ms. Malfair’s perspective, Ms. Flannigan gave off an unfriendly demeanour and seemed to keep to herself. Ms. Malfair described the situation with Ms. Flannigan as “a lot of drama”. It is reasonable to infer that at least part of the reason for this tension was the conflict between Ms. Flannigan and the Club about adult access to STARSkate ice.
[86] However, Ms. Flannigan has not pointed to any specific “hostile” actions of the Club that engage the protections of s. 43. The Code does not require people to get along during a human rights-related dispute. Based on the evidence before me, the tension between the parties flowed two ways. Ms. Flannigan was frustrated with the Club over the ice time and other issues, and the Club may have been frustrated with her. However, I do note that all of the Club’s email communications to Ms. Flannigan were cordial, professional, and in some cases overtly conciliatory. The evidence does not support that any hostility between the parties rose to the level that should trigger the intervention of this Tribunal.
[87] These allegations of retaliation are dismissed.
B. Coaching-related allegations
[88] Ms. Flannigan alleges that, between 2019 and 2023, the Club imposed restrictions on her coaching in retaliation for raising her allegations of age discrimination. In her evidence she put it this way:
Every year, and every time that I asked for accommodation for adult skaters, the Board used my employment as a weapon against me. It was a recurring pattern. If I asked for accommodation, my employment would be restricted in some way.
[89] For the purpose of my analysis, I will assume that, between November 2019 and February 2023, the Club knew that Ms. Flannigan might make a human rights complaint. During this period, she told the Club that she thought its refusal to allow adults on STARSkate ice was age discrimination. This raises at least the possibility that Ms. Flannigan might seek to file a human rights complaint. After February 22, 2023, the Club knew that Ms. Flannigan had filed a human rights complaint. And, on May 30, 2023, the Club learned that the human rights complaint was proceeding.
[90] Ms. Flannigan’s coaching related allegations each relate to restrictions on her coaching – whether by denying her coaching opportunities or payment, refusing to allow her to serve as a coaches representative on the Board, or refusing to renew her contract. I am satisfied that these restrictions, if proven, would fall within the type of conduct prohibited by s. 43 – namely, imposing a penalty or denying a right or benefit.
[91] Ms. Flannigan’s coaching allegations turn on whether the Club took the impugned actions “because” Ms. Flannigan had filed, or might file a human rights complaint. I accept that Ms. Flannigan perceived that the Club was retaliating against her. However, this is not enough. Section 43 does not protect people from “the perception of retaliation”: Pallai at para. 54.
[92] Ms. Flannigan must prove a sufficient connection between negative action by the Club and a human rights complaint. Unlike the discrimination analysis that applies to other sections of the Code, the legal test is not whether a human rights complaint is “a factor” in the conduct: Gichuru v. Pallai, 2012 BCHRT 327 at paras. 76-90, upheld by the BCCA in Pallai. The connection must be “sufficient” to prove or infer retaliation: Pallai at para. 54. The connection can be proven by direct evidence that the Club intended to retaliate. However, respondents rarely announce an intention to retaliate, and there is no direct evidence in this case that the Club was retaliating against Ms. Flannigan. Rather, as in most cases, the connection in this case must be inferred: C.S.W.U. Local 1611 v. SELI Canada (No. 3), 2007 BCHRT 423 at para. 17. An inference of retaliation may be drawn where a reasonable complainant, apprised of all the facts, would reasonably perceive the respondent engaged in the conduct in retaliation: Pallai at para. 58.
[93] I turn now to each of Ms. Flannigan’s specific allegations.
1. Backup coaching (2019)
[94] In November 2019, at the same time as she was engaging with the Club about adult skating, Ms. Flannigan was told that she could not provide backup coaching for another Club coach. In her closing argument, she argues that “the backup coach position in her contract was taken away without explanation”.
[95] Ms. Flannigan’s contract from 2019 is not before me. I understand that, during this season, her contract was exclusively for freelance coaching. This is reflected in the text message that Ms. Flannigan received from the other coach, which read: “The club also emailed me this morning letting me know that because you’re a freelance coach you wouldn’t be able to cover my Sunday group lesson”. In response, Ms. Flannigan said, “If my freelance contract does not allow me to freelance coach a group session, then why did it have a section that I had to fill in stating how much I charge for group sessions? That should have been eliminated if not allowed”. Based on this exchange, it seems likely that Ms. Flannigan’s contract did not expressly address backup coaching, but she had inferred she was permitted to backup coach based on the reference to group rates and prior practice. In that regard, Ms. Flannigan testified that she had been doing backup coaching in 2017 and 2018 without issue.
[96] Ms. Flannigan argues that the timing of the Club’s decision – shortly after she began advocating for adult access to ice time – supports an inference of retaliation. Respectfully, I am not persuaded that this timing, on its own, is enough to support an inference. Specifically, it does not appear that backup coaching was in Ms. Flannigan’s contract. And, aside from Ms. Flannigan’s comment that she had previously been permitted to backup coach, there is no evidence about those circumstances – including how it was arranged, how frequently it occurred, and whether she was a freelance or Club coach at the time. There was no direct communication between the Club and Ms. Flannigan about the issue. A reasonable complainant, apprised of these limited circumstances, would not conclude that the Club prohibited Ms. Flannigan from backup coaching in retaliation.
[97] This allegation is dismissed.
2. Refusal of freelance coaching contract (2020)
[98] In 2020, Ms. Flannigan was seeking a freelance coaching contract with the Club. The Club told her it was not offering freelance coaching contracts because of COVID-related restrictions and challenges. Ms. Flannigan alleges that this was retaliation for the prospect that she might file a human rights complaint. Respectfully, I am not persuaded that a reasonable complainant, apprised of all the facts, would perceive that the Club intended to retaliate against Ms. Flannigan.
[99] The undisputed evidence before me is that the Club’s operations this season were significantly impacted by complex and changing COVID restrictions. This affected which rinks were open, how many people could use the ice, and who could use the ice as between adults and youth.
[100] Importantly, Ms. Flannigan was seeking a freelance coaching contract this season. The Club determined it would not be offering freelance coaching contracts until certain restrictions were lifted. This is reflected in email communications between Ms. Flannigan and the Club in the fall 2020.
[101] On September 6, 2020, the Club wrote to Ms. Flannigan setting out several of the uncertainties it was facing and explaining: “At this time we are unsure what our freelance coaching will look like since the number of skater/coaches is limited … This has not been anything personal it has just been a different year due to the pandemic”. Ms. Flannigan pressed the issue, and the Club reiterated: “sadly we cannot take on any freelance coaches at this time. We are currently working on discussions with a potential new head coach as we do not have a head coach this year. We are unsure as to when/if they will take on that role…. The board is working very hard to find the best possible solution for the club”. Ms. Flannigan asked, “if COVID magically resolves itself, will I be allowed to return as a freelance coach or am I being told I may never return?” In response, the President offered more information about the various considerations and confirmed “You are [definitely] not being told you cannot return! We would love to support free lance coaching it is just unknown when we will be able to do so! Strange times we are living in”. In October, Ms. Flannigan wrote to the Club again to ask if she could be permitted to coach her son. In response, the Club wrote to explain:
We are still not offering freelance coaching spots as our numbers still fluctuate from day to day. We understand how frustrating this can be. Even aside from coaching and skaters we are struggling to get our usual ice so it has been a challenge this year…
[102] In February 2021, Ms. Flannigan wrote to the Club after noticing that skating had resumed at Western Financial. She asked if she could freelance coach on Tuesday nights. The Club said yes. However, due to the timing, this effectively only left one night for Ms. Flannigan to coach in the season. Ms. Flannigan was upset that the Club had not contacted her earlier in the season about the option to resume freelance coaching at Western Financial.
[103] Ms. Flannigan testified that, at the same time as it was denying her a contract, the Club hired another coach who did not appear to have the same level of qualifications as her. She argues that this supports an inference that the Club was retaliating against her. Respectfully, I disagree.
[104] Critically, there is no evidence before me about whether the other coach was hired as a Club coach or freelance coach. This is necessary for any comparison with Ms. Flannigan.
[105] The rest of the circumstances do not support an inference of retaliation. Throughout the fall, the Club communicated openly with Ms. Flannigan about the challenges it was facing and the reasons it was not offering freelance coaching contracts. The tone of the communications is friendly, and the Club reassured Ms. Flannigan that she would be welcome back when it returned to freelance coaching. I appreciate that the Club did not proactively reach out to Ms. Flannigan when Western Financial reopened to offer her a contract. But when Ms. Flannigan followed up in the spring, the Board voted to approve her contract.
[106] In my view, a reasonable complainant apprised of these facts would not conclude that the Club refused Ms. Flannigan a freelance coaching contact this season in retaliation.
3. Restrictions on coaching contracts (2021-2022)
[107] Ms. Flannigan alleges that, beginning the 2021/2022 season, the Club placed new restriction on her coaching contracts. She testified that, in prior years, the Club would give her access to all STARSkate ice for freelance coaching. However, in 2021, the Club required her to identify specific days and times when she would be coaching. She says this was then written into her contract, when it had not been in years prior. She testified that she did not know why the Club made this decision. I understand that she says that other coaches did not face this same restriction, though there is no evidence before me about other coaches’ circumstances or contracts.
[108] Ms. Flannigan’s communications with the Club on this issue are set out in emails. On July 9, 2021, the Club President sent Ms. Flannigan the schedule for the following season and asked her to let them know what days Ms. Flannigan wanted to coach. Ms. Flannigan responded:
Perhaps there was some confusion along the way. I’ve never had a restricted schedule in previous years, then last year I was not permitted to coach and was told that perhaps I could coach if the club secured Tuesday night ice. That was when the whole Tuesday night of skating started getting mentioned and it sounded like I was being restricted to only one night of coaching. I would of course prefer it if we returned to the old contract method where I was offered the opportunity to coach on STARSkate ice as opposed to only one night, or this night + that night etc. That opening up of all STARSkate times allows for flexibility…
The President responded: “Yes, if you could get me the days you can/would like to coach that would be helpful for us. That way our skaters will be able to plan lessons with appropriate coaches ahead of time”. Ms. Flannigan then indicated which sessions she wanted to coach, reiterating her preference for the “old contract method”.
[109] Again, I am not satisfied that these circumstances support an inference of retaliation. The Club did not restrict Ms. Flannigan’s ability to choose which days she coached; it merely required her to provide advance notice. I appreciate this was a change from previous seasons, but the Club’s explanation makes sense: to provide some certainty for skaters. At the same time, on July 13, the Club offered Ms. Flannigan the additional opportunity to coach CanSkate on Wednesday nights. Ms. Flannigan turned it down. The fact that another coach may have had a different arrangement is not enough to support an inference of retaliation. Importantly, there is no evidence before me about whether the other coach was a Club or freelance coach, or what their relationship was with the Club.
[110] I am not persuaded there is a sufficient connection between this change to the Club’s practice of allowing Ms. Flannigan access to any STARSkate ice time, and the prospect that she might file a human rights complaint. This allegation is dismissed.
4. Coaches representative (October 2022)
[111] In spring 2022, Ms. Flannigan says she was selected by the group of coaches at the AGM to be the “coaches representative” on the Board. Under the Club’s Bylaws, this role is described as follows:
6.16 Coaches representative
Those coaches who are Non-Voting Members of the Club will, at or prior to each annual general meeting, collectively appointment, by form of appointment in writing and signed by all such coaches, one of their number to be the coaches representative, which position will be a voting Director on the Board.
[112] On October 8, 2022, Ms. Flannigan wrote to the Club to ask when the first Board meeting was so she could attend as the coaches representative. In response, the Board wrote:
Reviewing the AGM minutes shows that you were voted in as coach liaison not coach representative. Your role would be between skating families and skaters to coaches.
Our head coach maintains the board attending coach representative position as per her contract.
[113] Neither the AGM minutes nor the head coach contract are before me. There is no document, signed by the coaches, affirming they selected Ms. Flannigan as their representative, as contemplated by the Club’s bylaw. Ms. Flannigan testified that the head coach later told her that the Board told her that it made more sense for the head coach to be the representative, and wrote it in her contract. The head coach did not testify and I am not persuaded that this hearsay and double hearsay is sufficiently reliable to put any weight on it.
[114] Despite the paucity of evidence, I accept Ms. Flannigan’s testimony that she was selected by the coaches to be their representative on the Board. I accept that it is strange that the Club then told her she could not serve in this role, and that the likely reason is that the Club did not want Ms. Flannigan to have a voting role on the Board. However, I am not persuaded that the evidence would lead a reasonable complainant to infer that the reason for this decision was to retaliate against Ms. Flannigan for the possibility she might file a human rights complaint.
[115] There is no evidence before me about who made the decision about Ms. Flannigan, and what they specifically knew about the prospect she might file a human rights complaint. I appreciate that Ms. Flannigan’s advocacy for adult skaters was, generally, a source of tension. It is possible the Club did not want her to have a vote on the Board because it opposed her views about adult skaters on youth ice. However, this is a distinct issue from whether Ms. Flannigan was likely to file a human rights complaint. It would be pure speculation to conclude that the prospect of a human rights complaint was driving the Club’s decision. Speculation is not enough.
[116] This allegation is dismissed.
5. Ice show (December 2022)
[117] In December 2022, Ms. Flannigan was invited by the Club’s head coach to help with preparations for the annual ice show. Ms. Flannigan understood that she would be paid for this work. However, she did not communicate directly with the Club or enter into a contract for this work. She was later told she would not be paid. She alleges this was retaliation. Again, I am not persuaded.
[118] The Club had never agreed to pay Ms. Flannigan for this work before she did it. There is no evidence that the Club had previously paid Ms. Flannigan or any other freelance coach for their contributions to the ice show. Rather, I understand that Ms. Flannigan believed that she would be paid based on a discussion with the other coach. On December 13, 2022, Ms. Flannigan wrote to the Board President advising that she would be “submitting an invoice for some of my time”. The President responded:
Amber- we do not have an ice show contract with you, nor has one been requested or discussed prior to the ice show. We do not require 3 coaches on ice.
As per your previous email you have offered your time, and your families, as a volunteer in various capacities as many other skating families have. What you have offered as a volunteer is much appreciated. [as written]
[119] Ms. Flannigan expressed surprise that she would not be paid. She says she had been led to understand that the Board was working on coaches’ ice show contracts. She then asked for clarification about whether she was allowed to be on the ice at all during the show, including to help the young skaters. She specifically asked to be permitted to be on the ice for one routine involving kids as young as two. In response, the President wrote:
Hi Amber- the Board has discussed your request. They have chosen to keep things as the club has done in previous years and not have coaches on ice with the skaters, just PAs, unless it is their own performance (ie adult skate).
This evidence suggests that the Club was following its practice from previous years. There is no evidence before me to suggest otherwise.
[120] The evidence does not support an inference that the Club refused to pay Ms. Flannigan for her work on the 2022 ice show because she might file a human rights complaint. This allegation is dismissed.
6. Refusal to contract (2023)
[121] Ms. Flannigan contracted with the Club for five seasons to provide freelance and/or Club coaching (2017/18, 2018/19, 2019/20, 2021/22, and 2022/23). In June 2023, the Club refused to renew its coaching contract with Ms. Flannigan. The Club says this was because Ms. Flannigan failed to provide her specific coaching availability. Ms. Flannigan alleges that this was retaliation for her human rights complaint. I agree with Ms. Flannigan.
[122] Three factors support an inference of retaliation: (1) the timing, (2) the Club’s unpersuasive explanation, and (3) the Club’s explicit references to the human rights complaint in its communications about the issue.
[123] I begin with the timing. Above I found that the Club first learned that Ms. Flannigan had filed a human rights complaint on February 22, 2023. On March 9, the Club advised that she had missed the February 28 deadline for indicating her interest in a contact renewal. Ms. Flannigan testified, and I accept, that this deadline had never been enforced before. The previous season, Ms. Flannigan had submitted her expression of interest on April 30. In any event, the Club offered to extend Ms. Flannigan’s deadline and she promptly responded to express her interest.
[124] On March 27, in a letter about Ms. Flannigan’s human rights complaint, the Club’s counsel indicated for the first time that Ms. Flannigan’s coaching contract may not be renewed because she was asking for “special privileges”. At that point, the Club’s assumption was that the Tribunal was not proceeding with the complaint. However, on May 30, the Club received formal notice that the complaint was proceeding. Only 18 days later, it advised Ms. Flannigan that her contract would not be renewed. The timing of this letter, so shortly after receiving notice of Ms. Flannigan’s complaint, supports an inference of retaliation.
[125] Next, I consider the Club’s explanation for its decision. Ms. Malfair testified that the Club could not move forward with a contract because Ms. Flannigan refused to provide her specific availability and proposed schedule. However, this was never communicated to Ms. Flannigan and was inconsistent with the practice in previous years.
[126] I accept that, beginning in 2021, the Club wanted Ms. Flannigan to commit to specific times for coaching. That year, it asked for her availability and – though she expressed her preference for flexibility – Ms. Flannigan provided it. In 2022, Ms. Flannigan wrote to the Club to express interest in a renewed contract. For availability, she said:
Availability: evenings and after 4:30 pm. Days and times to be determined after the ice schedule has been set.
The Club was then able to work with Ms. Flannigan to arrange a schedule.
[127] In 2023, Ms. Flannigan gave almost the same information to the Club about her availability:
Availability: Days and times to be determined after the ice schedule has been set and I have had a chance to review it.
This time, however, the Club said it could not move forward. It did not attempt any further communications with Ms. Flannigan to arrange a schedule, as it had in years past. It did not, at any point, tell Ms. Flannigan that her failure to provide availability was the reason her contract was not being renewed. In fact, no one from the Club ever gave Ms. Flannigan a reason, outside this human rights process.
[128] In Ms. Malfair’s direct examination, she testified that Ms. Flannigan had only asked for a freelance contract. She testified that the Club would have hired Ms. Flannigan as a Club coach because “the Club needs coaches”. In fact, Ms. Flannigan did ask for a Club coaching contract. The Club has not explained why it refused to offer her a Club coaching contract, in circumstances where it needed coaches and had worked with Ms. Flannigan for several years.
[129] Though Ms. Malfair says that the Club discussed the issue at its May Board meeting, the Club has not produced any of its minutes from that meeting. The Club did not present any evidence about its practice of requiring availability from other coaches, or how Ms. Flannigan’s failure to provide specific dates and times affected its ability to manage the schedule. In my respectful view, it has not presented any plausible explanation for its decision not to renew Ms. Flannigan’s contract. This supports an inference of retaliation.
[130] Finally, I consider that the Club explicitly referenced Ms. Flannigan’s human rights complaint in its two communications to her and her counsel about her contract.
[131] The first communication was the March 27, 2023 letter from the Club’s counsel to Ms. Flannigan’s counsel. In that letter, the Club’s counsel called Ms. Flannigan’s complaint “frivolous” and warned that, if it went forward, “it is the whole community that will suffer at your client’s insistence”. Counsel then went on to refer to Ms. Flannigan’s outstanding request for a coaching contract. She warned, “your client’s conditions as to the coaching contract terms makes it difficult for the Club to meet those conditions. [Ms. Flannigan] has asked for special privileges not given to other coaches, and we cannot do that”.
[132] The second communication was the Club’s June 16 letter to Ms. Flannigan refusing to renew the contract. The letter was short, and only referenced one issue: the human rights complaint. I reproduce the relevant part of the Club’s letter here for convenience:
This letter is to inform you that the board decided to not renew your contract for the 2023/2024 skating year.
The Board’s decision is not related to, nor a response to any circumstances concerning the Human Rights Complaint you have filed.
[133] Ms. Malfair testified that the purpose of including this language was to be clear that the Club’s decision was completely unrelated to the complaint. However, in all the circumstances, its inclusion supports the opposite inference. The letter did not identify any reason for the Club’s decision and only mentioned the complaint. This suggests that the human rights complaint was front of mind when the Club was considering the issue.
[134] I am satisfied that a reasonable complainant, considering all the circumstances, would reasonably perceive that the Club refused to renew Ms. Flannigan’s coaching contract in retaliation for filing this human rights complaint. This is a violation of the protection afforded by s. 43 of the Code, and warrants a remedy.
VII REMEDY
[135] I find Ms. Flannigan’s complaint justified in part. I declare that the Club violated s. 43 of the Code by refusing to renew Ms. Flannigan’s coaching contract in 2023: Code, s. 37(1)(b). I order the Club to cease the contravention and refrain from committing the same or similar contravention: Code, s. 37(1)(a).
[136] In addition to these orders, Ms. Flannigan seeks compensation for lost wages and injury to her dignity, feelings, and self-respect. I consider each of those requests in turn.
A. Lost wages
[137] The Tribunal has discretion to compensate a person whose rights have been violated for lost wages: Code, s. 37(2)(d)(ii). The object of an award for wage loss is to put the person in the position they would have been in had the violation not occurred: Gichuru v. Law Society of British Columbia (No. 2), 2011 BCHRT 185 [Gichuru] at para. 300, upheld in 2014 BCCA 396.
[138] To support her claim for wage loss, Ms. Flannigan must establish a causal connection between the retaliation and the lost wages: Gichuru at para. 302. I satisfied that she has done so. But for the Club’s decision not to renew her contract, Ms. Flannigan would have worked as a Club and freelance coach in the 2023/24 season, as she had in seasons past.
[139] To calculate the amount of wages lost, I rely on the amount that Ms. Flannigan earned in the 2022/23 season doing both freelance and Club coaching. It is reasonable to expect she would have worked and earned a similar amount in 2023/24 if her contract had been renewed.
[140] According to her invoices, Ms. Flannigan earned $918 coaching in 2022/23. This is the amount I order the Club to compensate Ms. Flannigan for lost wages.
B. Compensation for injury to dignity, feelings, and self-respect
[141] The purpose of an award for injury to dignity is to compensate a person whose rights under the Code have been violated. It is not to punish a respondent. The Tribunal generally considers three broad factors: the nature of the violation, the complainant’s social context or vulnerability, and the effect on the complainant: Gichuru at para. 260. The quantum is “highly contextual and fact-specific”, and the Tribunal has considerable discretion to award an amount it deems necessary: Gichuru at para. 256; University of British Columbia v. Kelly, 2016 BCCA 271 at paras. 59-64.
[142] As I have said, s. 43 of the Code aims to create safe conditions for people to bring forward issues of discrimination – whether or not those issues are ultimately substantiated: Talkkari at para. 29. Any conduct which seeks to punish a person for making a human rights complaint undermines the Code’s purposes and must be considered serious.
[143] In this case, the impact of the Club’s decision was that Ms. Flannigan could not coach. Coaching gave Ms. Flannigan an opportunity to be on the ice doing something she loves. It was a way to contribute to the figure skating community in Cranbrook – a cause for which she also committed significant personal time as a volunteer. At the same time, I am mindful – as the Club argues – that coaching was not Ms. Flannigan’s livelihood. This distinguishes the circumstances from cases where a person lost their full-time employment because of discrimination, justifying a high award.
[144] During the hearing, Ms. Flannigan gave evidence about the toll her conflict with the Club took on her mental health and wellbeing, between 2019 and 2023. This evidence was corroborated by Mr. Fleming, who testified that the conflict came to consume Ms. Flannigan and poison her love of figure skating. Ms. Flannigan felt anxious attending the ice rinks, and asked Mr. Fleming to accompany her when she had to meet with the Club. I accept this evidence, but find that it mostly related to events that I have found did not violate the Code. For the purpose of this award, I must focus on the specific impact of the Club’s decision not to renew Ms. Flannigan’s contract in 2023. I accept that Ms. Flannigan considered this the culmination of the Club’s escalating hostilities towards her and, as such, was deeply upsetting and distressing.
[145] Ms. Flannigan seeks an award of $50,000. As I understand it, this amount is based predominantly on the impact of events between 2019 and 2023 that I have not found to violate the Code. Ms. Flannigan has not cited any cases to support an award in this amount. The Club did not make submissions about the quantum of an award, other than to point out that it is a non-profit organization and $50,000 is too much.
[146] On balance, I exercise my discretion to award $5,000. In my view, this amount is commensurate with the specific violation I have found and the evidence presented about its impact on Ms. Flannigan. This is the amount awarded in other retaliation cases: Morriss v. Ruth and Naomi’s Mission, 2021 BCHRT 19; Customer v. The Restaurant and others, 2021 BCHRT 116; Pathak v. City of Vancouver and another, 2012 BCHRT 195; Cartwright v. Rona and another, 2011 BCHRT 65.
[147] I order the Club to pay Ms. Flannigan $5,000 as compensation for injury to her dignity, feelings, and self respect.
VIII CONCLUSION
[148] I have found Ms. Flannigan’s complaint to be justified in part. I make the following orders:
a. I declare that the Club violated s. 43 of the Code by refusing to renew Ms. Flannigan’s coaching contract in 2023: Code, s. 37(1)(b).
b. I order the Club to cease the contravention and refrain from committing the same or similar contravention: Code, s. 37(2)(a).
c. I order the Club to pay Ms. Flannigan $918 as compensation for wages lost: Code, s. 37(2)(d)(ii).
d. I order the Club to pay Ms. Flannigan $5,000 as compensation for injury to her dignity, feelings, and self-respect: Code, s. 37(2)(d)(iii).
e. I order the Club to pay Ms. Flannigan pre-judgment interest on the wage loss award until paid in full, based on the rates set out in the Court Order Interest Act.
f. I order the Club to pay Ms. Flannigan post-judgment interest on all amounts until paid in full, based on the rates set out in the Court Order Interest Act.
Devyn Cousineau
Vice Chair
[1] Some of the Club’s communications in fall 2019 refer to a price difference of $77 per hour. However, it is not clear what that is based on. My calculations are based on the rental fees set out in the 2019 and 2023 versions of the Bylaw that the parties have submitted in evidence. Ultimately, nothing turns on this relatively minor discrepancy.