Chow v. Northern BC Graduate Students’ Society (NBCGSS) and another, 2026 BCHRT 48
Date Issued: February 11, 2026
File(s): CS-007193
Indexed as: Chow v. Northern BC Graduate Students’ Society (NBCGSS) and another, 2026 BCHRT 48
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:
Alden Chow
COMPLAINANT
AND:
Northern BC Graduate Students’ Society (NBCGSS) and Ms. M
RESPONDENTS
REASONS FOR DECISION
APPLICATION FOR ANONYMYZATION: RULE 5
APPLICATION TO DISMISS A COMPLAINT: SECTION 27(1)(C)
Tribunal Member: Ijeamaka Anika
On their own behalf: Alden Chow
Counsel for the Respondents: Kelsey Wheelhouse
I INTRODUCTION
[1] On October 29, 2021, Alden Chow filed a complaint [Original Complaint] against Northern BC Graduate Students’ Society [the Society] and Ms. M, a former member of the Society’s Board of Directors [together the Respondents]. Mr. Chow brings his complaint under ss. 7 and 13 of the Human Rights Code, alleging discriminatory publications and discrimination in employment respectively. Mr. Chow subsequently filed an amendment to the Original Complaint. I refer to the Original Complaint and amendment as the complaint throughout this decision.
[2] This decision relates to the Respondents’ application to dismiss Mr. Chow’s complaint without a hearing and Ms. M’s anonymization application.
[3] Mr. Chow was employed by the Society as its Executive Director from November 2018 until he resigned effective October 31, 2023. Mr. Chow is of Chinese descent and has anxiety and depression. Mr. Chow alleges discrimination on the grounds of race, colour, ancestry, place of origin, and mental disability. For efficiency and because nothing turns on the distinction between the first four protected characteristics, I refer to Mr. Chow’s protected characteristics, except mental disability, as “race” in this decision. Mr. Chow says the Society was a toxic workplace and he was forced to resign because of the discrimination he experienced and the Board’s failure to respond reasonably.
[4] At the heart of his complaint are three incidents involving Ms. M. First, that in November 2020, Ms. M posted a video spreading misinformation about the COVID-19 pandemic to a group chat whose membership consisted of Mr. Chow and Board. Mr. Chow says the video “is clearly stating that Chinese people are attempting to impose a technocracy and totalitarian model to commit genocide.” Second, that Ms. M told other members of the Board that a student had complained that someone at the Society had been “curt” and based on the student’s physical description of the person, Ms. M told the student it sounded like she was talking about Mr. Chow. Third, at a Board meeting Ms. M questioned the official death toll of the COVID-19 pandemic, stated that public health orders were civil liberties issues and expressed skepticism about the efficacy of COVID-19 vaccines.
[5] In Mr. Chow’s complaint amendment, he also alleged, among other things, that the Respondents victim blamed him in their response to his complaint, singled him out to attend a late-night Board meeting, failed to resolve issues related to his compensation, and issued his record of employment late.
[6] The Respondents deny discriminating and apply to dismiss all or part of the complaint under ss. 27(1)(b), (c), and (d)(ii). I find that I can efficiently decide the dismissal application under s. 27(1)(c) which provides that the Tribunal can dismiss a complaint on the basis that it has no reasonable prospect of success. This application turns on whether Mr. Chow has no reasonable prospect of successfully proving that his protected characteristics were a factor in the adverse impacts he alleges. In relation to s. 7, I must decide whether Mr. Chow has no reasonable prospect of successfully proving Ms. M posting the video sought to make an invidious distinctions based on race or the speech at issue meets the high threshold for hate speech.
[7] Ms. M seeks to have her name anonymized to protect her identity under Rule 5(6) of the Tribunal’s Rules of Practice and Procedure [Rules].
[8] For the following reasons, I allow the Respondents’ application to dismiss the complaint in its entirety and grant the application to anonymize Ms. M’s name under Rule 5(6) of the Tribunal’s Rules of Practice and Procedure. To make this decision, I have considered all the information filed by the parties. In these reasons, I only refer to what is necessary to explain my decision. I make no findings of fact about the merits of the complaint.
II BACKGROUND
[9] This background is taken from the materials filed by the parties.
[10] The Society is a students’ union representing the interests of graduate students at the University of Northern British Columbia. The Society is governed by a volunteer Board of directors [Board] and, during the period relevant to this complaint, operated through its only employee, the Executive Director.
[11] Mr. Chow was the Society’s Executive Director from November 2018 until his resignation on October 31, 2023, though there is some indication in the evidence that he may have worked there in some capacity from approximately 2015. Mr. Chow’s compensation as Executive Director was $19 per hour for most of his time as Executive Director. He was entitled to $400 per year for continued education funding with prior approval from the Society President or Executive Council and his contract said he would have an annual performance review.
[12] In March 2020, the Province of British Columbia declared a state of emergency because of the COVID-19 pandemic. For the next several years, the Provincial Health Officer issued various orders and recommendations to stop the spread of COVID-19. It was a time of great uncertainty and stress for many British Columbians. It was also a time that saw the rise of anti-Asian sentiment and conduct: BC’s Office of the Human Rights Commissioner, “From hate to hope: Report of the Inquiry into hate in the COVID-19 pandemic,” Vancouver, B.C., 2023. It is in this context that Mr. Chow’s complaint arises.
[13] The key events relevant to Mr. Chow’s complaint are set out below.
[14] Mr. Chow sought to renegotiate his employment contract in July 2020. Among other things, he proposed a raise to $26 per hour and terms setting out his right to a harassment and discrimination free workplace. The Board did not accept the changes Mr. Chow proposed.
[15] In October 2020, a graduate student told Ms. M that a man of Asian descent, with black hair and glasses had been curt to her at the Society’s office. Ms. M replied that the student must be referring to Mr. Chow, the Society’s Executive Director.
[16] The Board and Mr. Chow had a group chat on Facebook. The chat was limited to Board members and Mr. Chow. On November 18, 2020, there was discussion about scheduling a Board trip to the Quesnel campus. Mr. Chow wrote that he heard on the news that the Province had advised avoiding non-essential travel and attached a link to a government website “Phase 3: What you must do”. The next two messages were from Ms. M. She commented that she would go home for Christmas, wrote “Look what I found,” and shared a video titled “The COVID-19 Genocide of 2020” [the video]. The video was approximately 20 minutes long and included a speech containing a range of conspiracy theories about COVID-19. It included two comments that Mr. Chow relies on specifically: COVID-19 was created to impose, “technocratic and totalitarian government worldwide under the guise of socialism and environmentalism, with China as the model, and enslave humanity through a sinister vaccine conspiracy” near the beginning of the video, and “Western values will have been tested to the breaking point – your culture will be eliminated and replaced with Maoist technocratic slogans” near the end. No one on the group chat responded to Ms. M’s post. The chat continued with a discussion about whether the Board members should postpone the trip to the Quesnel campus. Ultimately, they decided not to go.
[17] In December 2020, Ms. M told other Board members about the student’s report that Mr. Chow had been curt to her. She and at least one other Board member suggested the Chair speak to Mr. Chow about the report. Mr. Chow argues before the Tribunal that this discussion was a performance review and violated his employment contract.
[18] The Board Chair and Mr. Chow met to discuss the student’s report on December 16, 2020. Mr. Chow asked for clarification about how he was curt, but the Chair could not provide that information so it was agreed that it would be put on the agenda of an upcoming Board meeting. They also discussed why Ms. M had brought the student’s issue forward in December when she learned about it in October. Mr. Chow suggested that Ms. M reported the issue to the Board the same week he notified her that her by-election nomination form for a position at the Society was not accepted for filing.
[19] It appears Mr. Chow and the Board discussed the student’s report in January 2021. According to a later email Mr. Chow wrote summarizing that discussion, “It was still unclear to everyone, including to [Ms. M], how I was being ‘curt’”. It also appears that they discussed developing a harassment policy as part of the discussion about the student’s report.
[20] In or around March 2021, the Board completed a review of Mr. Chow’s performance. The evaluation looked at approximately 23 categories and evaluated whether Mr. Chow’s performance fell within one of three categories: “needs improvement”, “meets expectations”, and “exceeds expectations”. Overall, the Board found Mr. Chow’s performance exceeded expectations.
[21] There were three categories where the Board said his performance needed improvement. Those were, “Accepts criticism – has ability to learn from suggestions and change behaviour”, “Graduate student interaction – Ensures high-quality relationships, respects graduate students’ dignity and confidentiality,” and “Appearance of work area – keeps the graduate office and grad lounge neat and orderly.” Under “Employer Remarks and Recommendations” the Board wrote:
We would like to highlight and acknowledge your extensive knowledge of the policy and procedures, not only of, not only the grad society, but also government policy. We also recognize your heightened ability to communicate via email and other official communications. We also recognize your dedication to the grad society and to the grad students, however rocky the road may have been in the past, and look forward to working alongside you to make the grad society better than ever!
[22] There is also a section for “Employee Comments”. The copy in evidence does not include any comments from Mr. Chow and is unsigned.
[23] Mr. Chow takes issue with this performance review because, among other things, he says this was a second performance review within a year contrary to his employment contract. He characterizes the Board’s December 2020 discussion of the student complaint as the first performance review.
[24] In March 2021, the Board sent Mr. Chow the performance review. It also sent a new draft employment contract for Mr. Chow, which included clauses for a retroactive increase to $19.76 per hour for the 2020/2021 fiscal year and a provision for a prospective increase to $22.23. The draft contract included a section titled “Harassment” that included a “no discrimination clause” based on the rights protected under the Code that mirrored what Mr. Chow had proposed in July 2020.
[25] At a Board meeting in August 2021, Mr. Chow said he believed the Society was an unsafe space.
[26] At a Board meeting on September 14, 2021, Ms. M questioned the official death toll of the COVID-19 pandemic and stated that public health orders were civil liberties issues, and that COVID-19 vaccines were ineffective because vaccinated individuals were still being infected with COVID-19. One Board member pushed back on Ms. M’s comments, specifically about the efficacy of vaccines.
[27] A Board member met with Mr. Chow on September 27, 2021, and asked Mr. Chow about his comment at the August Board meeting that the Society was an unsafe space. Mr. Chow summarized the conversation in an email to the Board Chair. He said he started to feel unsafe when Ms. M posted the video. He described the video as “being about 20 minutes long of information, including that the pandemic was pre-planned”. He also said he felt unsafe when Board members discussed the student report that he was curt “without providing me an opportunity to respond and thereby making assumptions”. He also wrote that “As a possible solution, the Board and I would work on a new employment contract” and that he and the Board member agreed WorkSafe BC might be able to assist. Mr. Chow’s summary does not include any mention of Ms. M’s comments about the pandemic at the Board meeting earlier that month. Nor does it allege that the video targeted Chinese people or China.
[28] Mr. Chow filed the Original Complaint on October 29, 2021.
[29] In late 2021, the Board worked on drafting a bullying and harassment policy. It sought Mr. Chow’s input. The Society did not implement a bullying and harassment policy prior to Mr. Chow resigning.
[30] There is little evidence about what was happening with the parties in the winter, spring and summer of 2022. There are emails indicating the Board and Mr. Chow continued to discuss revising his contract in the summer and fall.
[31] In September 2022, it appears the Board became aware of Mr. Chow’s Original Complaint in the course of renewing its liability insurance, before receiving notice of the complaint from the Tribunal. The Chair asked Mr. Chow about his complaint. Mr. Chow told the Chair he felt uncomfortable discussing it and the conversation ended. In a follow-up email, Mr. Chow summarized the conversation and asked, “Can you please clarify why you felt the need to ask me questions about my human rights complaint, when the Tribunal has not yet served my human rights complaint?” The Chair replied and apologized. He said he did not know what the complaint meant so was looking for help understanding the concepts and procedures.
[32] The evidence is again sparse about what was happening between the parties until December 2022. However, there is an email thread from December 2022 to January 2023 before me between the Board Chair and Mr. Chow. In response to an inquiry from the Chair about the possibility of Mr. Chow opening the office early on certain dates in January, Mr. Chow gave his availability and also wrote that “For the past two years, I have stated to the [Society] that the [Society] is an unsafe and unhealthy workspace. My physical and mental health continues to be negatively impacted.”
[33] The Chair responded by affirming that working for students was challenging, and saying he had “stated several times, I appreciate your time/effort toward society, and I offered help a couple of times, but you were not interested… That said, please me know how I can help in this regard. As I expressed before, I will do my best to help you feel safe and satisfied.” The Chair gave as an example of his efforts to address Mr. Chow’s concerns: he had reached out to help Mr. Chow with his contract concerns, but Mr. Chow had said he preferred to talk with a former Board member who had been working on the contract issue with him.
[34] Mr. Chow asked why the Chair thought a new contract would address his health and safety concerns and explained why he wanted to hear from the past Board member. He also indicated that the two of them had watched the video together approximately two years ago and the Chair said he would speak up after Mr. Chow told the Chair he was disturbed by the video. Then Mr. Chow said the Chair did not speak up when Ms. M made comments about the pandemic and vaccine at the September 14, 2021, Board meeting, saying only another Board member responded.
[35] In response the Chair wrote that, as he had told Mr. Chow before, “I had a conversation with [Ms. M] after that meeting, and the matter was resolved…. That being said, please let me know if you need anything or if I can help in any way to improve your current situation in society”. Mr. Chow said he did not know about that discussion and asked for further details including why the Chair thought the issue was resolved.
[36] The Chair replied that he could not remember the specific date or details of the conversation. The Chair said he considered it resolved because “[Ms. M] didn’t mention anything like that again in any meeting”. He also said he did not understand why Mr. Chow continued to bring up past events and people no longer with the Society. By this time, Ms. M’s term on the Board has ended, though it is not entirely clear when. The Chair said he could not change the past but “might be able to improve the current and possible future”. He asked Mr. Chow to let him know if he could do anything for Mr. Chow now or in the future. Mr. Chow responded by saying that he did not say his concerns were only with past events and people no longer with the Society, and that the Tribunal offered mediation services and he looked forward to mediation.
[37] The Tribunal served the Respondents with the Original Complaint on April 3, 2023. In his complaint amendment Mr. Chow says from at least this date, the Society “repeatedly discriminated and retaliated against me, including victim shaming me and victim blaming me that increased the hostile, toxic work environment”. He points to the following as a factual basis for this allegation:
a. On June 2, 2023, he was singled out to attend a mandatory Board meeting at 10:00 pm to discuss Board honorariums even though the meeting was not an emergency.
b. In July 2023 the Chair emailed him to complain about another Society representative and noted he was angry at her. Mr. Chow became fearful that the Chair would expose him to anger as well.
c. On October 25, 2023, the Chair emailed Mr. Chow. The email stated that “regarding your back pay, I have decided that we should hold on to that matter and resolve it on a later date because so far, it has been back and forth situation whenever we bring it up.”
[38] Also, during this time, in or around August 2023, Mr. Chow attempted to renegotiate his contract. Many of the previous terms in the draft contracts appear to be the same. One change was that Mr. Chow proposed a 3% annual wage increase retroactive to 2021 that culminated in a 2024 hourly wage of $29.23. The Board did not accept the proposed contract.
[39] Mr. Chow resigned from the Society in the fall of 2023. In an email on September 18, 2023, he stated:
After eight years of working at the [Society], I am writing to serve notice of my intention to resign. For my personal health and development, I need to move forward from the [Society] to heal from the harm I have experienced at the [Society]. I feel I can no longer remain at the [Society] as the Executive Director.
[40] The Chair responded to this email saying the Society did not want him to go and would like to work to resolve the “pending issues”. He also stated that given the notice period in Mr. Chow’s contract, he did not think there would be time to do so and asked Mr. Chow to tell them when his last day would be so the Society could work on a transition plan.
[41] Mr. Chow continued to work at the Society in October though he communicated to the Board that he still intended to resign.
[42] At a Board meeting on October 18, 2023, the Board passed a motion to increase Mr. Chow’s wage to $23.11 per hour. At the same meeting Mr. Chow told the Board his last day of work would be October 31, 2023.
[43] In another email to the Society on October 23, 2023, Mr. Chow stated:
I am resigning due to the discrimination I have endured that started three years ago, as well as how current [Society] Board members have responded. I have continued to work at the [Society] at the expense of my health and safety. I need to move forward from the [Society] to heal from the harm.
[44] Mr. Chow’s last day of work was October 31, 2023.
[45] On April 30, 2024, the new Board Chair emailed Mr. Chow, explaining that the Board was in a transition phase and had just received signing authority that day, which enabled them to issue his final payment.
[46] Mr. Chow says he received his final pay on April 30, 2024, approximately six months after his last day of work. He also says the Society issued his final record of employment in July 2024.
III PRELIMINARY MATTER – APPLICATION TO LIMIT PUBLICATION
[47] Ms. M applies under Rule 5(6) of the of the Tribunal’s Rules to limit publication of her name. Mr. Chow opposes the application.
[48] Proceedings before the Tribunal are presumptively public: Mother A. v. School Dist. C., 2015 BCHRT 64 at para. 7. The Tribunal has consistently affirmed the strong public interest in conducting open proceedings and making its decisions accessible to the public: Administrative Tribunals Act, S.B.C. 2004, c. 45, s. 50(4), Code, s. 32(n). This openness is not absolute, however. It may be curtailed where there are private or public interests which outweigh the public interest in accessing information. A party bears a heavy onus of establishing that an exception to the “open court” rule is warranted: EC v. Dr. GL, 2015 BCHRT 121 [EC] at para. 48.
[49] Applications to limit publication of a complaint are decided on a case-by-case basis and depend on the specific circumstances. The Tribunal has discretion to limit publication of identifying information where a person can show their privacy interests outweigh the public interest in full access to the Tribunal’s proceedings: r. 5(6); Stein v. British Columbia (Human Rights Tribunal), 2020 BCSC 70 at para. 64(a). “A bare assertion of harm will not be sufficient”: JY v. Various Waxing Salons, 2019 BCHRT 106 at para. 30(d); Francis v. British Columbia (Justice) (No. 2), 2014 BCHRT 171 at para. 15.
[50] The Tribunal may consider factors like the stage of the proceedings, the nature of the allegations, private details in the complaint, harm to reputation, or any other potential harm: JY at para. 30. This list is not exhaustive. It is intended simply to show the types of factors which may justify the Tribunal restricting public access to personal information in a complaint. The Tribunal exercises its discretion in the manner that can best ensure the just and efficient resolution of complaints and, in doing so, further the purposes of the Code.
[51] Ms. M acknowledges the strong public interest in the Tribunal making decisions public but argues that in this case, privacy interests outweigh the public’s interest in knowing her identity. Ms. M argues that she lives in a small community in northern BC and anonymizing this decision would protect her from potential harm to her career, salary, future earning potential, opportunities, and professional reputation.
[52] The stage of the proceedings weighs in favour of anonymization. There is greater scope for limiting public access at early and interlocutory stages of the Tribunal’s process before the Tribunal has made any decision on the merits of the complaint: A. v. Famous Players Inc., 2005 BCHRT 432 at para. 11. That is the case here; the application comes relatively early in the Tribunal’s process, in relation to the first decision that will be published, and it addresses unproven allegations. Therefore, the stage of proceedings weighs in favour of granting Ms. M’s application.
[53] I also find that the nature of Ms. M’s profession weighs in favour of anonymization. Ms. M intends to set up a practice as a clinical therapist and currently works with a public institution as a clinical practitioner in a small community, with vulnerable children and families. The Tribunal may consider the nature of a person’s profession and the allegations to determine whether the potential harm to reputation will justify an order restricting publication: Complainant v. Health Authority, 2016 BCHRT 98; A v. BC (the Ministry and others), 2012 BCHRT 342.
[54] The Tribunal has noted that “irreparable harm that may flow from the destruction of a person’s […] reputation by unproven allegations of misconduct or, as in this case, the violation of a person’s human rights, has also been recognized in law”: Mr. C. v. The Clinic and another, 2016 BCHRT 159 [Mr. C] at para. 32. Context is important. In several cases, the Tribunal has found professional reputation to be a particularly relevant factor when the respondent works in a healthcare or therapeutic capacity and in a small community: Mr. B v. Dr. G, 2007 BCHRT 227 at para 38; ND v. University of British Columbia and others, 2009 BCHRT 60; Mr. C.
[55] The mere assertion by a party that their reputational interests may be affected by the fact that a complaint has been filed is not, in and of itself, sufficient to outweigh the public interest in open Tribunal proceedings: Francis at para. 15. However, the Tribunal has recognized that in certain situations, the impact on an individual’s professional reputation by unproven allegations of discrimination weighs in favour of anonymizing a complaint: EC at para. 51. Ms. M has provided more than a bare assertion. My understanding is that working with vulnerable children and families, and building trust may require sharing sensitive personal information. Unproven allegations of discrimination could undermine this trust and affect Ms. M’s ability to maintain treating relationships with her patients. This seems particularly significant in small communities like the one where Ms. M works, where it is more likely for people to know each other and information to circulate quickly. I find this factor weighs in favour of anonymization.
[56] Mr. Chow opposes the application on two grounds. First, he argues that it would be in the public interest to know about Ms. M’s professionalism because she works for a public institution. Second, he argues that Ms. M has engaged in improper conduct in her communication with the Tribunal, and that this conduct weighs against granting the application. I am not persuaded by Mr. Chow’s arguments.
[57] Regarding his first argument, while public accountability is important for those who work in public institutions, this factor must be weighed against the stage of proceedings and the nature of the decision. Here, the allegations against Ms. M are unproven. At this preliminary stage, before any hearing on the merits, and in the absence of any findings of discrimination, the public interest in knowing Ms. M’s specific identity does not outweigh her privacy interests. Further, Ms. M has told her employer about the complaint. If her employer has any concerns, it can address them. I find the public interest in transparency and accountability is adequately served by an anonymized decision that provides the background, issues, arguments, and reasoning without disclosing Ms. M’s identity: EC at para. 54. The public will still have access to the substance of the decision and the Tribunal’s reasoning.
[58] Regarding Mr. Chow’s second argument about Ms. M’s alleged improper conduct, I find this is not a relevant consideration in deciding whether to grant the anonymization application. Mr. Chow raises three concerns: Ms. M’s reasons for filing a late complaint response; an alleged false statement about attribution of a Facebook post; and alleged false statements about settlement offers. Even if any of Mr. Chow’s concerns about Ms. M’s conduct had merit, they would not be relevant considerations in deciding the anonymization application. The issue before me is whether Ms. M’s privacy interests outweigh the public interest in knowing her identity, not whether she has engaged in improper conduct during the complaint process. If a respondent’s conduct during a complaint is improper, a complainant’s proper recourse is to seek costs, not to oppose an anonymization application on that basis.
[59] I am satisfied that that Ms. M has met her onus of showing that limiting publication is warranted in this case. The stage of the proceedings and the nature of Ms. M’s profession in a small community, combined with the potential harm to her professional reputation and her ability to maintain therapeutic relationships with her patients, outweigh the public interest in knowing her identity. The public interest in open access to the Tribunal’s process can be adequately served by making an anonymized decision that provides the background, issues, arguments, and reasoning without disclosing Ms. M’s identity: EC at para. 54.
[60] I grant Ms. M’s application and have anonymized this decision accordingly. The case name shall be changed to reflect this anonymization, replacing her name with “Ms. M” Since I dismiss Mr. Chow’s complaint in its entirety (as set out below), there will be no future decisions in this matter. However, had I not dismissed the complaint, my anonymization order would have been in effect only until the hearing.
IV DECISION
[61] The Respondents apply to dismiss the complaint on the basis that it has no reasonable prospect of success: s. 27(1)(c). Below, I dismiss the complaint in its entirety under s. 27(1)(c).
[62] Section 27(1)(c) is part of the Tribunal’s gate-keeping function. It allows the Tribunal to remove complaints which do not warrant the time and expense of a hearing.
[63] The Tribunal does not make findings of fact under s. 27(1)(c). Instead, the Tribunal looks at the evidence to decide whether “there is no reasonable prospect that findings of fact that would support the complaint could be made on a balance of probabilities after a full hearing of the evidence”: Berezoutskaia v. British Columbia (Human Rights Tribunal), 2006 BCCA 95 at para. 22, leave to appeal ref’d [2006] SCCA No. 171. The Tribunal must base its decision on the materials filed by the parties, and not on speculation about what evidence may be filed at the hearing: University of British Columbia v. Chan, 2013 BCSC 942 at para. 77.
[64] A dismissal application under s. 27(1)(c) is not the same as a hearing: Lord v. Fraser Health Authority, 2021 BCSC 2176 at para. 20; SEPQA v. Canadian Human Rights Commission, [1989] 2 SCR 879 at 899. The threshold to advance a complaint to a hearing is low. A complainant does not have to prove their complaint or show the Tribunal all the evidence they may introduce at a hearing. They only have to show that the evidence takes their complaint out of the realm of conjecture: Workers’ Compensation Appeal Tribunal v. Hill, 2011 BCCA 49 [Hill] at para. 27.
A. Does Mr. Chow’s allegation that the Respondent’s discriminated against him on the basis of mental disability have no reasonable prospect of success?
[65] While Mr. Chow lists mental disability as a protected ground in his complaint form, I understand the core of his complaint to be about the race-based discrimination. However, before I address the substance of Mr. Chow’s complaint, I address this allegation. There is no dispute on this application that Mr. Chow has a mental disability, specifically anxiety and depression. The question I must decide is whether there is any reasonable prospect that Mr. Chow could prove at a hearing that the workplace exacerbated his disability and that the Society knew or ought to have known about his mental disability.
[66] Regarding whether the workplace exacerbated his mental disability, the evidence Mr. Chow relies on is a letter from his counsellor and a medical note. The counsellor’s letter reports what Mr. Chow told her during their sessions, namely that he was experiencing increased stress related to his workplace. The letter does not provide an opinion on whether his disability was getting worse or that the workplace exacerbated his anxiety or depression. It is simply reiterating what Mr. Chow told his counsellor, that he was having trouble at work and this was increasing his stress. Stress, and its symptoms, are not enough to show a disability under the Code: Van Vugt v. Donnelly Landscapes Ltd and another (No 2), 2025 BCHRT 229 at para. 80. Similarly, I am not convinced that there is any reasonable prospect that, even if Mr. Chow proved he was experiencing increased stress at work, the Tribunal would find as a fact, after a full hearing, that this amounts to an exacerbation of his anxiety and depression.
[67] Further and in any event, I am not satisfied that there is any reasonable prospect that Mr. Chow could prove the Respondents knew or ought to have known that he had a disability, that he thought work was making it worse, and they failed to respond reasonably. The Respondents deny that they knew he had anxiety and depression. Mr. Chow has not particularized who he told he had anxiety and depression or when. I acknowledge in Mr. Chow’s evidence there are emails he sent to Board members that refer to his health. For example, in December 2022 he wrote that the workplace was affecting his “physical and mental health” and in January 2023 he wrote that he was feeling “traumatized and triggered”. These are quite general statements about his wellbeing, rather than evidence that the Respondents knew he had anxiety and depression. Additionally, on the whole of the evidence, it appears the Board members consistently responded with concern, asking what they could do to help, and, as will be discussed further below, when Mr. Chow particularized his concerns, for example with the Ms. M’s COVID comments and the video, the Board addressed them.
[68] Accordingly, I find that there is no reasonable prospect that Mr. Chow could prove discrimination in employment on the basis of mental disability. This allegation is dismissed.
B. Is there no reasonable prospect Mr. Chow will prove discrimination in employment based on race?
[69] As I understand Mr. Chow’s complaint, he alleges that each of the following allegations amount to a breach of the Code:
a. In 2020, Ms. M posted the video in the group chat.
b. In 2020, Ms. M reported to the Board that a student stated someone matching Mr. Chow’s description, was curt.
c. In March 2021, the Society conducted Mr. Chow’s annual performance review. Mr. Chow says this was a second performance review within a year, contrary to the requirements of his employment contract. He argues the Board’s discussion of the student feedback in December 2020 to be the first performance review.
d. In September 2021, Ms. M commented about the COVID-19 death toll, public health orders, and vaccine efficacy in a Board meeting.
e. The Society did not implement a bullying and harassment policy.
f. He was required to attend a late-night meeting
g. He feared the Board Chair’s anger following the Tribunal notifying the Respondents of the complaint.
h. The Society told him it would wait until after his complaint was resolved before addressing his issues regarding backpay and his employment contract.
i. The Society withheld his continuing education fees.
j. The Society delayed his last pay and preparation of his Record of Employment.
[70] I also understand Mr. Chow to argue that taken together, the allegations prior to his resignation amount to constructive dismissal. In effect, he argues that he was compelled to resign because of a toxic work environment connected to his protected characteristics.
[71] I note that in his complaint amendment, Mr. Chow uses the phrase “discriminated and retaliated against me” when describing the conduct that occurred after the Tribunal served the complaint in April 2023. However, Mr. Chow does not cite s. 43 of the Code, which specifically addresses retaliation for participating in a complaint before the Tribunal. His amendment states he is “further particularizing” his discrimination complaint, and throughout his submissions he seems to use “discriminated” and “retaliated” somewhat interchangeably. He does not cite any jurisprudence applying s. 43 though he does cite case law applicable to discrimination complaints rather extensively. The Respondents also appear to understand Mr. Chow’s complaint as being about discrimination rather than a separate claim under s. 43. In these circumstances, I understand Mr. Chow to be alleging that the Respondents discriminated against him – that is, they breached s. 7 or s. 13, including based on allegations that occurred after he filed his complaint. I do not understand him to be alleging a separate violation of s. 43.
[72] I consider Mr. Chow’s discrimination allegations individually and then I consider them collectively to address his constructive dismissal allegation.
1. Publication allegation: Is there no reasonable prospect that Mr. Chow will prove the Respondents breached s. 7 of the Code?
[73] Mr. Chow alleges that the Respondents violated s. 7 of the Code in relation to his race when Ms. M posted the video in the Board’s Facebook group chat in 2020. Mr. Chow argues that posting the video violated s. 7(1)(a) and/or (b) of the Code, which prohibits discriminatory publications. I address this allegation under s. 27(1)(c).
[74] Mr. Chow’s allegation under s. 7 has no reasonable prospect of success. Section 7 has two parts. Section 7(1)(a) prohibits a person from publishing anything that “indicates discrimination or an intention to discriminate against a person or group or class of persons”. It targets conduct “where a respondent intends to make an invidious distinction with adverse consequences”: Stacey v. Campbell, 2002 BCHRT 35 at para. 40; Oger v. Whatcott (No. 7), 2019 BCHRT 58 at para. 104. Section 7(1)(b) prohibits hate speech, which is speech that – viewed objectively – “exposes or tends to expose any person or class of persons to detestation and vilification on the basis of a prohibited ground of discrimination”: Saskatchewan (Human Rights Commission) v. Whatcott, 2013 SCC 11 at para. 163. I explain why the allegation under s. 7(1)(a) has no reasonable prospect of success next.
[75] Mr. Chow characterizes the video Ms. M shares as “clearly stating that Chinese people are attempting to impose a technocracy and totalitarian model to commit genocide.” He argues that his race, ancestry, and perceived place of origin were “factored” by Ms. M “whether consciously or unconsciously” in her response to his safety concerns and notice of public health orders. Ms. M says she “would have shared any video in good faith with my peers as a shock to what was being circulated at the time”.
[76] First, I note that intention is irrelevant to whether a party has breached the Code: Code, s. 4. Therefore, whether Ms. M intended to factor Mr. Chow’s race into her decision to post the video or not is irrelevant.
[77] The video contains various conspiracy theories about the COVID-19 pandemic. In the approximately 20-minute speech captured in the video, it mentions China/Maoism twice – specifically, it references Maoism in the context of discussing global governance models. However, the vast majority of the video focuses on other actors and theories. The video discusses Bill Gates, the World Economic Forum, and various European and Western leaders. When the video lists those it characterizes as “perpetrators” of the so-called genocide, China is not listed among the alleged perpetrators, nor are any Chinese or Asian leaders as far as I can tell. Therefore, I am unable to accept Mr. Chow is reasonably likely to prove it “clearly” blames China or Chinese people as Mr. Chow submits. Even accepting Mr. Chow’s characterization of the video content, the video does not indicate discrimination or an intention to discriminate within the meaning of s. 7(1)(a). It does not suggest – and more importantly, Ms. M sharing it in the group chat, does not suggest – the kind of real-world discriminatory effect that is captured by s. 7(1)(a).
[78] Cases where the Tribunal has found that s. 7(1)(a) was violated involve calls for specific discriminatory effects. For example, in Li v. Mr. B., 2018 BCHRT 228, a landlord went to his tenant’s place of work and showed the employer a picture of the male tenant wearing a dress, saying “what kind of people you have working for you”: para. 124. The Tribunal found that the landlord was attempting to interfere in the tenant’s employment, based on his perception that the employer would react negatively to the picture and therefore elicit job-related consequences for the tenant. By contrast, Mr. Chow does not allege that in posting the video Ms. M stated or suggested that people of Chinese origin should be excluded from opportunities or treated differently because of their race or ancestry. Ms. M’s sharing of the video in the group chat, with the comment “Look what I found,” does not add such suggestion. There is no reasonable prospect that Mr. Chow could prove a violation of s. 7(1)(a).
[79] I now turn to whether there is a reasonable prospect that Mr. Chow could prove a violation of s. 7(1)(b) based on the video and Ms. M’s comment. Section 7(1)(b) of the Code prohibits hate speech. The test for hate speech is “whether, in the view of a reasonable person aware of the context and circumstances, the representation exposes or tends to expose any person or class of persons to detestation and vilification on the basis of a prohibited ground of discrimination”: Saskatchewan (Human Rights Commission) v. Whatcott, 2013 SCC 11 [Whatcott] at para. 95; Ward v. Quebec (Commission des droits de la personne et des droits de la jeunesse), 2021 SCC 43 at para. 83.
[80] It is an objective test, targeted to extreme manifestations of hatred or contempt, and focused on the likely effect of the expression at issue: Whatcott at paras. 56–58: Oger at para. 144. Hate speech laws seek to prevent two kinds of harm: individual and societal. At the societal level, hate speech can “increase discord” and create “a subtle and unconscious alteration of views concerning the inferiority of the targeted group”: Whatcott at para. 73. Section 7(1)(b) does not capture expression which “while repugnant and offensive, does not incite the level of abhorrence, delegitimization and rejection that risks causing discrimination or other harmful effects”: Whatcott at para. 57; Oger at para. 152.
[81] I am not convinced that Ms. M sharing the video in the group chat, if proven, could contravene s 7(1)(b). The test for hate speech requires consideration of the context and circumstances in which the impugned speech arose. I accept that Ms. M shared the video at a time when anti-Asian hate was rising, driven by misinformation about China’s role in COVID-19 which sometimes extended to blaming Asian people generally for the pandemic: BC’s Office of the Human Rights Commissioner, “From hate to hope: Report of the Inquiry into hate in the COVID-19 pandemic.” Vancouver, B.C., 2023, p. 42. This was a time where Chinese Canadians were particularly vulnerable to the effects of speech that scapegoated and blamed China for the pandemic.
[82] However, based on the actual content of the video, there is no reasonable prospect that Mr. Chow could prove it constitutes hate speech under s. 7(1)(b). First, it is difficult to see how Ms. M posting this video could cause the kind of societal impacts s. 7(1)(b) seeks to prevent. While the video briefly mentions China, it does not scapegoat or blame China or the Chinese people for the pandemic. Rather, it blames the World Economic Forum and a range of European and American leaders, but not “clearly” China or Chinese people as Mr. Chow submits. Further, Ms. M did not share the video widely. She shared the link in a private group chat with a small group of people. Mr. Chow has not explained, and I do not see how, sharing the video in this small group could be likely to cause the kind of societal harms s. 7(1)(b) is designed to prevent.
[83] Hate speech goes “far beyond merely discrediting, humiliating or offending the victims”: Whatcott at para. 41. While the video was offensive to Mr. Chow, and understandably so given the widespread disinformation circulating about COVID-19 and in the context of rising anti-Asian hate during the pandemic, there is no reasonable prospect he will prove that its actual content creates the kind of extreme ill-will against people of Chinese descent that is required under s. 7(1)(b). As the Supreme Court of Canada said, “The prohibition of hate speech is not designed to censor ideas or to compel anyone to think ‘correctly’”: Whatcott at para. 58.
[84] Finally, as I interpret Mr. Chow’s allegations about the video, they are, at their core about creating or contributing to a toxic work environment for him personally. Put another way, his allegation is more about the adverse effect the video had on his employment relationship. Therefore, I find it is best considered in relation to s. 13 which I do below.
[85] On this basis I am satisfied that there is no reasonable prospect Mr. Chow could prove that Ms. M’s sharing of the video violated s. 7 of the Code. This allegation is dismissed pursuant to s. 27(1)(c).
[86] Next, I turn to whether the Respondents have convinced me to dismiss the individual allegations Mr. Chow makes under s. 13 of the Code under s. 27(1)(c). Section 13 prohibits discrimination in employment.
2. Description of Mr. Chow’s appearance and the performance review
[87] To prove the Respondents breached s. 13 at a hearing, Mr. Chow will have to prove that he has a characteristic protected by the Code, he was adversely impacted in employment, and his protected characteristic was a factor in the adverse impact: Moore v. British Columbia, 2012 SCC 61 at para. 33. If he did that, the burden would shift to the Respondents to justify the impact as a bona fide reasonable justification. If the impact is justified, there is no discrimination.
[88] The first allegation I consider is that Ms. M racially profiled Mr. Chow. I find Mr. Chow has no reasonable prospect of proving that Ms. M racially profiled him.
[89] Mr. Chow argues that Ms. M racially profiled him when she confirmed his identity based on a student’s description of his physical appearance. He also argues that the Board’s discussion of the student’s feedback constituted a performance review, which was adverse treatment connected to his race. The Respondents dispute this and argue that Mr. Chow has no reasonable prospect of proving a connection between Ms. M’s conduct and Mr. Chow’s protected characteristics.
[90] Racial profiling is a form of race-based discrimination: Radheshwar v. New Westminster Police Board and another, 2025 BCHRT 196 at para. 115. It involves the use of stereotypical assumptions about a person’s race or related characteristics as the basis for decision-making, investigation, or actions that affect that person: Radheshwar at para. 115.
[91] The Supreme Court of Canada has explained that racial profiling, in the policing context, “occurs when race or racial stereotypes about offending or dangerousness are used, consciously or unconsciously, to any degree in suspect selection or subject treatment”: R. v. Le, 2019 SCC 34 at para. 76. From these authorities, it is clear that racial profiling requires more than mere mention or description of a person’s race. It requires that race be used as the basis for stereotyping, targeting, or differential treatment.
[92] The student described the person they interacted with by reference to his physical characteristics, including that the person was of Asian descent, had black hair, and glasses. This was a physical description used to identify who the student had interacted with. The student was describing their experience with that person, not making assumptions based on racial stereotypes. Ms. M confirmed that based on the student’s description, the person must be Mr. Chow. Ms. M identified Mr. Chow based on the student’s physical description. As the Society’s only employee at the time, it seems Mr. Chow was the only person working at the Society at the time who could have fit the student’s description. Ms. M did not stereotype Mr. Chow or make assumptions about his behaviour based on his race. She simply confirmed his identity based on the description provided.
[93] I am not satisfied that Mr. Chow has a reasonable prospect of proving that race was used as a basis for stereotyping him or making assumptions about his behaviour. In his submissions, Mr. Chow argues that the Respondents made assumptions that he was curt based on racial stereotypes about Chinese men. There is no evidence before me that the student assumed Mr. Chow was curt because of his Asian descent, or that Ms. M or the Board assumed anything about Mr. Chow’s behaviour based on his race. The “curt” behaviour was the student’s report regarding their interaction with Mr. Chow. The student’s description included race as one of a few identifying features, alongside hair colour and the fact that he wore glasses. This is different from racial profiling, which involves targeting or stereotyping individuals based on race rather than their actual conduct. Therefore, I am not satisfied that this allegation has a reasonable prospect of success.
[94] Next, I turn to a related allegation. Mr. Chow says the Board discussed the student’s feedback and this discussion amounted to a performance review that adversely impacted him due to his protected characteristics.
[95] Mr. Chow argues that the Board’s discussion of the student’s feedback was adverse treatment connected to his protected characteristics. He argues that Ms. M reported the complaint to the Board the same week he informed her that her by-election nomination form was not accepted for filing, suggesting improper motivation. However, the student complaint was about Mr. Chow’s conduct. There is no allegation that the student made the complaint because of Mr. Chow’s race, that Ms. M reported it to the Board because of Mr. Chow’s race, or that the Board discussed it because of Mr. Chow’s protected characteristics. There is no reasonable prospect that the temporal proximity between Mr. Chow’s decision about Ms. M’s nomination form and her report to the Board would establish a connection to Mr. Chow’s protected characteristics.
[96] Moreover, it is not clear from Mr. Chow’s submissions that the Board’s discussion constituted a “performance review” in breach of his employment contract, or otherwise, which might take adverse treatment out of the realm of conjecture in some circumstances. Employers routinely receive and address complaints about employee conduct. This is a regular and expected aspect of managing a workplace: Gaucher v. Fraser Health Authority and others, 2019 BCHRT 243 at paras. 62-63; Reilly v. City of Vancouver and another, 2024 BCHRT 81 at para 40. It is not my task on this application to consider whether Mr. Chow has brought out of the realm of conjecture that the Respondents breached his contract, and I will not do so. However, I note that characterizing a discussion about a single complaint as a performance review and suggesting that his protected characteristics were a factor in the Board’s decision to discuss the complaint, does not take this allegation out of the realm of conjecture. In other words, there is no evidence that could support a finding that the Respondents were discriminating against Mr. Chow by discussing the complaint.
[97] There is no reasonable prospect that Mr. Chow could prove, on the basis of this allegation alone, that the Respondents breached s. 13.
3. Performance review
[98] There is no dispute that the Board conducted a review of Mr. Chow’s performance in March 2021. Mr. Chow characterizes this as a second performance review. I have explained above why there is no reasonable prospect Mr. Chow will prove the Board’s discussion of the student complaint was an adverse impact connected to his protected characteristics, including why I find there is no reasonable prospect he will prove that discussion was a performance review that amounted to an adverse impact connected to his protected characteristics.
[99] However, Mr. Chow takes issue with other aspects of the March 2021 performance review. As I understand his submissions, he says the performance review was unfair because it was imprecise, imposed new expectations on him, and the Board could not adequately answer his clarifying questions. For example, he says the review stated that the graduate students’ lounge was not “neat and orderly” without clarifying what this meant. He also says that the Board expected him to clean the graduate students’ lounge even though the Board had never required him to do so during his first five years of employment. He says the review stated he needed to “maintain the office to a higher standard of cleanliness and organization” without answering questions about how his office space was unorganized and dirty. Mr. Chow also takes issue with the review’s use of the word “rocky” in the following comment:
We also recognize your dedication to the grad society and to the grad students, however rocky the road may have been in the past and look forward to working alongside you to make the grad society better than ever!
[100] Mr. Chow argues that the Board’s performance review made assumptions and statements in the context of the COVID-19 pandemic increasing anti-Chinese discrimination, though he does not specify what assumptions the Board made.
[101] Under s. 27(1)(c), I find there is nothing in the materials before me capable of taking this allegation out of the realm of conjecture and explain why next.
[102] The parties disagree with the substance of the performance feedback and whether it was fair. However, I find there is no reasonable prospect the Tribunal could find as a fact that Mr. Chow’s protected characteristics were a factor in the feedback that was, or Mr. Chow perceived to be, negative. Employees and employers often disagree about the accuracy, fairness, or clarity of performance feedback. The performance review gave Mr. Chow the highest possible overall rating of “exceeds expectations.” While there were some areas identified for improvement, as is typical in any performance review, the overall assessment was positive. An employee may believe that criticism is unwarranted, unclear, or unfair. However, such disagreements do not, by themselves, establish discrimination. To establish discrimination, an employee must provide evidence that their protected characteristics are a “factor” in the adverse treatment: Francis v BC Ministry of Justice (No 3), 2019 BCHRT 136 at paras 282-290.
[103] Mr. Chow relies on social context evidence to say he has taken his allegation out of the realm of conjecture. He points out that the review was conducted during the pandemic at a time of increasing anti-Chinese sentiment. I have referred above to the Human Rights Commissioner’s report on hate during the pandemic and the rise in anti-Asian hate (as defined in that report). I accept that this is important contextual evidence. However, social context evidence is not enough to take specific allegations of discrimination out of the realm of conjecture. Evidence of discrimination against Mr. Chow specifically, even if it is circumstantial evidence, is required: Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Bombardier Inc. (Bombardier Aerospace Training Center), 2015 SCC 39 at para 88. In this case, Mr. Chow does not explain how the performance feedback was connected to anti-Chinese stereotypes or discrimination. I am unable to conclude, on the evidence before me, that Mr. Chow has a reasonable prospect of proving the content of the performance review or the process the Board employed had a nexus to Mr. Chow’s Chinese ancestry.
[104] I agree with the Respondents that there is no reasonable prospect that Mr. Chow will prove that this allegation, on its own, breaches the Code.
4. Ms. D.’s comments at the September 2021 Board meeting
[105] I next turn to whether Mr. Chow has any reasonable prospect of proving that Ms. M’s comments made at a Board breached the Code.
[106] Mr. Chow says Ms. M questioned the official death toll of the COVID-19 pandemic, stated that public health orders are civil liberty issues, and explained that COVID-19 vaccines are ineffective because vaccinated individuals still contracted COVID-19. Mr. Chow says this reminded him of the video Ms. M posted in the group chat. He says he felt traumatized. As I understand his allegation, Ms. M’s September 2021 comments, when viewed together with the November 2020 group chat, demonstrate a pattern of conduct connected to his protected characteristics and contributing to a toxic work environment. Ms. M does not deny she commented on the pandemic response at this meeting but says he took it out of context.
[107] I consider Mr. Chow’s argument that these two incidents, taken together, constitute discrimination. As I found above regarding the November 2020 video, there is no reasonable prospect Mr. Chow could prove that Ms. M’s posting of the video violated s. 7 of the Code. Ms. M’s September 2021 comments expressed skepticism about COVID-19 death tolls, public health measures, and vaccine efficacy. While Mr. Chow found them to be offensive and traumatizing, particularly in light of the earlier video, there is no reasonable prospect he could prove these comments were connected to his protected characteristics or constituted discriminatory treatment.
[108] Even accepting that Ms. M expressed conspiracy theories or skepticism about COVID-19, government responses, and vaccines, there is no evidence connecting these views to Mr. Chow’s race. Mr. Chow has not pointed to any evidence that Ms. M’s comments were directed at him because of his protected characteristics, that they referenced Chinese people generally, or that – viewed in context of her group chat post – they created a hostile environment for him based on his protected characteristics. There is no reasonable prospect that the effect the Tribunal would find as a fact that the two incidents viewed together transforms even ill-informed opinions about the COVID-19 response into racial discrimination under the Code.
[109] I find there is no reasonable prospect Mr. Chow could prove this allegation amount to a breach of the Code under s. 27(1)(c).
5. Failure to implement a bullying and harassment policy
[110] The Respondents argue that Mr. Chow’s claim that the Society failed to implement a bullying and harassment policy has no reasonable prospect of success and involves the Society’s management of the workplace. On the basis of the facts, as alleged by Mr. Chow, I am not persuaded that this allegation has a reasonable prospect of success under s. 27(1)(c).
[111] Mr. Chow alleges that the Society failed to implement a policy to address discrimination but does not say anything further in this regard. Based on the evidence before me, there is no reasonable prospect he could prove this failure was connected to his protected characteristics.
[112] As set out in the background above, in December 2021, a Board member sent a draft bullying and harassment policy to Mr. Chow and asked him to distribute it to all Board members and provide his input. Mr. Chow provided his input, suggesting that the policy reference the Code and criminal harassment provisions. The policy discussions were occurring at the time same as the parties were renegotiating Mr. Chow’s employment contract, during which they had agreed to include a harassment clause that incorporated an anti-discrimination provision. However, the parties could not agree on other contract terms, particularly wages. The negotiations on both the contract and the bullying and harassment policy appear to have stalled alongside the broader contract impasse.
[113] The evidence demonstrates the Board’s willingness to implement a bullying and harassment policy with Mr. Chow’s input. It further shows the Board’s willingness to include harassment and discrimination provisions in Mr. Chow’s contract. The failure to finalize the policy appears connected to broader workplace issues and the contract negotiation impasse, rather than Mr. Chow’s protected characteristics. Mr. Chow has not pointed to any evidence showing that the Society’s failure to implement the policy was connected to his protected characteristics.
[114] I find there is no reasonable prosect Mr. Chow could prove the failure to implement the policy was connected to his protected characteristics. This allegation is dismissed.
[115] Mr. Chow argues that after the Tribunal served his complaint on the Respondents in April 2023, the Respondents continued to discriminate against him in several ways. I address them next.
6. The late-night meeting
[116] Mr. Chow alleges that on June 2, 2023, the Respondents discriminated against him by requiring him to attend a mandatory Board meeting at 10:00 pm. He says this was adverse treatment connected to his protected characteristics.
[117] As set out above, the June 2, 2023, meeting was described as mandatory for “Board Members and Staff.” This suggests the meeting was not unique to Mr. Chow – Board members were also required to attend. In this context it is difficult to understand how he was singled out.
[118] I am satisfied that Mr. Chow has not taken this allegation out of the realm of conjecture. The meeting was not specific to him, and there is no evidence connecting the scheduling of this meeting to his race.
[119] This allegation is dismissed.
7. The fear of the Chair’s anger
[120] On June 1, 2023, the Board Chair emailed Mr. Chow about another Society representative. Mr. Chow says he feared the Chair would subject him to hostility and anger because of how he talked about the other person in this email. Mr. Chow does not allege that the Chair directed any anger or hostility toward him. The Chair’s email was about another person’s conduct at the Society. Mr. Chow has not pointed to any evidence connecting the Chair’s email about another representative to his own protected characteristics.
[121] Mr. Chow’s subjective fear, does not, without more, establish an adverse impact or a connection to his protected characteristics. There is no reasonable prospect he could prove that an email about another person’s conduct constituted discriminatory treatment toward him based on race.
[122] This allegation is dismissed.
8. The back pay and employment contract issue
[123] Mr. Chow argues that the Society discriminated against him by withholding his backpay. He says the Society told him it would wait until after his complaint was resolved before addressing the issues regarding his back pay and employment contract. The Respondents say Mr. Chow has no reasonable prospect of proving this allegation.
[124] The difficulty with this allegation is that it is unclear from the materials what back pay Mr. Chow says he is owed and why. As set out above, the parties engaged in contract negotiations throughout 2020-2023, during which they could not agree on wages. In July 2021, the Society offered to increase his hourly pay from $19 to $22.23, but Mr. Chow declined this offer. In August 2023, Mr. Chow requested an increase to $29.23 per hour. In October 2023, the Board unilaterally increased his wage to $23.11 per hour, close to what they had offered in 2021.
[125] Mr. Chow has not particularized what backpay he claims was owed or provided evidence to support that he was entitled to backpay at a specific rate. Without clarity on the factual foundation for this allegation, I cannot assess the likelihood he could prove the fact he was owed backpay or whether there is a reasonable prospect he could prove his protected characteristics were a factor. Further, the evidence shows an ongoing wage negotiation impasse. The Board’s October 2023 email about deferring the backpay discussion refers to it being “a back and forth situation whenever we bring it up,” suggesting logistical challenges in resolving the issue, not discrimination.
[126] On this basis, I am satisfied that Mr. Chow has no reasonable prospect of proving his protected characteristics were a factor in any delay in resolving the backpay issue. This allegation is dismissed.
9. Continuing education fees
[127] Mr. Chow also alleges that the Society withheld his continuing education and this was discriminatory treatment. The Society says Mr. Chow did not seek approval for any continuing education.
[128] I agree with the Respondents. Beyond his bare assertion regarding the withholding of the continuing education fees, Mr. Chow provides no evidenced about this allegation. For instance, he provides no dates for the alleged withholding, no evidence of communication with the Society regarding his continuing education, and no explanation of how this alleged withholding was connected to his protected characteristics.
[129] I am satisfied, on the evidence before me, that Mr. Chow has no reasonable prospect of proving the Society withheld continuing education from him. This allegation is dismissed.
10. Withholding of last pay and late preparation of Record of Employment
[130] Mr. Chow argues that the Respondents discriminated against him by withholding his last pay until April 30, 2024, approximately six months after he stopped working. He says the Society also prepared his Record of Employment in March 2024, while he resigned from his employment in October 2023.
[131] Mr. Chow does not say how his protected characteristics were engaged in the withholding of his last pay and preparation of his record of employment. Even if I accept that he has taken out of the realm of conjecture that there was a delay and this was an adverse impact, I see no basis for an inference that Mr. Chow’s protected characteristics were a factor in that delay. Mr. Chow has not pointed to any evidence of nexus between the delay and his protected characteristics.
[132] Regarding the Record of Employment, Mr. Chow notes that the document he provided to the Tribunal is a corrected version because his last day of work was incorrectly recorded initially. This suggests administrative error rather than discriminatory treatment. It also suggests the Society prepared a timely Record of Employment that had to be corrected. Furthermore, as set out in the background above, the new Board Chair emailed Mr. Chow to explain that the Board was in a transition phase and had received signing authority which enabled them to issue his final payment. This explanation suggests that an administrative and governance transitions caused the delay in final payment. I am persuaded that the Respondents are reasonably certain to prove a non-discriminatory explanation for any delay that occurred.
[133] As stated above, I can only base my decision on the materials before me and not on speculation regarding what might be produced at the hearing: Chan at para. 77. Therefore, I find that Mr. Chow has no reasonable prospect of proving this allegation contravened the Code.
C. Is there no reasonable prospect Mr. Chow will prove he was constructively dismissed?
[134] Mr. Chow resigned from his employment effective October 31, 2023. He argues that his resignation amounted to constructive dismissal because the cumulative adverse treatment based on his race, colour, ancestry, place of origin, and mental disability created such an intolerable work environment that he could no longer remain the Society’s Executive Director. He says he resigned “due to the discrimination I have endured that started three years ago, as well as how current [Society] Board members have responded.”
[135] I am not persuaded that Mr. Chow has alleged facts capable of supporting a finding of constructive dismissal. It is uncontroversial that a termination of employment is an adverse impact: Sarba v. Ruskin Construction Ltd. and others, 2022 BCHRT 35, at para 37. Constructive dismissal is an employment law concept. In Sarba at paras. 36-37, the Tribunal summarized how constructive dismissal operates in the context of the Code:
A constructive dismissal occurs where an employer has not formally terminated an employee’s employment, but the employer’s conduct is treated as a dismissal or termination at law: Potter v. New Brunswick Legal Aid Services Commission, 2015 SCC 10 (CanLII), [2015] 1 SCR 500 at para. 30. The Tribunal recognizes that a constructive dismissal may amount to a termination of employment, within the meaning of s. 13 of the Code. It is uncontroversial that a termination of employment constitutes an adverse impact under the Code: Carney v. Pro-Can Construction Group, 2020 BCHRT 62 at para. 22.
In the human rights context, the Tribunal has determined that a constructive dismissal occurs when an employee’s work environment has become so hostile, toxic or poisoned, that an employee has no other reasonable choice but to leave that employment: Morgan-Hung v. Provincial Health Services and others (No. 4), 2009 BCHRT 371 [Morgan-Hung (No. 4) at paras. 457-473 (rev. on other grounds, Morgan-Hung v. British Columbia (Human Rights Tribunal) 2011 BCCA 122; Eva obo others v. Spruce Hill Resort and another 2018 BCHRT 238 [Eva] at paras. 151-153. In some cases, the Tribunal has concluded that the constructive dismissal of an employee was discriminatory: Morgan-Hung (No. 4) at paras. 458-473; Eva at para. 170.
[136] I am satisfied Mr. Chow has no reasonable prospect of proving his workplace was poisoned by discrimination such that he had to resign.
[137] Throughout this decision, I have addressed Mr. Chow’s individual allegations about incidents that he says made his workplace toxic. I was not persuaded that these allegations of discrimination, viewed on their own, had a reasonable prospect of success. Mr. Chow argues that the events in the complaint leading up to his resignation show a pattern of discrimination in the workplace. The evidence before me – considered as a whole – is not capable of supporting this conclusion. Mr. Chow’s argument is based on his perception that various individuals representing the Respondent were creating a toxic work environment for him. I do not doubt that the workplace issues Mr. Chow experienced were difficult for him or that he sincerely believed that he was the victim of discrimination. Though that may have been his genuine perception, it is not one that goes beyond conjecture based on the information and evidence before me on this application.
[138] I reach this conclusion even though Mr. Chow argues that the Society failed to respond reasonably and appropriately to the discrimination he was experiencing. Mr. Chow cites Young Worker v. Heirloom and another, 2023 BCHRT 137 and Bigam by MacDonald v. Board of Education of School District No. 23 (Central Okanagan) and others, 2024 BCHRT 288, to support his argument.
[139] An employer’s failure to respond reasonably and appropriately to allegations of discrimination may, itself, amount to a breach of the Code, even if the underlying conduct complained about is found not to be discrimination: Bigam at para. 47. In assessing whether an employer has responded reasonably and appropriately to allegations of discrimination, some factors the Tribunal may consider are whether the respondent had a proper understanding of discrimination, treated the allegations seriously and sensitively, and whether the complaint was resolved in a manner that ensured non-discriminatory environment moving forward: Jamal v TransLink Security Management and another (No 2), 2020 BCHRT 146 at para. 106.
[140] There can be no serious dispute that the Society knew Mr. Chow was unsatisfied with the workplace and believed it was unsafe from, on the evidence before me, sometime before December 2020. The evidence before me is not clear about just how clearly Mr. Chow communicated that his concerns were related to discrimination under the Code, as opposed to other kinds of workplace safety issues in the earlier years material to this complaint. Nonetheless, the Society knew he believed that lack of safety was connected to discrimination under the Code from at least the time it received notice of the complaint from the Tribunal in April 2023 but seems to have had some indication in September 2022 when the fact that Mr. Chow had filed his complaint came to the Society’s attention in the course of renewing its liability insurance.
[141] The question I must answer is whether I am satisfied Mr. Chow has no reasonable prospect of proving the Respondents failed to respond appropriately to his concerns. I do so assuming, without deciding, that Mr. Chow has taken out of the realm of conjecture that the Society knew his workplace concerns were related to discrimination from at least December 2020. For the reasons that follow, I find there is no reasonable prospect Mr. Chow will prove the Respondents failed to respond reasonably and appropriately.
[142] First, at the heart of Mr. Chow’s complaint was Ms. M’s conduct. I am satisfied that the Society is reasonably certain to prove that it addressed Mr. Chow’s concerns with her posting the video and comments about COVID at the Board meeting, when Mr. Chow told the Chair he was disturbed by them. There is evidence before me that the Chair spoke to Ms. M, and she did not make any further comments or posts of the sort Mr. Chow complains. That the Board Chair did not tell Mr. Chow about the conversation at the time it occurred is not enough to convince me the Tribunal would find the Respondents failed to respond appropriately.
[143] Second, the evidence before me shows that when Mr. Chow told Board members he felt unsafe, and that the Society was a toxic work environment, they responded with sensitivity and concern. They acknowledged his job was a challenging one, asked what they could do to help, and engaged in a process of try and establish a bullying and harassment policy. While the Society was unable to finalize such a policy, or a renegotiated contract that included a non-discrimination clause during Mr. Chow’s tenure, the Society was alive to the importance of them and tried to work with Mr. Chow to implement them. I am persuaded that, after a hearing on the merits, the evidence is likely to support a finding of fact that the Society took reasonable steps to ensure Mr. Chow’s complaints were addressed and the workplace was free of discrimination. In these circumstances, I am convinced that Mr. Chow has no reasonable prospect of proving the Society failed to respond appropriately to his concerns.
[144] I also note that it is not clear to me what Mr. Chow says the Respondents should have done, but failed to do, in order to respond reasonably to his concerns. I acknowledge that Mr. Chow is self-represented. I have kept that in mind as I have reviewed the materials before me. However, I am unable to identify, specifically, the basis for Mr. Chow’s allegation that the Society failed to respond appropriately to his concerns. There is no doubt that Mr. Chow was unsatisfied with his employer and felt strongly he needed to resign for his own well-being. This belief is not enough to persuade me that he has taken his allegation that the Society failed to respond appropriately to his concerns, out of the realm of conjecture.
[145] Finally, to the extent Mr. Chow relies on the Respondents’ complaint response as a basis to say the workplace was toxic and compelled him to resign, I note the following. Respondents have the right to dispute allegations and present arguments in their defence, including disputing whether a complainant has a protected characteristic and asserting a different version of the facts than the complainant. The Tribunal’s complaint process is an adversarial legal process, and these are often very difficult for the parties involved. Further, if a complainant believes a respondent has engaged in improper conduct during the complaint process, the appropriate remedy is to seek costs: s. 37(4) of the Code and Rule 31 of the Tribunal’s Rules. The purpose of an award of costs under this section is punitive and is intended to sanction and deter conduct which has a detrimental impact on the Tribunal’s processes or another party: Shahadat v. Northern School of Spa Therapies and others, 2023 BCHRT 20 at para 48. Mr. Chow has not applied for costs and, in my view of his arguments about the Respondents’ conduct, it is unlikely such an application would be successful. In any event, there is no reasonable prospect that the Tribunal would find as a fact that the complaint response to be the basis to conclude Mr. Chow’s workplace was made toxic by discrimination
[146] On the evidence before me, there is no reasonable prospect that at a hearing, the Tribunal could find that Mr. Chow was constructively dismissed, as that term is used in human rights law, or that he could meet the three-part Moore test in relation to his resignation. This allegation is dismissed under s. 27(1)(c).
V CONCLUSION
[147] The complaint is dismissed in its entirety under s. 27(1)(c). I grant Ms. M’s application and have anonymized this decision.
Ijeamaka Anika
Tribunal Member
Human Rights Tribunal