BC Human Rights Tribunal

Castro Mosquera v. North Horizon Immigration Consulting Inc., 2026 BCHRT 61

Date Issued: March 12, 2026
File: CS-003472

Indexed as: Castro Mosquera v. North Horizon Immigration Consulting Inc., 2026 BCHRT 61

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:

Estherly Castro Mosquera

COMPLAINANT

AND:

North Horizon Immigration Consulting Inc.

RESPONDENT

REASONS FOR DECISION

Tribunal Member: Beverly Froese

Counsel for the Complainant: Menachem Freedman

Counsel for the Respondent: Andrés Abogado

Date of Hearing: April 10-12, 2024 and February 26, 2025

Location of Hearing: By videoconference

Written closing arguments: May 20, 2025

I          INTRODUCTION

[1]               This case arises from an employment relationship and personal friendship that broke down because of a misunderstanding.

[2]               Before she went on maternity leave in January 2019, Estherly Castro Mosquera worked part-time as an Immigration Consulting Assistant at North Horizon Immigration Consulting Inc. Since 2018, Rita Benkhalti, the owner and CEO of North Horizon, and Ms. Mosquera had discussed Ms. Mosquera eventually working full-time, getting her immigration consulting license, and becoming Ms. Benkhalti’s “right hand”.

[3]               While Ms. Mosquera was on maternity leave, there was a misunderstanding between her and Ms. Benkhalti about what would happen when Ms. Mosquera returned to work. Ms. Benkhalti believed that Ms. Mosquera would work full-time Monday to Friday at the office. Ms. Mosquera, on the other hand, believed she would work Monday to Thursday with a flexible schedule that allowed her to work remotely, as she had before she went on maternity leave.

[4]               The misunderstanding came to light when Ms. Mosquera and Ms. Benkhalti met about three weeks before Ms. Mosquera was scheduled to return to work. When Ms. Mosquera told Ms. Benkhalti she could not work on Fridays because she did not have daycare for her children, Ms. Benkhalti assumed that Ms. Mosquera had deliberately lied to her and never intended to work on Fridays. When Ms. Mosquera asked for the same flexible schedule she had before she went on maternity leave, Ms. Benkhalti told her she was “demanding too much” and wanted “special privileges” that North Horizon’s other employees did not get “just because she is a mother”. After that meeting, Ms. Benkhalti treated Ms. Mosquera as though she would never be satisfied with the terms of her employment and that she expected to be a “co-owner” of North Horizon rather than an employee. After Ms. Mosquera asked legitimate questions about North Horizon’s new job offer, her employment was terminated.

[5]               In November 2020, Ms. Mosquera made a complaint alleging that North Horizon discriminated against her regarding her employment contrary to s. 13 of the Human Rights Code based on her sex and family status. Ms. Mosquera also made a complaint alleging that North Horizon retaliated against her contrary to s. 43 of the Code when it terminated her employment.

[6]               North Horizon denies discriminating and retaliating against Ms. Mosquera. North Horizon says this is not a discrimination case but rather “a failed employment negotiation”. It also says that its employment relationship with Ms. Mosquera broke down because Ms. Mosquera wanted to dictate the terms of her employment.

[7]               I have considered all the evidence presented by the parties and their closing submissions. This decision does not include a complete recitation of the evidence and submissions, only those necessary to come to my decision.

[8]               For the reasons that follow, I find that North Horizon discriminated – albeit unintentionally – against Ms. Mosquera based on her sex and family status. I also find that North Horizon did not retaliate against her contrary to s. 43 of the Code.

II       ISSUES AND DECISION

[9]               To determine whether North Horizon discriminated against Ms. Mosquera, I must decide the following issues:

a.    Did Ms. Mosquera experience any employment-related adverse impacts?

b.    If so, was there a nexus between Ms. Mosquera’s sex and family status and those adverse impacts?

[10]           With respect to Ms. Mosquera’s allegation that North Horizon retaliated against her, I must decide the following issues:

a.    Was North Horizon aware that Ms. Mosquera might make a complaint under the Code?

b.    Did North Horizon terminate Ms. Mosquera’s employment?

c.     If so, is there a sufficient connection between the termination and the prospect that Ms. Mosquera may file a complaint?

[11]           If I find that North Horizon discriminated and/or retaliated against Ms. Mosquera, I must decide what remedies are appropriate.

[12]           After considering the evidence and the parties’ closing submissions, I find that:

a.    Ms. Mosquera experienced employment-related adverse impacts in the way she was treated before her employment was terminated and when her employment was terminated;

b.    there was a nexus between those adverse impacts and Ms. Mosquera’s sex and family status;

c.     North Horizon did not retaliate against Ms. Mosquera contrary to s. 43 of the Code; and

d.    The appropriate remedy includes compensation for lost wages, expenses incurred because of the discrimination, and injury to Ms. Mosquera’s dignity, feelings, and self-respect.

[13]           Below are my reasons. I begin with the witnesses who testified at the hearing. Next, I set out some of the evidence and my findings where necessary. I then make addition findings and address the merits of the complaint in my analysis. The final section in these reasons addresses remedy.

III     Witnesses

[14]           Ms. Mosquera testified on her own behalf and called her husband as a witness. North Horizon called Ms. Benkhalti and two current employees as witnesses.

[15]           For all witness testimony, I start from the presumption that the witness is telling the truth: Hardychuk v. Johnstone, 2012 BCSC 1359 at para. 10. When making findings of fact, I determine which evidence is most plausible based on a balance of probabilities: Mr. S v. Cannae Holdings, 2018 BCHRT 47 at para. 12. When assessing which evidence is most plausible, I consider the credibility and reliability of the witness. I consider factors including the firmness of the witnesses’ memory, whether their evidence changed during cross-examination, whether the evidence seemed unreasonable, impossible, or unlikely, and whether they had a motive to lie: Bradshaw v. Stenner, 2010 BCSC 1398, aff’d 2012 BCCA 296, leave to appeal refused, [2012] S.C.C.A. No. 392 (Q.L.) at para. 186. I also consider whether supporting or contradictory evidence exists, and whether a witness’ evidence is internally and externally consistent: Harder v. Tupas-Singh and another, 2022 BCHRT 50 at para. 6. Overall, I consider whether each witness’s evidence was in “harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions”: Faryna v. Chorny, 1951 CanLII 252 (BCCA) at para. 11.

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

[17]           Overall, I am satisfied the witnesses testified truthfully to the best of their ability. There were several instances where Ms. Mosquera and Ms. Benkhalti gave conflicting evidence on significant issues. For the most part, I find that the conflicting evidence was the result of the misunderstanding between Ms. Mosquera and Ms. Benkhalti and not because their evidence was not credible or reliable. Further, memories surrounding certain events or conversations had understandably faded and some of the differences between the evidence of Ms. Mosquera and Ms. Benkhalti can be attributed to subjective interpretations and perceptions of the same incident.

IV    Evidence and findings of fact

A.    The parties

[18]           Ms. Mosquera lives with her husband and two children. She is from Columbia and immigrated to Canada in 2008. Before having her first child, Ms. Mosquera worked for a company in an administrative role. After her maternity leave from that job ended, Ms. Mosquera did not return because she had not been able to find full-time daycare and she did not feel there was room at the company for her to grow professionally.

[19]           Ms. Benkhalti is the owner and CEO of North Horizon. Ms. Benkhalti started North Horizon in 2014 “to offer immigration services to aspiring immigrants to Canada”. As the owner and CEO, Ms. Benkhalti makes all the company’s decisions, including with respect to marketing, hiring and training employees, consulting with clients, and preparing and filing immigration applications.

[20]           Sometime in 2017, Ms. Benkhalti was introduced to Ms. Mosquera. In the summer of 2017, Ms. Benkhalti told Ms. Mosquera she was looking to hire someone who speaks Spanish, English, and French and thought of her. Ms. Benkhalti testified that she knew Ms. Mosquera was on maternity leave with her first child and looking for an opportunity to work part-time. She also said she knew that Ms. Mosquera did not have immigration experience but did have administrative experience.

[21]           In September 2017, Ms. Mosquera started working at North Horizon in a permanent position as an Assistant in Immigration Consulting. Ms. Benkhalti knew that Ms. Mosquera only had daycare from Monday to Thursday and that she needed flexibility to start late or leave early so she and her husband could alternate daycare drop offs and pick ups. The terms of the employment contract Ms. Mosquera signed at the time [2017 Contract] were that Ms. Mosquera would work 15 hours per week distributed between Monday to Saturday and she could work from the office or remotely. At the time she started at North Horizon, Ms. Mosquera was on several wait lists for full-time Monday to Friday daycare.

[22]           Under the heading “Future Events”, the 2017 Contract states that North Horizon “reserves the right to make such reasonable revisions to the above terms as changing circumstances may require” [Future Events Clause]. Ms. Benkhalti testified that the Future Events Clause is one of the most important terms in North Horizon’s employment contracts because it means that North Horizon has the right to make changes to an employee’s terms of employment when circumstances require, for example if the company needs to restructure or go in a new direction.

[23]           As North Horizon’s Assistant in Immigration Consulting, Ms. Mosquera’s main duty was to assist Ms. Benkhalti with immigration applications, for example by communicating with clients to gather necessary information and documents. She also assisted with other administrative tasks, including translations for the company’s website and preparing accounting reports. After North Horizon’s full-time assistant left and the business got more clients, Ms. Mosquera started working more hours. By the end of 2018, Ms. Mosquera was working between 20 and 30 hours per week.

[24]           Ms. Benkhalti described Ms. Mosquera as a good employee who got her work done. She said Ms. Mosquera never had any performance issues, and she considered Ms. Mosquera to be trustworthy and reliable. In a reference letter referred to later in these reasons, Ms. Benkhalti wrote:

Mrs. Castro Mosquera demonstrated extremely high levels of competence from the very first day at work. She quickly learnt about the different kinds of immigration programs we offer our clientele and was able to work independently much faster than expected. Given her unshakable integrity, I was also able to trust her with the very important administrative task of monthly bookkeeping. In addition to communicating with clients, filling out immigration forms, and preparing supporting documents on a daily basis, Mrs. Castro Mosquera helped my company establish protocols and norms for best practices and efficient organization. It goes without saying that she soon became the most valuable member of my team.

[25]           During her employment at North Horizon, Ms. Mosquera never made any complaints about the terms of her employment or how she was treated. If Ms. Mosquera needed to start late or leave early, she let Ms. Benkhalti know in advance. Ms. Benkhalti did not recall ever denying Ms. Mosquera’s request to adjust her hours on a particular day.

[26]           In addition to their employer/employee relationship, Ms. Benkhalti and Ms. Mosquera were friends and socialized outside the office. Both Ms. Benkhalti and Ms. Mosquera shared details and felt comfortable talking to one another about their personal lives.

B.     Conversations in 2018 about Ms. Mosquera working full-time in the future

[27]           Sometime in 2018, Ms. Mosquera asked Ms. Benkhalti if there was a possibility she could work full-time at North Horizon in the future, meaning Monday to Friday. Ms. Benkhalti told Ms. Mosquera that the company did not have enough clients yet to justify a full-time position, but she would consider it once the business grew. Throughout the remainder of 2018, Ms. Benkhalti and Ms. Mosquera had ongoing conversations about Ms. Mosquera “climbing the ladder” in the immigration industry and taking on more responsibilities at North Horizon. Ms. Benkhalti supported Ms. Mosquera’s professional ambitions, and they talked about Ms. Mosquera taking a one-year immigration consulting course. Ms. Benkhalti told Ms. Mosquera she would be an asset to North Horizon if she was a certified immigration consultant. Ms. Benkhalti also told Ms. Mosquera that her goal was to eventually have a “right-hand” who had the ability and capacity to manage the office when she worked remotely.

[28]           As Ms. Mosquera was pregnant with her second child, she and Ms. Benkhalti agreed it would be best if she waited until the 2019 academic year to take the immigration consulting course. They also discussed the possibility of Ms. Mosquera moving into a full-time salaried position once she finished the course and became licensed by mid-summer or early fall of 2020.

C.     Ms. Mosquera goes on maternity leave

[29]           In early January 2019, Ms. Mosquera went on maternity leave. While Ms. Mosquera was on maternity leave, she and Ms. Benkhalti continued to communicate by phone or text, and Ms. Mosquera was invited to and attended company events.

[30]           During Ms. Mosquera’s maternity leave, North Horizon’s business grew. Ms. Benkhalti testified that she invested a lot of capital into the business for marketing and the company was getting many more clients. North Horizon hired two to four full-time employees, two of whom did the same duties that Ms. Mosquera did before she went on maternity leave. Ms. Benkhalti’s evidence was that none of the new employees were specifically hired to cover Ms. Mosquera’s maternity leave.

D.    The May 2019 Shopping Trip

[31]           In mid-May 2019, Ms. Benkhalti and Ms. Mosquera went shopping so Ms. Benkhalti could buy office furniture. Both Ms. Mosquera and Ms. Benkhalti testified that during this shopping trip, they had a positive conversation about Ms. Mosquera’s return to work after her maternity leave. There was, however, conflicting evidence on the critical issue of whether Ms. Benkhalti and Ms. Mosquera verbally agreed on this shopping trip that Ms. Mosquera would work full-time, meaning 9 a.m. to 5 p.m. Monday to Friday in the office, when she returned from her maternity leave.

[32]           Ms. Mosquera’s evidence was that while she and Ms. Benkhalti were shopping, they discussed the possibility of her getting a salaried position where she would be considered full-time and work four days a week. Ms. Mosquera did not explain who initiated this conversation or why she would be paid a salary rather than an hourly wage. Nor did Ms. Mosquera explain what she meant by being “considered” full-time if she was working four days a week.

[33]           Ms. Mosquera’s evidence was that while they were shopping, she and Ms. Benkhalti did not discuss specifics in terms of what her hours and schedule would be when she returned to work. She said her expectation was that she would work the same number of hours from Monday to Thursday that she did before her maternity leave and have the same flexibility in terms of working from the office or from home. She also said she expected to perform the same job duties, with the exception of taking on more immigration files because she would be taking the immigration consulting course. Ms. Mosquera testified that she believed she and Ms. Benkhalti would get together to talk about the specific details of her return to work sometime before she was scheduled to come back from maternity leave.

[34]           In her direct examination, Ms. Benkhalti testified that before the shopping trip, she and Ms. Mosquera had several conversations about Ms. Mosquera working full-time when she returned to work. Ms. Benkhalti said that she and Ms. Mosquera talked “often” about Ms. Mosquera working full-time when she returned and that by the time they went on this shopping trip, they had reached a “pretty set” verbal agreement. In cross-examination, Ms. Benkhalti said that she and Ms. Mosquera “confirmed” their verbal agreement during this shopping trip.

[35]           For the following reasons, I prefer Ms. Mosquera’s evidence on this point and find that she and Ms. Benkhalti did not make a verbal agreement on this shopping trip that Ms. Mosquera would return to work full-time.

[36]           First, Ms. Mosquera’s evidence is consistent with the only contemporaneous documentary evidence produced regarding her return to work after her maternity leave. In April 2019, about a month before the shopping trip, Ms. Benkhalti wrote a reference letter to UBC in support of Ms. Mosquera’s application to enroll in the immigration consulting certificate course. In that letter, Ms. Benkhalti wrote:

[Ms. Mosquera] is currently on maternity leave and I am eager to welcome her back in my company when she will be ready to work again.

I have offered to Mrs. Castro Mosquera to continue working with me on a part-time basis while she studies and on a full-time basis as a licensed consultant when she receives her license. I believe that this is a win-win situation for both my company and Mrs. Castro Mosquera to continue growing and prospering within this industry.

[37]           Second, Ms. Mosquera’s evidence is consistent with her uncontroverted evidence about the difficulties she faced finding Monday to Friday daycare. It does not make sense that Ms. Mosquera would have only secured childcare from Monday to Thursday had she agreed to work on Fridays. Further, her evidence is consistent with her subsequent actions, as will be explained in further detail below.

[38]           Third, in cross-examination Ms. Benkhalti testified that she and Ms. Mosquera talked once a month or once every two months about her returning to work full-time. However, other than the conversation during the May 2019 shopping trip, she could not recall any details of those conversations. Nor did Ms. Benkhalti give a reasonable explanation for why, about one month before the shopping trip, she wrote in her reference letter to UBC that Ms. Mosquera would work part-time until she finished her course and full-time after she became a licensed consultant. All Ms. Benkhalti said was that “things evolved” and changed between April and May 2019 but she did not elaborate on what that meant.

[39]           Fourth, North Horizon has previously made assertions that are inconsistent with Ms. Benkhalti’s evidence at the hearing. Specifically, a letter sent by North Horizon’s lawyer to Ms. Mosquera’s then-lawyer in March 2020 states that Ms. Mosquera first requested to work full-time in early March 2018 and that her insistence that Ms. Benkhalti alter her employment from part- to full-time “grew in frequency up to April 2019”. The letter also states that between early March 2018 and April 2019, Ms. Mosquera “insisted” and “demanded” to work full-time when she returned from maternity leave. In a November 2022 affidavit, Ms. Benkhalti said that “[t]hroughout the last 6 months of her maternity leave”, meaning after July 2019, Ms. Mosquera requested to work full-time when she returned from maternity leave. In a January 2024 affidavit, Ms. Benkhalti said that during the last six months of her maternity leave, she and Ms. Mosquera “often verbally discussed a strategy of her returning to work full-time to assist me with my practice”.

[40]           Fifth, in cross-examination Ms. Benkhalti did not recall if she expressly told Ms. Mosquera either on the shopping trip or on any other occasion that to her, working “full-time” means working Monday to Friday, 9 a.m. to 5 p.m. in the office. Ms. Benkhalti said she might have told Ms. Mosquera but it would not have been necessary to do so because Ms. Mosquera knew all of North Horizon’s other employees worked Monday to Friday, 9 a.m. to 5 p.m. from the office. There was no evidence before me, however, that indicates Ms. Mosquera knew, or should reasonably have known, the schedules of North Horizon’s other employees while she was on maternity leave.

[41]           Last, and most importantly, Ms. Benkhalti acknowledged in cross-examination that in retrospect, she could see there had been a misunderstanding between her and Ms. Mosquera after the May 2019 shopping trip about the terms of Ms. Mosquera’s employment when she returned from maternity leave.

[42]           Although I have found that there was no verbal agreement between Ms. Benkhalti and Ms. Mosquera that Ms. Mosquera would work full-time when she returned from maternity leave, I accept Ms. Benkhalti’s evidence that she genuinely believed there was. I find that is the only reasonable explanation that is supported by evidence and consistent with her subsequent actions.

E.     September 2019 to early January 2020

[43]           In September 2019, Ms. Mosquera started the immigration consulting course. The expectation was that she would take the examination and be certified by around August 2020.

[44]           In early December 2019, North Horizon entered into a new lease for office space large enough to fit one more full-time employee. Ms. Benkhalti testified that in her mind, that full-time employee was going to be Ms. Mosquera and that leasing larger office space was part of North Horizon’s effort to accommodate her return.

[45]           Ms. Mosquera was initially scheduled to return to work in January 2020. Sometime in December 2019, Ms. Benkhalti agreed to Ms. Mosquera’s request to extend her maternity leave by another month. Ms. Mosquera testified that she wanted to extend her maternity leave until February so she could transition her second child into daycare and give Ms. Benkhalti the opportunity to move into North Horizon’s new office.

[46]           By early January 2020, Ms. Mosquera had arranged for her youngest child to attend the same daycare her older child attended from 8:30 a.m. to 5 p.m. on Mondays to Thursdays. By that time, Ms. Mosquera had also secured a parking spot closer to North Horizon’s office because her husband no longer worked in the same area. She was still on wait lists for full-time Monday to Friday daycare.

F.      January 18, 2020 Meeting

[47]           On January 18, 2020, Ms. Mosquera and Ms. Benkhalti met to discuss Ms. Mosquera’s return to work. It was at this time that they both realized they “were on completely different grounds” regarding what would happen when Ms. Mosquera returned to work. Ms. Benkhalti’s evidence, which I accept, was that she came to this meeting excited to discuss Ms. Mosquera’s return to work because they were finally putting their plan of Ms. Mosquera becoming her “right hand” into action. Ms. Mosquera’s evidence, which I also accept, was that this was the first time she learned that Ms. Benkhalti expected her to return to work full-time Monday to Friday in the office.

[48]           It is not clear from the evidence how the conversation started, but at some point Ms. Mosquera told Ms. Benkhalti she could not work on Fridays because she did not have Friday daycare for her children. By her own admission, Ms. Mosquera did not “take it well” when Ms. Benkhalti asked her why she could not find Friday daycare because she had been on waiting lists for full-time daycare for years.

[49]           During their conversation, Ms. Mosquera also told Ms. Benkhalti that if she had to work at the office when the other staff were there, she would have to either start late so she could drop off her children or leave early so she could pick them up. Ms. Mosquera and Ms. Benkhalti have slightly different recollections of what was said next. Ms. Mosquera testified that she was taken aback when Ms. Benkhalti said she was “demanding too much” and did not “deserve” special privileges “just because she is a mother”.

[50]           Ms. Benkhalti does not dispute that she told Ms. Mosquera she was “demanding too much”. Her evidence was that Ms. Mosquera asked to be able to work from home whenever she wanted, including when her husband was travelling for work. Ms. Benkhalti said she wanted the staff to work together at the office as a team, and this would mean she would have to plan what was happening at the office based on Ms. Mosquera’s husband’s travel schedule. Ms. Benkhalti denied that she told Ms. Mosquera she did not “deserve” special privileges. Her evidence was that she told Ms. Mosquera it would not be fair if she were allowed the privilege of a four-day work week with flexible hours and the option to work from home because she is a mother when North Horizon’s other employees were working a set schedule five days a week at the office.

[51]           When asked how she remembered that Ms. Benkhalti told her in a conversation that occurred four years prior that she did not “deserve” special privileges “just because she is a mother”, Ms. Mosquera said that “a sentence like that marks you right in the face” and when someone tells you that, “it puts you aback”. When asked how she knows she did not use the word “deserve” during that conversation, Ms. Benkhalti said she never tells her employees whether they “deserve” something and only tells them what is expected of all employees. I prefer Ms. Mosquera’s evidence on this point. Her answer for why she specifically remembered that Ms. Benkhalti used the word “deserved” was credible and Ms. Benkhalti’s was not based on a specific recollection, but rather on what she believes she generally tells her employees. For that reason, I find it more likely than not that Ms. Benkhalti told Ms. Mosquera she did not “deserve” special privileges that other employees did not have “just because she is a mother”.

[52]           As I have found that Ms. Benkhalti genuinely believed that Ms. Mosquera would be returning to work full-time, I accept her evidence that she was surprised and “felt betrayed” when Ms. Mosquera told her she could not work on Fridays. For reasons explained in greater detail in my analysis, I find that rather than considering the possibility that there had been an honest misunderstanding between the two of them, Ms. Benkhalti assumed that Ms. Mosquera had deliberately lied to her about her intent to work Fridays and was backing out of their verbal agreement at the last minute.

[53]           Ms. Mosquera then told Ms. Benkhalti that it might be best if she went back to working the part-time flexible hours she had before she went on maternity leave. Ms. Mosquera testified that she could sense Ms. Benkhalti was disappointed with her suggestion. I accept Ms. Benkhalti evidence that she was hurt by Ms. Mosquera’s suggestion and did not know where to go from there. Ms. Benkhalti told Ms. Mosquera that she needed time to think and review options for her to return to work part-time.

G.    January 21, 2020 Meeting

[54]           The next day, Ms. Benkhalti told Ms. Mosquera that she wanted to meet again because she had some concerns about her return to work. On January 21, 2020, Ms. Mosquera and Ms. Benkhalti met at North Horizon’s office to discuss those concerns.

[55]           Ms. Mosquera described the atmosphere at the meeting as “tense”. She testified that during the meeting, Ms. Benkhalti questioned her mental health, motivation to come back to work, and priorities. Ms. Mosquera said that Ms. Benkhalti accused her of not fulfilling their agreement and told Ms. Mosquera she might not be the right fit to be her “right hand”. She testified that she felt hurt and angry that Ms. Benkhalti was questioning her availability for the job because she is a mother and needed flexibility.

[56]           Ms. Benkhalti denied telling Ms. Mosquera that she might not be the right fit to be her “right hand”. She testified that because Ms. Mosquera was not showing enthusiasm for returning to work, she was concerned that Ms. Mosquera no longer wanted to be her “right hand”. Ms. Benkhalti said that when she brought up projects that she and Ms. Mosquera had previous discussed and duties Ms. Mosquera could be trained to do when she returned to work, Ms. Mosquera did not participate in the conversation and said she could assign those duties to other employees.

[57]           It is not necessary for me to make a finding as to whether Ms. Benkhalti told Ms. Mosquera at this meeting that Ms. Mosquera might not be the right fit to be her “right hand”. It is sufficient for me to find that it was at this meeting that Ms. Benkhalti started to question whether Ms. Mosquera really wanted to be her “right hand” and Ms. Mosquera started worrying that Ms. Benkhalti did not think she was the right fit to be her “right hand”.

[58]           During the meeting, Ms. Benkhalti and Ms. Mosquera also discussed Ms. Mosquera attending counselling before and after she returned to work. Ms. Benkhalti and Ms. Mosquera gave conflicting evidence on this point. Ms. Mosquera says that Ms. Benkhalti told her that she had to see a counsellor as a condition of her return to work. Ms. Benkhalti denies that and says she and Ms. Mosquera agreed that Ms. Mosquera would see a counsellor before and after she returned to work.

[59]           Ms. Mosquera’s evidence was that she started crying and “fell apart” during the meeting because Ms. Benkhalti was questioning her motivation and future at the company. Ms. Mosquera testified that although she was open to counselling at some point in the future, she was not ready to see a counsellor at that time. Ms. Mosquera’s evidence was that “it felt like a punishment” for her to go to counselling when she was not ready to talk about what she might want to talk about with a counsellor. She also said she felt overwhelmed by the way Ms. Benkhalti was using their personal friendship in a professional setting.

[60]           Ms. Benkhalti’s evidence was that Ms. Mosquera was very upset and cried a lot during this meeting. She said Ms. Mosquera told her she was going through personal issues and was stressed about transitioning from maternity leave to the workplace. Ms. Benkhalti said she told Ms. Mosquera they needed to address the situation because as an employer, North Horizon has a legal obligation to offer support to an employee who is showing signs that they are dealing with stress. Ms. Benkhalti also said she knew that Ms. Mosquera had seen a counsellor in the past when she was dealing with stressful situations in her life and she told Ms. Mosquera that North Horizon’s medical plan covers counselling and therapy so it would not be a financial burden on her.

[61]           I accept Ms. Mosquera’s evidence that she did not want to see a counsellor at that time. However, as I explain below, I find it was reasonable for Ms. Benkhalti to believe that she and Ms. Mosquera mutually agreed that Ms. Mosquera would see a counsellor before and after she returned to work.

[62]           In her direct examination, Ms. Mosquera testified that she was careful in what she said to Ms. Benkhalti at this meeting because she felt like her job was on the line. She did not deny that she agreed to go to counselling at this meeting but said she only did so because she felt like she needed to do whatever Ms. Benkhalti asked to be able to return to work. In cross-examination, Ms. Mosquera acknowledged that she had previous told Ms. Benkhalti things about her personal life that would have led Ms. Benkhalti to believe that she wanted to go to counselling at that time. Her evidence was consistent with Ms. Benkhalti’s uncontroverted evidence that she supported Ms. Mosquera in the past when Ms. Mosquera was dealing with stressful circumstances.

[63]           Ms. Benkhalti’s evidence is also consistent with the contemporaneous documentary evidence, specifically an email that Ms. Mosquera sent to Ms. Benkhalti sometime after their meeting. In that email, Ms. Mosquera said:

Following the meeting we had this Tuesday regarding the steps I need to take in order to work. I’ve been taking into consideration everything you’ve said. We have agreed in the fact that I want to go back to work, that I need to take care of myself and that I should look into my priorities in order to provide the best when I’m at the office. I’d like to thank you to make me take care of myself!

[64]           Ms. Mosquera’s evidence was that she sent this email because after her previous two meetings with Ms. Benkhalti, she realized that their relationship was falling apart. She said she sent the email because she felt she needed to say what she thought Ms. Benkhalti wanted to hear so Ms. Benkhalti would have some confidence in her when she returned to work. While I accept Ms. Mosquera’s explanation, the email supports Ms. Benkhalti’s evidence that she did not unilaterally impose a counselling condition on Ms. Mosquera’s return to work.

[65]           At the end of the meeting, Ms. Benkhalti and Ms. Mosquera agreed that Ms. Benkhalti would prepare a new employment contract that would “more or less” reflect Ms. Mosquera’s employment before she went on maternity leave. In late January 2020, Ms. Benkhalti agreed to Ms. Mosquera’s request to temporarily reduce her hours per week from 32 to 28 so she could work on her course and schedule time for counselling sessions.

H.    New Employment Contract

[66]           On Monday, January 27, 2020, Ms. Benkhalti emailed Ms. Mosquera an employment contract for a position as Assistant in Immigration Consulting [2020 Contract]. Key terms in the 2020 Contract were that:

·       the employment start date was February 3, 2020 and “the offer of employment is permanent in nature”;

·       especially during the first 3 months and until finishing her course, Ms. Mosquera would have a flexible schedule of up to 32 hours per week distributed between Monday and Thursday;

·       The “preferred schedule agreed to” was 9:30 a.m. to 5:30 p.m. on Mondays and Thursdays, 7:30 a.m. to 3:30 p.m. on Tuesdays, and 9:30 a.m. to 1:30 p.m. on Wednesdays;

·       Ms. Mosquera could “diminish these hours due to personal circumstances”, including “last minute, unplanned emergencies”;

·       Ms. Benkhalti and Ms. Mosquera would meet every three months to evaluate her schedule, hours of work, and salary; and

·       the Future Events Clause.

[67]           Under the heading “Special Considerations”, the 2020 Contract stated:

In order to ensure the most productive and positive professional development of the employee, the employer requested that the employee:

·       Express her interest in returning to work and to participate in long-term projects with the company. This was done during a face-to-face meeting on January 21st 2020.

·       Seek professional support through counselling/psychologist appointment for a duration of 6 months. The employee may choose to use the company’s extended health benefits that allow $500 per year for psychologists and 24/7 free phone counseling.

·       Attends one session prior to starting work. This session has been scheduled for the first day of employment, February 3rd 2020.

[68]           In her email attaching the 2020 Contract, Ms. Benkhalti wrote:

I am sending you an offer of employment that also summarizes what we have been discussing in terms of schedules and other considerations. You can review it, let me know if you think I missed something. You can sign it using PDF SIGN, we will each get the final copy.

[69]           Ms. Benkhalti’s evidence was that the 2020 Contract reflected what she and Ms. Mosquera discussed at the January 21, 2020 meeting and Ms. Mosquera’s request for a temporary reduction in hours per week. She said that even though the 2020 Contract was very similar to the 2017 Contract, the company’s circumstances had changed since Ms. Mosquera went on maternity leave. Specifically, Ms. Benkhalti said the team had grown, there was a need for Ms. Mosquera to be regularly present in the office for training and team building, and she needed to know when Ms. Mosquera would be in the office.

[70]           Ms. Benkhalti described the 2020 Contract as an “extremely generous agreement” that was tailored to Ms. Mosquera’s needs. Ms. Benkhalti said the negotiations she had with Ms. Mosquera about her return to work were “beyond generous” and she had never sat down with another employee as many times as she did with Ms. Mosquera to review what they wanted regarding their employment. Ms. Benkhalti’s evidence, which Ms. Mosquera did not dispute, was that none of North Horizon’s other employees had the same flexibility to choose their start or end times on a particular day. Ms. Benkhalti testified that because she and Ms. Mosquera had already discussed everything that needed to be discussed, from her perspective the 2020 Contract was “non-negotiable”.

[71]           Ms. Mosquera testified that she had concerns about the 2020 Contract and there were aspects that she did not understand. Specifically, from her perspective, the 2020 Contract seemed like she was starting a new position because it had a start date rather than a return-to-work date, and she was not certain whether the requirement to meet every three months for an undetermined period of time meant she would be on some kind of probationary period. Ms. Mosquera also said that one of the duties she had before she went on maternity leave, namely translating documents in French, was not included in the 2020 Contract. Last, she said that the “Special Considerations” in the 2020 Contract were never in the 2017 Contract.

[72]           Shortly before 8 p.m. on the evening of January 31, 2020, the Friday before she was scheduled to return to work, Ms. Mosquera sent the following email to Ms. Benkhalti:

Thanks for sending me this [2020 Contract]. I have a few questions and/or comments regarding the following sections:

·       In “Benefits and vacation”, would it be good to mention the 3 sick days you mentioned in our meeting this month?

·       In “Special Considerations”, I’d like to leave just counselling and remove “/psychologist” as this last one may imply or be interpreted as mental illness which is not my case.

·       In “Title and position” you mention translating documents in English and Spanish. French would no longer be required?

Now regarding the overall contract:

1. I suppose this contract is going to supersede the original one?

2. I noticed that we’ll be meeting every 3 months, is this a special consideration due to the nature of my employment? or is there a probation period?

3. For most of the contract, you mentioned that changes will be made upon mutual agreement, but in “Future events” you say that the company “Reserves the right to make such reasonable revisions to the above terms”. Since this is a mutual agreement between the two of us, would any changes on the contract should [sic] be done upon mutual agreement?

Thank you in advance for your time regarding these questions and I’m looking forward to hearing from you.

[73]           Ms. Mosquera’s evidence was that she sent this email because Ms. Benkhalti said in her email that she could let her know what she thought of the 2020 Contract. Ms. Mosquera said that the purpose of her email was to make sure she understood everything in the 2020 Contract before she signed it. She also said that because her relationship with Ms. Benkhalti was falling apart after their previous two meetings, she was afraid that if she did not understand the terms of the 2020 Contract, she might be “arbitrarily fired at any given moment”. Ms. Mosquera said that when she sent the email, she was being cautious and in “protective mode” to make sure she understood what was expected of her.

[74]           Ms. Benkhalti testified that when she read Ms. Mosquera’s email, she had feelings similar to those she felt when Ms. Mosquera told her she was not going to work full-time when she came back from maternity leave. Ms. Benkhalti testified that she thought the 2020 Contract was “perfect” for Ms. Mosquera and now Ms. Mosquera was asking questions that again made her consider whether Ms. Mosquera really wanted to come back to work. Ms. Benkhalti’s evidence was that she was particularly alarmed about Ms. Mosquera inferring in her email that she wanted unilateral control over the terms of her employment. Ms. Benkhalti testified that from her perspective as a business owner, she provided a job offer to Ms. Mosquera that gave her everything she asked for, including flexibility to review her schedule in three months, only for Ms. Mosquera to send an email on the Friday night before she was to return to work that listed things she did not agree with and asked questions about the “overall contract”. Ms. Benkhalti said that what mattered to her at that point was that Ms. Mosquera had not signed the 2020 Contract and was questioning the Future Events Clause, which to her is the core of the employer/employee relationship.

[75]           Ms. Benkhalti testified that the first thing she thought when she read Ms. Mosquera’s email was that Ms. Mosquera could not come to work on Monday because she had not signed the 2020 Contract and had expressed concerns about a fundamental part of the employer/employee relationship. Ms. Benkhalti also said that the problem for her was not that Ms. Mosquera was asking questions about the 2020 Contract, but that Ms. Mosquera seemed to expect an immediate response. She testified that Ms. Mosquera’s questions were too much for her to answer on a “whim” on a Friday night and she did not want to respond to them until she received legal advice. In cross-examination, Ms. Benkhalti characterized Ms. Mosquera’s questions and comments as “demands” but later said that regardless of whether Ms. Mosquera was asking a question or making a demand, she could not respond until she obtained legal advice. I accept Ms. Benkhalti’s evidence that the only “demand” or “request” she really took issue with was Ms. Mosquera’s question about the language in the Conditions of Employment Clause and the Future Events Clause.

[76]           About two hours after receiving Ms. Mosquera’s email, Ms. Benkhalti sent her the following reply:

Unfortunately it is now Friday night and we cannot engage in negotiations of terms of employment over the weekend. I have to cancel that agreement. Therefore, you cannot start work on Monday February 3^rd.

Due to the special nature of the terms of employment you are asking for, I must first speak to a lawyer and get a proper legal opinion about the correct way for me to formulate an offer of employment that will be suitable for both the company needs in short and long-term as well as considering your requests.

The previous agreement we had made prior to your maternity leave is naturally canceled since you were unavailable to work within the terms of that agreement.

I will have to contact you again once I have spoken to a lawyer about this situation as it is beyond my area of expertise and I take labour rights extremely seriously and would not want to do anything legally inappropriate to you, to other employees or to my company.

I shall resolve this issue before the end of the month. As you know we just moved into a new office and I have many other issues to resolve.

[77]           In cross-examination, Ms. Benkhalti said the “previous agreement” she referred to in her email was the 2017 Contract. When asked why Ms. Mosquera was not able to work within the terms of 2017 Contract, Ms. Benkhalti said it was because Ms. Mosquera questioned the Future Events Clause and asked for a specific schedule based on her family’s needs and her studies rather than her previous flexible hours.

[78]           Ms. Mosquera testified that she was “very surprised” by Ms. Benkhalti’s response. She said she was not trying to renegotiate the terms of her employment, rather she wanted to make sure she understood the terms of the 2020 Contract before she signed it. Ms. Mosquera also said she did not agree with Ms. Benkhalti that she was unavailable to work within the terms of the 2017 Contract and she was confused by the phrase “special nature of your employment”. Ms. Mosquera testified that she was confused and frustrated by not being allowed to return to work that Monday because she thought she had done everything that was required of her to be able to go back to work. Ms. Mosquera said she did not understand why she needed to sign a new employment contract before she could return to work and that all she wanted to do was return to the same position she had before she went on maternity leave. Her expectation after she received Ms. Benkhalti’s email was that Ms. Benkhalti would answer her questions and she would return to work.

[79]           About half an hour after receiving Ms. Benkhalti’s email, Ms. Mosquera sent her the following response:

I apologize if this is how you feel. I’m by no means trying to re-negotiate the terms of the agreement you sent. I’m just making sure I fully understand. Hence the questions.

I’m very confused by this email. I’m ready to return to work on Monday as we previously agreed. I’m available to discuss this weekend. If that’s not possible, I hope we can speak on Monday morning.

[80]           About 10 minutes later, Ms. Benkhalti sent the following reply:

Estherly at this point I need to make sure all of our talks about employment are first reviewed by a lawyer because as the employer I am the one who is at risk if I suggest or agree to anything without knowing the legal implications.

I like flexibility, but even if my intentions are to have an overall win-win agreement, I am becoming aware that I could make a mistake simply through ignorance.

I believe I have the answers to all your questions, but if I am mistaken, I cannot take that risk.

I am sorry, but I cannot have you start on Monday because, from our back and forth, I now have many questions that I need a lawyer to answer first.

[81]           On Monday, February 3, 2020, Ms. Mosquera emailed Ms. Benkhalti and said:

I hope you had a great weekend.

I’m just checking in after our emails on Friday. I remain available to return to work.

[82]           On February 5, 2020, Ms. Benkhalti sent the following reply:

I would like to update you on the situation: I have a meeting with a lawyer next week to review the terms of employment that can be offered to you through part-time or per-hour pay.

I am also reviewing the type of position that can be given to you based on the schedule you require. Originally, I needed to train someone who would become my “right-hand” in the business. I am no longer convinced that this is the ideal position for you, so I have to re-assess what your position at the company should be. This is something I will have to explain in person, but I need to give you a heads up about it.

In any case, I will be working with the lawyer to ensure I proceed appropriately with your contract and any other obligations the company has to you.

Of course, you are also free to look for other opportunities elsewhere.

I hope you understand this is done to preserve a good relationship between us.

[83]           Ms. Benkhalti testified that she sent this email because she knew that Ms. Mosquera needed answers, and she thought it was fair to let Ms. Mosquera know what was happening. She also said that because Ms. Mosquera was not happy with the 2020 Contract, she needed to reassess the situation and consider whether North Horizon was the best place for Ms. Mosquera to work. Ms. Benkhalti said that the “back and forth” Ms. Mosquera had shown did not demonstrate the commitment and reliability she needed to see from her and she needed to consider whether she could trust Ms. Mosquera anymore and train Ms. Mosquera to be her “right hand”. Ms. Benkhalti said she did not know at the time if Ms. Mosquera was really committed to eventually working full-time. She also said she did not know if Ms. Mosquera would accept being a subordinate of the company or whether she would somehow consider herself to be a “co-owner”. Ms. Benkhalti testified that she told Ms. Mosquera she was free to look for other job opportunities because she did not know if Ms. Mosquera would continue to work for the company and she still needed time to get legal advice.

[84]           Ms. Mosquera testified that she took Ms. Benkhalti telling her she was free to look for other job opportunities as meaning she might not come back to North Horizon. Ms. Mosquera said her expectation to this point had always been that she would return to work with the same flexibility she had before and work toward becoming Ms. Benkhalti’s “right hand” and now Ms. Benkhalti was expecting her to do something different.

[85]           Sometime between receiving Ms. Benkhalti’s email and the evening of February 10, 2020, Ms. Mosquera sent a “without prejudice” email to Ms. Benkhalti that was not admitted into evidence. The only evidence before me was that in her email, Ms. Mosquera raised “human rights concerns” or “human rights violations”.

[86]           On February 10, 2020, Ms. Benkhalti sent the following email to Ms. Mosquera:

[A]s I explained several times, I have been obliged to seek legal advice on how to offer you a legally adequate job offer considering your requests were different than the agreement we had previously settled and went beyond a usual employment agreement. You also made new requests every time we tried to reach an agreement, so I needed to better understand the limits of your demands and my suggestions and permitted by law. Since you emailed me on the Friday prior to our start date, past 5 pm, with more questions and concerns about the contract, it became evident that I had to seek legal advice to properly answer you and that beginning work the following Monday, February 3^rd, would not be responsible as we would not have reached an agreement yet. This is why I needed time to see a lawyer. My intention has always been to create a working environment that fits your lifestyle and to offer you options that were possible under the law. This includes options such as a different contract, different responsibilities that would be less demanding, a flexible schedule and if you did not agree, an exit plan that would provide all the legal payments owed to you. These options must be determined with supervision of a lawyer.

I am disappointed at reading your email since you have demonstrated that you do not trust my good intentions and somehow are trying to intimidate me with your accusations. I do not understand why you expected the worst of me, when I have always tried to accommodate to your needs, including waiting one more month before your supposed start date after maternity leave (just one example of many). I have never given you a reason to believe that I would act unfairly to you. I wish you had been a little more patient, as I told you last week I would meet with a lawyer this week.

I will answer you and your new concerns once I finalize meeting with my lawyer.

[87]           Ms. Mosquera testified that after she read Ms. Benkhalti’s email, she lost hope that she would return to work at North Horizon.

I.       Ms. Mosquera’s Employment Ends

[88]           Sometime after sending her email or in the morning of February 11, 2020, Ms. Benkhalti met with her lawyer. Ms. Benkhalti testified that she had two main questions she wanted to ask her lawyer. The first was what happens when an employee does not want to sign an offer of employment the business day prior to their start date. The second was what happens when an employee wants to remove the Future Events Clause and if it is acceptable for an employee to expect there to be mutual agreement on the terms of their employment. Ms. Benkhalti also testified that at the time she met with her lawyer, she was not certain if Ms. Mosquera was still considered to be an employee of North Horizon.

[89]           During the hearing, I made a ruling that during her direct examination, Ms. Benkhalti had waived solicitor-client privilege regarding the legal advice she received regarding Ms. Mosquera’s employment. It is not necessary for me to set out in detail what information Ms. Benkhalti did or did not provide to her lawyer about the situation or what she and her lawyer discussed when they met. It is sufficient for the purposes of this decision to say that Ms. Benkhalti did not discuss with her lawyer the option of answering Ms. Mosquera’s questions about the 2020 Contract, confirming with her that the Future Events Clause means North Horizon has the right to make changes to her employment “as changing circumstances may require”, and then let Ms. Mosquera decide whether she wanted to accept the 2020 Contract. Ms. Benkhalti’s evidence was that from her perspective, she and Ms. Mosquera had already negotiated the terms of the 2020 Contract and North Horizon was under no obligation to continue those negotiations after Ms. Mosquera said she wanted to have the terms of her employment mutually agreed to. She also said that North Horizon was not obligated to convince Ms. Mosquera to sign the 2020 Contract.

[90]           Ms. Benkhalti’s lawyer did not advise Ms. Benkhalti to end Ms. Mosquera’s employment. I accept Ms. Benkhalti’s evidence that after meeting with her lawyer, she decided to proceed on the basis that Ms. Mosquera had “repudiated” the 2020 Contract. After meeting with her lawyer, Ms. Benkhalti sent the following email to Ms. Mosquera:

This email is to inform you that as of tomorrow you are no longer an employee of the company North Horizon Immigration Consulting Inc. Under the BC Employment Standards Act, you have the right to receive 2 weeks of payment in lieu of notice. I am writing to let you know that you will be paid two weeks of wages as established in the agreement you signed.

It is important to mention that your return to work was delayed due to reluctance to agree to new terms of employment that you actually requested. The company made its best effort to reach the new agreement that would accommodate your needs; however, the company has no obligation under legislation or common law to agree to all the terms you demanded. Nevertheless, you will be receiving payment from Feb 3 to Feb 11 as a sign of good faith.

…

We thank you for the contribution you have made to the company.

[91]           Ms. Benkhalti described her email as North Horizon providing “closure” to Ms. Mosquera’s repudiation of the 2020 Contract.

V       Discrimination analysis

A.    The legal test to prove discrimination

[92]           In her closing argument, Ms. Mosquera distinguishes between “direct discrimination” and “adverse effects” discrimination. In Suen v. Envirocon Environmental Services and another (No. 3), 2020 BCHRT 188, the Tribunal described these different forms of discrimination the following way:

In some cases, discrimination may be “direct” where, for example, an employer treats an employee differently because of a protected characteristic. Direct discrimination generally arises from negative attitudes, stereotypes and biases relating to the protected characteristic. In other cases, discrimination may be indirect where, for example, an otherwise neutral workplace policy has an “adverse effect” on certain employees who share a particular protected characteristic: at para. 48.

[93]           Ms. Mosquera characterizes her complaint as being one of “direct discrimination” because she alleges she experienced employment-related adverse impacts connected to her sex and family status. In other words, as I understand it, Ms. Mosquera does not allege that the adverse impact arose due to a conflict between a work rule and a substantial family obligation. Rather, she alleges that North Horizon’s conduct was based, at least in part, on her sex and family status.

[94]           To succeed in her complaint, Ms. Mosquera must prove, on a balance of probabilities, that she experienced employment-related adverse impacts in which her sex or family status, or both, were factors: Moore v. BC (Education), 2012 SCC 61 at para. 33; Stewart v. Elk Valley Coal Corp., 2017 SCC 30 at para. 24. To be successful, Ms. Mosquera does not have to prove that her sex or family status, or both, were the only or overriding factors, only that they were factors: Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Bombardier Inc. (Bombardier Aerospace Training Centre), 2015 SCC 39 at para. 52; Stewart at para. 46.

[95]           I highlight here that to be successful, Ms. Mosquera does not need to prove that North Horizon intended to discriminate against her: Code, s. 2. I do so because in its closing argument, North Horizon refers to evidence presented at the hearing about how Ms. Mosquera’s family obligations were accommodated between the time she started working at North Horizon until she went on maternity leave. North Horizon also refers to the evidence of two of its female employees, one of them a single parent, who testified about the ways in which Ms. Benkhalti has supported them. Both of these witnesses testified that they have never felt discriminated against regarding their employment. North Horizon submits that all of this evidence undermines Ms. Mosquera’s allegations of discrimination.

[96]           I accept Ms. Benkhalti’s evidence that as a businessowner, she takes her legal obligations seriously, including her obligation to provide a discrimination-free work environment. I also accept her evidence that North Horizon’s staff over the years has been diverse and she has hired employees who are members of historically disadvantaged and vulnerable groups. The evidence at the hearing showed that before the events at issue, North Horizon was supportive of Ms. Mosquera’s family obligations and professional goals. The evidence of North Horizon’s current employees, one of whom is a single parent, also showed they feel supported at work. Having said that, human rights law is about impact, not intentions: Fenech v. PNI Media Inc. and another, 2023 BCHRT 120 at para. 61. The fact that a respondent did not intend to discriminate does not lessen the impact of the discrimination on a complainant: Champagne v. Synergy Day Spa and another (No. 2), 2025 BCHRT 174 at para. 69.

[97]           If Ms. Mosquera proves her case, then the burden shifts to North Horizon to justify its conduct based on a bona fide occupational requirement [BFOR]. If its conduct cannot be justified, then discrimination will have occurred: Moore at para. 33. I note here that North Horizon has not asserted a BFOR defence and I do not address it further.

B.     Ms. Mosquera’s protected characteristics

[98]           Ms. Mosquera alleges that North Horizon discriminated against her based on sex and family status. It is clear from Ms. Mosquera’s closing argument that she is not alleging that her sex, in and of itself, was a factor in any alleged adverse impacts. Rather, Ms. Mosquera alleges that her sex and family status are engaged because she “is female, had a child, was entitled to go on maternity leave to care for the child, and was returning from that leave when the events occurred”. This is sufficient to meet this part of the Moore test.

C.     Did Ms. Mosquera experience an employment-related adverse impact?

[99]           Ms. Mosquera alleges that she experienced several adverse impacts both before her employment was terminated and when her employment was terminated. In support of her position, Ms. Mosquera relies on LaFleche v. NLFD Auto dba Prince George Ford (No. 2), 2022 BCHRT 88. In that case, the Tribunal found that the complainant’s employer discriminated against her based on sex and family status when it removed her from her marketing manager position to an unknown position while she was on maternity leave, treated her in a humiliating manner, and then constructively dismissed her. Ms. Mosquera says that LaFleche is “highly instructive” and all the factors in that case that led the Tribunal to find the complainant experienced similar adverse impacts are present here, “but in an even more forceful manner”.

[100]       For the reasons explained below, I find that Ms. Mosquera experienced the following employment-related adverse impacts.

1.      The manner in which Ms. Mosquera was treated between January 18, 2020 and the time her employment ended

[101]       Ms. Mosquera says that like the complainant in LaFleche, she was treated in a humiliating manner by her employer when she was hoping to return to work after her maternity leave. In LaFleche, the complainant was told at a meeting with her employer while she was on maternity leave that she would not be returning to her marketing manager position because of a change in the company’s marketing strategy and because her employer was happy with her replacement’s performance. The complainant was also told that her duties would change significantly when she returned to work, but the company did not have another position to offer her. The Tribunal found that an adverse impact the complainant experienced at the meeting was feeling humiliated and grieving “the loss of a position that she built from nothing over two years”: at para. 50. The Tribunal also found that adverse impacts flowing from the meeting were that the complainant “felt distressed and nervous about money”, and she “lost sleep, her appetite, a sense of security, and enjoyment of her maternity leave”: at para. 50.

[102]       Similar to the Tribunal’s conclusion in LaFleche, I find that Ms. Mosquera experienced employment-related adverse impacts that I describe below. I find that these adverse impacts flowed from Ms. Benkhalti’s mistaken belief that Ms. Mosquera deliberated breached the terms of a verbal agreement they made during the May 2019 shopping trip.

[103]       There was no evidence that Ms. Benkhalti ever considered that there was an honest misunderstanding between her and Ms. Mosquera, and that Ms. Mosquera genuinely believed she would return to her pre-maternity leave position with a Monday to Thursday flexible schedule. Instead, for some reason Ms. Benkhalti assumed the worst of Ms. Mosquera. She assumed that Ms. Mosquera had deceived and betrayed her by hiding her true intention all along not to work on Fridays. Ms. Benkhalti assumed that Ms. Mosquera was trying to back out at the last minute from a verbal agreement that I have already found did not exist between them. Ms. Benkhalti made these assumptions even though she herself acknowledged in cross-examination that it was out of character for Ms. Mosquera to be deliberately deceptive and untrustworthy.

[104]       Ms. Mosquera came to the January 18, 2020 meeting expecting that she and Ms. Benkhalti would discuss her return to work with the same or similar flexible schedule she had before she went on maternity leave. She also expected they would discuss next steps in her working toward becoming Ms. Benkhalti’s “right hand”, as they had planned since 2018. Instead, when Ms. Mosquera told Ms. Benkhalti she could not work on Fridays because she did not have daycare coverage, Ms. Benkhalti questioned her efforts to find Friday daycare even though Ms. Mosquera had been on wait lists for full-time daycare for years. When Ms. Mosquera told Ms. Benkhalti that she needed flexible hours to do daycare pick ups and drop offs as she had before she went on maternity leave, Ms. Benkhalti told her she was “demanding too much” and wanting “special privileges” that North Horizon’s other employees did not have.

[105]       From the January 18, 2020 meeting on, the trust that Ms. Benkhalti previously had in Ms. Mosquera eroded. Despite Ms. Mosquera’s previous job history and studying to become a licensed immigration consultant while she was on maternity leave, Ms. Benkhalti questioned her motivation and commitment and doubted she was the right fit to be her “right hand”. Ms. Benkhalti put Ms. Mosquera in a precarious position of having to be careful in what she said because she felt her job might be on the line while at the same time doing what she could to restore Ms. Benkhalti’s confidence in her.

[106]       When Ms. Mosquera asked legitimate questions about the 2020 Contract, in particular about what, on its face, appears to be a conflict between the Conditions of Employment and Future Events Clauses, she was treated as though she were trying to renegotiate and either “demand” or “request” that the terms of her employment only be changed by mutual agreement. She was also treated as though she expected to be a “co-owner” of North Horizon.

[107]       That said, it was reasonable for Ms. Benkhalti to be confused and concerned when she received Ms. Mosquera’s January 31, 2020 email. During her testimony, Ms. Mosquera never explained why she did not raise her questions or comments with Ms. Benkhalti until the Friday evening before she was scheduled to return to work. It was also reasonable for Ms. Benkhalti to not want to answer Ms. Mosquera’s questions “on a whim”. I accept her evidence that as a businessowner, Ms. Benkhalti takes her legal obligations seriously and she wanted to make sure she did not give Ms. Mosquera answers that were legally binding on North Horizon without first obtaining legal advice.

[108]       However, the evidence does not support North Horizon’s assertion in its closing argument that Ms. Mosquera “attempted to redefine the employer-employee relationship on her terms” and “ultimately began to behave not as an employee, but as if she were a co-equal business partner entitled to shared decision-making authority”. During her testimony, Ms. Benkhalti never gave a reasonable explanation for why she thought Ms. Mosquera was trying to renegotiate the 2020 Contract. Nor did she give a reasonable explanation for why she interpreted what was clearly a question Ms. Mosquera had about whether changes to the terms of her employment should or would be done on mutual agreement as a “demand” or an expectation that she would be a “co-equal business partner” of North Horizon.

[109]       Ms. Mosquera expressly told Ms. Benkhalti in her January 31, 2020 email that she had questions and comments about the 2020 Contract. In her subsequent email, she expressly said she was not trying to renegotiate the 2020 Contract and that she was asking questions because she wanted to ensure she understood its terms. Further, there was no evidence indicating that Ms. Mosquera ever objected to the Future Events Clause, which had been in the 2017 Contract, or that she expected it to be removed from the 2020 Contract before she would return to work.

[110]       I accept that when Ms. Benkhalti drafted the 2020 Contract, she did not see a conflict between the Conditions of Employment Clause and the Future Events Clause. I accept her evidence that, to her, the Future Events Clause is fundamental to the employer/employee relationship and that in her mind, the Conditions of Employment Clause was not “an invitation” to Ms. Mosquera to have to agree to changes to the terms of her employment. However, just because Ms. Benkhalti did not see any confusion or conflict between the two clauses does not mean that Ms. Mosquera, or anyone else reading the 2020 Contract, might find the language confusing. In my opinion, it was reasonable for Ms. Mosquera to seek clarification before she signed the 2020 Contract. Read together, there is an apparent conflict between the Conditions of Employment and Future Events Clauses. The Conditions of Employment Clause says that the conditions of Ms. Mosquera’s employment “may be negotiated upon mutual agreement by both parties”. The Future Events Clause says that North Horizon “reserves the right to make such reasonable revisions to the above terms as changing circumstances may require”. It was also reasonable for Ms. Mosquera to ask Ms. Benkhalti directly about the apparent conflict rather than, as Ms. Benkhalti suggested at the hearing, get her own lawyer to explain it to her. Ms. Benkhalti was the one who drafted the 2020 Contract, so it only makes sense that she be the one to explain to Ms. Mosquera what she meant.

[111]       Last, despite Ms. Mosquera’s history of being a reliable, dependable, trustworthy, and productive employee, she was treated as though she was never going to be satisfied with her terms of employment and would repeatedly ask for or demand changes to her work schedule.

2.      Adverse impacts related to the 2020 Contract

[112]       Ms. Mosquera says she experienced adverse impacts when North Horizon tried to “impose” the 2020 Contract on her, which she says contained “significant unilateral changes to the employment relationship”.

[113]       The Tribunal has recognized that changing an employee’s job duties may constitute an adverse impact: LaFleche at para. 49. In LaFleche, the Tribunal found that removing the complainant from her manager position during her maternity leave and reassigning her to other work constituted an adverse impact: at para. 49. In this case, however, North Horizon did not try to “impose” the 2020 Contract on Ms. Mosquera. Ms. Benkhalti drafted the 2020 Contract based on her discussions with Ms. Mosquera and Ms. Mosquera’s request to temporarily reduce the number of hours she worked per week. Further, other than not listing translating documents in French, North Horizon did not make any significant or unilateral changes to Ms. Mosquera’s job duties, hours, or schedule in the 2020 Contract.

[114]       Ms. Mosquera also says that North Horizon tried to “erase her previous service at the company”. I disagree. There is no evidence that the reference in the 2020 Contract to Ms. Benkhalti and Ms. Mosquera meeting every three months to evaluate her schedule, hours of work, and salary every three months was intended to be some kind of probationary period. Ms. Mosquera herself was not certain what this reference meant, and I accept Ms. Benkhalti’s evidence that it meant she and Ms. Mosquera would meet every three months to discuss when she might be ready to work more hours based on her studies or other circumstances.

[115]       Ms. Mosquera further says that North Horizon imposed “a humiliating regime of counselling” on her. Although I have found it was reasonable for Ms. Benkhalti to believe that Ms. Mosquera agreed to attend counselling, I accept Ms. Mosquera’s evidence that she only did so because she felt she had to so she could return to work. In these circumstances, I find that requiring Ms. Mosquera to attend counselling before and after she returned to work constitutes an adverse impact.  

[116]       Last, Ms. Mosquera says she experienced an adverse impact when North Horizon refused to allow her to return to work and, in essence, put her on an unpaid suspension. In support of her argument, Ms. Mosquera cites Filice v. Complex Services Inc., 2018 ONCA 625 for the proposition that other than in exceptional circumstances, an unpaid administrative suspension, in and of itself, constitutes a constructive dismissal. I do not find Filice to be relevant in this case, as the respondent employee was on an administrative suspension without pay during an investigation into alleged theft in the workplace. However, I find that not allowing Ms. Mosquera to return to work as scheduled constitutes an adverse impact.

3.      Terminating Ms. Mosquera’s employment

[117]       Ms. Mosquera says she experienced an adverse impact when North Horizon terminated her employment. North Horizon denies that and says Ms. Mosquera’s employment ended because she repudiated her employment contracts. North Horizon’s position on this point is not clear. At the hearing, Ms. Benkhalti’s said that Ms. Mosquera repudiated a full-time job offer at the January 18, 2020 meeting and then repudiated the 2020 Contract on January 31, 2020 when she refused to sign it. In its closing argument, North Horizon says that Ms. Mosquera repudiated the employment relationship on January 31, 2020 when she refused to sign the 2020 Contract, demanded control over contract terms, and did not return to work. North Horizon also says that because Ms. Mosquera repudiated the 2020 Contract and the Future Events Clause was in the 2017 Contract, she repudiated the 2017 Contract as well.

[118]       In its closing argument, North Horizon says that Ms. Mosquera’s conduct “amounted to repudiation of the contract under Canadian law”. An employment contract is repudiated when either the employer or the employee breaches a contractual condition or “some other sufficiently important term of the contract so that there is a substantial failure of performance”: Potter v. New Brunswick Legal Aid Services Commission, 2015 SCC 10 at para. 144. Repudiation by an employee occurs “when an employee refuses to perform an essential part of his or her job duties in the future”: Roden v. Toronto Humane Society, 2005 CanLII 33578 (ON CA) at para. 46. If the employer “accepts” the repudiation, then the employment relationship is terminated “because the parties no longer agree on the fundamental terms of the contract”: Roden at para. 46; see also Potter at para. 144.

[119]       In the employment law context, for there to be repudiation, there must be an existing employment contract. The full-time job offer that North Horizon alleges that Ms. Mosquera repudiated at the January 18, 2020 meeting and the 2020 Contract were offers of employment, not existing employment contracts. Having said that, I consider whether, as North Horizon says, Ms. Mosquera “repudiated” those job offers and the 2017 Contract when she “demanded that all decisions with the employer be ‘mutually agreed’, challenged managerial discretion, and resisted any return to a subordinate position”.  

[120]       In its closing argument, North Horizon cites the following cases to support its position:

a.    Suen v. Envirocon Environmental Services and another (No. 3), 2020 BCHRT 188 for the principles that an employer can dismiss an employee who refuses a term of their employment, an employer is not obligated to allow an employee to set the terms of their employment, and an employee cannot refuse work and dictate the terms of their employment “because of childcare desire or preference”;

b.    Evans v. University of British Columbia, 2008 BCSC 1026 for the principle that return-to-work disputes relating to childcare logistics do not establish discrimination because an employee is expected to arrange childcare;

c.     Ziegler v. Pacific Blue Cross (No. 2), 2020 BCHRT 125 for the principle that it is not discriminatory for an employer to make changes to the terms of an employee’s employment, even when it interferes with the employee’s childcare obligations;

d.    Gao v. Minco Mining and others, 2010 BCHRT 204 for the principle that requiring an employee to work a standard work schedule is not discriminatory;

e.    Gould v. Hermes Electronics (1978), 1978 CanLII 3868 (NS SC) for the principle that an employee cannot demand that an employee change core job conditions as a prerequisite to work;

f.      Anderson v. Total Instant Lawns Ltd., 2021 ONSC 2933 for the principle that repudiation justifies terminating the employment relationship;

g.    Roden v. Toronto Humane Society, 2005 CanLII 33578 (ON CA) as an example of a justified dismissal;

h.    McCormick v. Fasken Martineau DuMoulin LLP, 2014 SCC 39, where the Supreme Court of Canada set out the legal test to determine whether there is an employment relationship; and

i.      Sparkes v. Enterprise Newfoundland, 1998 CanLII 18005 (NL CA) for the principle that conduct by an employee that undermines trust and confidence justifies the termination of their employment.

[121]       I find that the cases North Horizon cites regarding general legal principles are of limited assistance. Ms. Mosquera does not dispute that North Horizon has authority to change the terms of her employment or that she is expected to arrange childcare for her children. Nor does Ms. Mosquera argue that North Horizon is obligated to allow her to “dictate” the terms of her employment or that requiring her to work a standard schedule is, in and of itself, discriminatory.

[122]       The repudiation cases that North Horizon relies on are easily distinguishable on the facts. Specifically, in Gould, the Nova Scotia Supreme Court held that the plaintiff repudiated his employment relationship when he refused to perform his job duties unless his salary was increased. In Anderson, the Ontario Superior Court of Justice found that the plaintiff was not wrongfully dismissed because she repudiated her employment contract when she refused to return to work and perform her job duties unless certain conditions were met. In Roden, the Ontario Court of Appeal found that the appellant employees had repudiated their employment contracts by refusing to perform their job duties in accordance with their employer’s policies.

[123]       In this case, the evidence clearly established that Ms. Mosquera did not repudiate the 2020 Contract. Unlike the employees in the above cases, Ms. Mosquera never refused to report to work or perform any of her job duties unless certain conditions were met. To the contrary, Ms. Mosquera repeatedly and expressly told Ms. Benkhalti that she was ready to return to work. At no time did Ms. Mosquera “demand” that the terms of her employment be changed or that she be given unilateral authority over the terms of her employment before she would come back to work. All Ms. Mosquera did was ask valid questions of Ms. Benkhalti so she would fully understand the terms of the 2020 Contract before she signed it. At all times, Ms. Mosquera was ready and willing to return to work.

[124]       I further find that Ms. Mosquera did not repudiate a previous offer to work full-time. The evidence established that since 2018, Ms. Benkhalti and Ms. Mosquera talked about Ms. Mosquera eventually working full-time and becoming Ms. Benkhalti’s “right hand”. As I have already found that there was no verbal agreement between Ms. Benkhalti and Ms. Mosquera that Ms. Mosquera would return to work full-time, Ms. Mosquera could not have repudiated a job offer or an employment contract that did not exist.

[125]       Last, as I have found that Ms. Mosquera did not repudiate the 2020 Contract, including the Future Events Clause, I find that she did not repudiate the 2017 Contract.

[126]       Having found that Ms. Mosquera never repudiated any job offers or employment contracts she had with North Horizon, I go on to consider whether North Horizon terminated Ms. Mosquera’s employment. I find that it did. There is no dispute that termination of employment is an adverse impact under s. 13 of the Code: Rabinovich v. Chemainus Inn Management Services Inc. (No. 2), 2024 BCHRT 302 at para. 34; Eva obo others v. Spruce Hill Resort and another, 2018 BCHRT 238 at para. 92; Suen v. Envirocon Environmental Services (No. 2), 2017 BCHRT 226 at para. 35.

[127]       Between January 31 and February 10, 2020, Ms. Benkhalti told Ms. Mosquera that she would respond to her questions about the 2020 Contract after she met with her lawyer. After meeting with her lawyer, Ms. Benkhalti told Ms. Mosquera on February 11, 2020 that she was no longer employed with North Horizon. By the time she met with her lawyer, Ms. Benkhalti had already decided that North Horizon was under no obligation to continue negotiating with Ms. Mosquera or convince her to sign the 2020 Contract. After meeting with her lawyer, Ms. Benkhalti decided to proceed on the basis that Ms. Mosquera repudiated the 2020 Contract, which I have already found she did not.

[128]       Ms. Benkhalti testified that when it was time for Ms. Mosquera to come back to work, the company was in overdraft. She said that paying Ms. Mosquera’s wages would put the company into further debt. Ms. Benkhalti said that her personal responsibility for the company’s debts factored into her decision making about Ms. Mosquera and that every hiring decision she made had to be calculated on a long-term basis. Her evidence was that the only thing that mattered to her was her long-term vision for the company and that she has a “right hand” who is committed, reliable, trustworthy, and knowledgeable.

[129]       Ms. Benkhalti’s evidence was that as the owner and CEO of North Horizon, her role is to run the business with structure and a long-term plan that is supported by the company’s budget and her investments. Ms. Benkhalti decides who to hire, how she will train them, how they might move up in the company, and if they stay with the company. She testified that all of these issues were back on the table after Ms. Mosquera decided not to come back full-time, did not sign the 2020 Contract, and then questioned whether she should be a subordinate of the company.

[130]       Ms. Benkhalti’s evidence was that for several reasons, she decided not to make another job offer to Ms. Mosquera. Specifically, Ms. Benkhalti said that the trust between her and Ms. Mosquera was broken, nothing ever seemed good enough for Ms. Mosquera, Ms. Mosquera had put into question whether she was willing to be an employee who is subordinate to the company, and she was not certain if Ms. Mosquera would decide in the future that she could not work the schedule they agreed to.

[131]       In my opinion, all of this evidence establishes that North Horizon chose not to allow Ms. Mosquera to return to work and terminated her employment on February 11, 2020.

D.    Is there a nexus between the employment-related adverse impacts that Ms. Mosquera experienced and her sex and family status?

[132]       I now consider if there is a nexus between the employment-related adverse impacts that Ms. Mosquera experienced and her sex and family status.

[133]       Ms. Benkhalti’s evidence at the hearing was that none of her concerns about Ms. Mosquera had anything to do with her protected characteristics. Ms. Benkhalti said that all of her decisions and actions were the result of Ms. Mosquera having broken the trust between them. I have already found that the trust Ms. Benkhalti had in Ms. Mosquera was broken because she genuinely, but mistakenly, believed that Ms. Mosquera deliberately lied to her and tried to back out of their verbal agreement at the last minute.

[134]       In her closing argument, Ms. Mosquera says that the nexus between the adverse impacts and her protected characteristics is established by inference. The Tribunal recognizes that a finding of discrimination “may be based on circumstantial evidence, and in the inferences that are reasonable to be drawn from that evidence”: Okhrimchuk v. Domino’s Pizza and others (No. 2), 2025 BCHRT 37 at para. 45; see also Vestad v. Seashell Ventures Inc., 2001 BCHRT 38 at para. 44.

[135]       I now set out the factors that lead me to conclude that there was a nexus between the adverse impacts Ms. Mosquera experienced and her sex and family status.

[136]       First, the Tribunal has recognized that the timing of the termination of an employee’s employment may support an inference that their protected characteristic was a factor: Benton v. Richmond Plastics, 2020 BCHRT 82 at para. 59; Banfield v. Strata Geodata Services Ltd., 2021 BCHRT 142 at para. 168. In this case, all of the adverse impacts occurred during the time Ms. Mosquera was getting ready to return to work from maternity leave.

[137]       Second, similar to the Tribunal’s finding in Weihs v. Great Clips and others (No. 2), 2019 BCHRT 125, I find that comments Ms. Benkhalti made to Ms. Mosquera are compelling evidence of a nexus. In Weihs, the Tribunal found that a reasonable inference could be drawn from a comment made by the complainant’s employer after the complainant announced her pregnancy that the employer “thought negatively about accommodating a pregnancy”: at para. 84.

[138]       In this case, Ms. Benkhalti made several comments to Ms. Mosquera that arose from her assumption that Ms. Mosquera had been deliberately deceptive by hiding her true intention not to work on Fridays. Specifically, Ms. Benkhalti expressly told Ms. Mosquera at the January 18, 2020 meeting that she was “demanding too much” and did not “deserve” the “special privileges” of a flexible schedule “just because she is a mother”. Further, even though Ms. Benkhalti knew that Ms. Mosquera started the immigration consultant course while she was on maternity leave, she questioned Ms. Mosquera’s commitment and motivation to become her “right hand”. In my view, a reasonable inference can be drawn from this evidence that at least one of the factors relating to the treatment Ms. Mosquera experienced and the termination of her employment was her employer’s belief that if Ms. Mosquera came back, she would continue to “demand” changes to the terms of her employment to suit her preferred childcare arrangements and act as though she were a “co-owner” of North Horizon “just because she is a mother”.

[139]       Third, Ms. Benkhalti’s evidence at the hearing was that one of the reasons she decided not to answer Ms. Mosquera’s questions about the 2020 Contract and “accept” that Ms. Mosquera repudiated her employment was because she did not want to “open another Pandora’s Box”. Ms. Benkhalti said that “it was never enough” for Ms. Mosquera and she “didn’t know when this would end”. Ms. Benkhalti also said that Ms. Mosquera “made it very difficult to find something that would please her”. Ms. Benkhalti said that if Ms. Mosquera came back, there might be “small hurdles” she would have to deal with on a daily basis, for instance Ms. Mosquera might decide after three months that she was no longer available on certain days or Ms. Mosquera might have to leave the office to pick up her children and another employee would have to do her work. In my view, a reasonable inference that can be drawn from this evidence is that at least part of the reason why Ms. Mosquera was treated the way she was after the January 18, 2020 meeting and then dismissed was because she was perceived to be unreliable and always dissatisfied with the terms of her employment due to her childcare obligations.

E.     Conclusion on discrimination complaint

[140]       For the reasons set out above, I find that North Horizon discriminated against Ms. Mosquera contrary to s. 13 of the Code based on her sex and family status when it treated her in a humiliating manner and then terminated her employment.

VI    Retaliation analysis

[141]       In addition to being discriminated against, Ms. Mosquera also alleges that the termination of her employment was a violation of s. 43 of the Code, which states:

Protection

43  A person must not evict, discharge, suspend, expel, intimidate, coerce, impose any pecuniary or other penalty on, deny a right or benefit to or otherwise discriminate against a person because that person complains or is named in a complaint, might complain or be named in a complaint, gives evidence, might give evidence or otherwise assists or might assist in a complaint or other proceeding under this Code.

[142]       The word “retaliation” does not appear in s. 43, however “the term is frequently used as a shorthand to describe the conduct that it prohibits”: The Sales Associate v. Aurora Biomed Inc. and others (No. 3), 2021 BCHRT 5 at para. 149.

[143]       To establish that North Horizon violated s. 43, Ms. Mosquera must prove that:

a.    North Horizon was aware that she might make a complaint under the Code;

b.    her employment was terminated; and

c.     there is a sufficient connection between the termination and the prospect that she might make a complaint.

The Sales Associate at para. 150.

[144]       Unlike the test to establish discrimination under the Code, the legal test to prove a violation of s. 43 is not whether the prospect of making a human rights complaint was a factor in the retaliatory conduct. Rather, the issue is whether the respondent undertook the retaliatory conduct “because” the complainant might make a human rights complaint: Brooks v. Skyacres Turkey Ranch Ltd. and others (No.2), 2022 BCHRT 73 at para. 234. To make that determination, the Tribunal considers whether the respondent intended to retaliate or whether the respondent can reasonably have been perceived to have retaliated, “with the element of reasonable perception being assessed from the point of view of a reasonable complainant, apprised of the facts, at the time of the impugned conduct”: Gichuru v. Pallai, 2018 BCCA 78 at para. 58 (adjusted to reflect a subsequent amendment to s. 43).

[145]       I have already found that North Horizon terminated Ms. Mosquera’s employment. The only question is whether North Horizon did so because it was aware that she might make a complaint to the Tribunal.

[146]       Ms. Mosquera’s February 10, 2020 email was not produced at the hearing. In her closing argument, Ms. Mosquera refers to allegations she made in her complaint about the contents of her email. Allegations in a complaint are not evidence. I make my determination based solely on the evidence presented at the hearing. The only evidence before me at the hearing about the contents of Ms. Mosquera’s email was that she “raised human rights concerns” or “human rights violations”. In my view, that evidence is not sufficient to establish that North Horizon was aware that Ms. Mosquera might make a human rights complaint under the Code.

[147]       Even if North Horizon had been aware that Ms. Mosquera intended to make a human rights complaint, I would still find that North Horizon did not retaliate against her. While the timing of Ms. Mosquera’s email and the termination of her employment might give rise to a reasonable inference that North Horizon retaliated against her, that is not enough to prove a sufficient connection: Gichuru v. Vancouver Swing Society (No. 3), 2020 BCHRT 1 [Gichuru No. 3] at para. 183.

[148]       In my view, the circumstances in Gichuru No. 3 are instructive. In that case, the Swing Society was considering whether to permanently ban Mr. Gichuru from its events because of his conduct toward other members when he advised that he intended to make a human rights complaint. The Swing Society took that to mean Mr. Gichuru was not willing to take responsibility for his actions and decided to permanently ban him. The Tribunal held that the Swing Society did not retaliate against Mr. Gichuru because he intended to make a complaint. In other words, the Tribunal found that the Swing Society did not ban Mr. Gichuru because of his threat to make a complaint. Rather, the Swing Society banned Mr. Gichuru after he threatened to make a complaint because he had not taken their concerns about his behaviour seriously and he lacked insight into how his behaviour might be perceived by others.

[149]       I also find Brooks to be of assistance in these circumstances. In that case, the complainant alleged the respondents retaliated against him after he made a human rights complaint when they escalated their efforts to evict him. The Tribunal found that the respondents had not retaliated against the complainant because they had already taken steps to try to get him to leave the property. The Tribunal said that although the human rights complaint “was likely the last straw”, the evidence established that the respondents wanted the complainant to leave the property because of their ongoing conflict: at paras. 236-240.

[150]       Similar to the Tribunal’s conclusions in Gichuru No. 3 and Brooks, I find the evidence established that despite the temporal connection, Ms. Mosquera’s employment was not terminated because North Horizon knew she might make a complaint with the Tribunal.

[151]       By the time Ms. Mosquera sent the February 10, 2020 email raising human rights concerns, the relationship between her and Ms. Benkhalti was on very shaky ground. Days before receiving Ms. Mosquera’s email, Ms. Benkhalti was already reconsidering whether she was the right fit to be her “right hand” and she told Ms. Mosquera she could look for employment elsewhere. I accept Ms. Benkhalti’s evidence that after receiving Ms. Mosquera’s email, her main concern remained that Ms. Mosquera wanted the terms of her employment to be mutually agreed upon. I also accept Ms. Benkhalti’s evidence that she was disappointed that Ms. Mosquera raised human rights concerns because North Horizon had always supported her but that did not factor into her decisions.

[152]       In my view, a reasonable complainant, apprised of all the facts, would not reasonably perceive that North Horizon acted out of retaliation for Ms. Mosquera raising the possibility of making a human rights complaint. Rather, in the context of this relationship, it is apparent that the relationship between Ms. Benkhalti and Ms. Mosquera had broken down quite apart from any mention by Ms. Mosquera of human rights violations.

VII  Summary and conclusion

[153]       For the reasons set out above, I find that:

·       North Horizon discriminated against Ms. Mosquera based on sex and family status; and

·       North Horizon did not retaliate against Ms. Mosquera contrary to s. 43 of the Code.

VIII           Remedies

[154]       I now turn to the appropriate remedies. Under s. 37 of the Code, Ms. Mosquera seeks compensation for lost wages, injury to her dignity, and expenses incurred by the contravention.

A.    Order to cease and refrain

[155]       Having found that the discrimination complaint under s. 13 of the Code is justified, I order North Horizon to cease the contravention of the Code and refrain from committing the same or a similar contravention: Code, s. 37(2)(a).

B.     Compensation for lost wages

[156]       Section 37(2)(d)(ii) of the Code gives the Tribunal discretion to award compensation to a successful complainant for wages lost by the contravention. The intent of a wage loss award “is to restore a complainant, to the extent possible, to the position he or she would have been in had the discrimination not occurred”: Gichuru v. The Law Society of British Columbia (No. 9), 2011 BCHRT 185 [Gichuru No. 9] at para. 300, petition dismissed 2013 BCSC 1325; appeal dismissed 2014 BCCA 396. Ms. Mosquera bears the burden of proving a causal connection between the discrimination and the wage loss she claims: Gichuru No. 9 at paras. 301-302. If she does that, “the amount of compensation is a matter of discretion, to be exercised on a principled basis, in light of the purposes of the remedial provisions of the Code, and the purpose of the award”: Gichuru No. 9 at para. 303.

[157]       When considering whether to order compensation for lost wages, the Tribunal looks at whether the complainant took reasonable steps to mitigate their loss by finding new employment. A complainant will not be able to recover wages lost that could reasonably have been avoided. The respondent bears the burden of proving that the complainant did not mitigate their wage loss: Ms. K v. Deep Creek Store and another, 2021 BCHRT 158 at para. 119.

[158]       I agree with Ms. Mosquera that but for the discrimination, there is no indication that she would not have returned to work at North Horizon after her maternity leave ended. Having found that the discrimination flowed from the misunderstanding between Ms. Benkhalti and Ms. Mosquera, Ms. Mosquera has met her onus of establishing a causal connection between the discrimination and her wage loss.

[159]       I now consider the appropriate amount of compensation for lost wages.

[160]       I find that Ms. Mosquera made all reasonable efforts to find alternate employment after North Horizon terminated her employment. The evidence Ms. Mosquera submitted at the hearing shows that in late February 2020, Ms. Mosquera was actively seeking employment by networking and monitoring online job postings. The evidence shows that Ms. Mosquera applied for various positions and started working at her current job in late October 2020.

[161]       I find that Ms. Mosquera has met her onus of proving that she lost wages because of the discrimination between February 11, 2020 and October 27, 2020, which is when she started her current job. North Horizon has not provided any evidence that Ms. Mosquera did not mitigate her wage loss.

[162]       I order North Horizon to pay Ms. Mosquera compensation for lost wages calculated as follows:

·       Number of weeks between February 11 and October 27, 2020 = 37

·       Hourly wage – $20.00

·       Average number of hours per week = 32

·       Average weekly wage = $640

·       Wage loss – 37 x $620 = $23,680

·       Less paid to Ms. Mosquera for pay in lieu of notice, “company good-faith”, and vacation pay- $2,329.60

·       Total compensation for wage loss – $21,350.40

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

[163]       Under s. 37(2)(d)(iii) of the Code, the Tribunal has discretion to award compensation to a complainant for injury to their dignity, feelings, and self-respect. Such an award is intended to compensate a complainant who has been discriminated against, not to punish the respondent: Silver Campsites Ltd. v. James, 2013 BCCA 292 at para. 41. The amount of compensation depends on the facts of the particular case and relevant factors, namely the nature of the discrimination, the complainant’s vulnerability, and the effect of the discrimination on the complainant: Oger v. Whatcott (No. 7), 2019 BCHRT 58 at para. 225.

[164]       Ms. Mosquera seeks $50,000 for compensation for injury to her dignity, feelings, and self-respect flowing from the discrimination.

[165]       As the Tribunal noted at para. 26 in Shahadat v. Northern School of Spa Therapies (No. 3), 2024 BCHRT 120:

Assessing the appropriate amount to award for an injury to a person’s dignity is a difficult exercise. Money cannot undo the damage of discrimination, or fully compensate for its harms. Compensatory damages are just the law’s best attempt. They are how the Code achieves its purpose of providing redress to people who have been discriminated against: s. 3(e). There is no mathematical formula that calculates dignity. Comparison between cases is inherently imperfect and can be a demoralizing exercise in valuing – or devaluing – a person’s pain. Difficult as it may be, the Tribunal must apply its expertise and exercise its discretion to identify an appropriate amount of money to compensate a complainant – as much as money ever could – for the indignity and harms of discrimination.

[166]       I begin with the nature of the discrimination. Any discrimination is serious; however, the egregiousness of the discriminatory conduct varies depending on the specific facts of the case: Aurora at para 189.

[167]       In addition to the manner in which Ms. Mosquera was treated, the nature of the discrimination in this case includes termination of employment, which has been described by the Tribunal as the “ultimate employment-related consequence”: Nelson v. Goodberry Restaurant Group Ltd. dba Buono Osteria and others, 2021 BCHRT 137 at para. 34. The Tribunal has recognized that loss of employment often warrants compensation at the high end of the range given the significance of employment to a person’s identity, self-worth, and dignity: Ms. K at para. 131; Benton v. Richmond Plastics, 2020 BCHRT 82 at para. 67.

[168]       Related to the nature of the discrimination is the length of a complainant’s employment: Senyk v. WFG Agency Network (No. 2), 2008 BCHRT 376 at para. 466-467; Benton at para. 69. Including the period of time she was on maternity leave, Ms. Mosquera worked for North Horizon for about 2 ½ years, which distinguishes her circumstances from those of a long-term employee: Benton at para. 69. I note here that the discrimination in this case occurred over a period of about a month, which also distinguishes Ms. Mosquera’s circumstances from cases such as Francis v. BC Ministry of Justice (No. 5), 2021 BCHRT 16, where the discriminatory conduct spanned several years.

[169]       I next consider the social context of the complaint and Ms. Mosquera’s vulnerability. Doing so helps “in identifying the persistent patterns of inequality that are associated with discrimination to fulfill the purposes of the Code as set out in s. 3(d)”: Lall v. Apidel Staffing Inc. operating as Apidel Technologies and another, 2023 BCHRT 45 at para. 60; see also LaFleche at para. 77. Specifically, I consider Ms. Mosquera’s individual circumstances in the context of the “inherent power imbalance between employers and employees”: Ms K at para. 43. The Tribunal has recognized an employee’s inherent vulnerability, particularly at the time of termination: Benton at para. 71.

[170]       In LaFleche, the Tribunal reiterated that “pregnancy compounds vulnerability”: at para. 79. In that case, the Tribunal said that the “Code aims to eliminate these gendered inequalities so that everyone can fully and freely participate in the economic, social, political and cultural life of BC – whether they are pregnant or on a pregnancy-related leave”: at para. 79. Like in LaFleche, “the social context in this case is one of economic and gendered inequality”, which “are two persistent patterns of inequality which compound a person’s vulnerability”: at para. 80.

[171]       I now consider the effect of the discrimination and its impacts on Ms. Mosquera. I disagree with North Horizon that the evidence showed that, at most, Ms. Mosquera experienced “inconvenience, professional frustration, and temporary interpersonal conflict”.

[172]       Until the misunderstanding between Ms. Benkhalti and Ms. Mosquera came to light, Ms. Mosquera was excited to return to North Horizon after her maternity leave ended and work toward becoming Ms. Benkhalti’s “right hand”, as they had planned since 2018. Instead, when she told Ms. Benkhalti she could not work on Fridays, Ms. Benkhalti assumed that Ms. Mosquera had been deliberately deceptive and never had any intention of working on Fridays. Because Ms. Benkhalti assumed the worst about Ms. Mosquera, Ms. Mosquera was not allowed to return to work, treated as though she were demanding special privileges because she is a mother, and then dismissed without warning in an email. Sometime after Ms. Mosquera’s employment ended, Ms. Benkhalti announced to North Horizon’s staff that Ms. Mosquera was not coming back because she refused to sign the 2020 Contract and she wanted to control her own schedule and have privileges they did not have.

[173]       Ms. Mosquera testified that she had never been fired from a job before. She said that her conversations with Ms. Benkhalti leading up to the termination of her employment negatively impacted her self-esteem. She said that after she received the February 11, 2020 email, she felt guilty for trying to balance her work with being a mother. She said she started to question whether she had been too demanding and whether it was too much to ask to be a professional and a mother.

[174]       Ms. Mosquera also testified that because everything happened over a short period of time, she “felt like I was suffocating”. She said she would go for walks and just breathe and try to understand what had happened. Ms. Mosquera said she tried to keep herself together for her children and had little time for herself to process the situation, which was made more difficult because of the Covid-19 pandemic. Ms. Mosquera said it took her awhile to get her confidence back and believe that she was not being unrealistic or excessively demanding by wanting to have both a career and a family life.

[175]       Ms. Mosquera’s evidence was that when she started to look for other jobs, she was afraid to say that she needed flexibility and assumed potential employers would just say no if she asked. She said she felt a sense of accomplishment once she completed the immigration consulting course and got her license. Ms. Mosquera said that when she interviewed for her current job, she was told that flexibility in terms of leaving early or starting late and working remotely was not a problem. She said that over the past four years, she has taken on more responsibilities and has been able to do all the things she knew she was capable of doing if she was given the opportunity.

[176]       Ms. Mosquera’s husband testified that Ms. Mosquera had been looking forward to returning to work and her dismissal came as a “big shock”. He said that Ms. Mosquera was “down on herself” and felt as though her career had stalled. He said that Ms. Mosquera was worried that it would be difficult to find a new job in the immigration industry. Ms. Mosquera’s husband said that even though she was upset and stressed, Ms. Mosquera “tried to put on a brave face”. He said that Ms. Mosquera told him how shocked, upset, and confused she was about what happened and that she was concerned she would not be able to contribute financially to the family and household. He also said that it helped when Ms. Mosquera started to get responses and interviews and that starting her new job in October 2020 “helped her get out of her funk”.

[177]       Both Ms. Mosquera and her husband testified about how the stress from the situation manifested in her physically. Specifically, they testified about the back and shoulder pain, muscle tension, and cold sores that Ms. Mosquera experienced. Ms. Mosquera’s husband also said that Ms. Mosquera had “low energy”, and what he described as a “general malaise”.

[178]       In support of her claim, Ms. Mosquera cites Kasagoni v. J Singh Enterprises dba Willingdon Husky and another (No. 3), 2023 BCHRT 65. She says that because of the exacerbating factors in this case, the fact that the adverse impacts were more than termination of employment, and the upward trend in damage awards, particularly regarding the termination of employment, an appropriate award is $50,000.

[179]       In Kasagoni, the Tribunal found that the complainant had been discriminated against when she was underpaid for a significant period of time, harassed after she made a WorkSafeBC claim, and then fired. The Tribunal awarded the complainant $35,000, noting the complainant’s “uniquely vulnerable” position as an immigrant that deepened the power imbalance between her and her employer because her immigration status was reliant on her employment. The Tribunal also found that the ongoing impacts of the discrimination on the complainant were profound given her history of trauma that led to feelings of isolation, depression, and thoughts of suicide.

[180]       I have reviewed the relevant employment-related cases Ms. Mosquera cites in her Form 9.4 – Remedy Sought in support of her claim. In Benton, the Tribunal awarded the complainant $30,000 as compensation for injury to her dignity. In that case, the Tribunal found that the complainant’s mental disability was at least a factor in the termination of her employment after only one day. Again, the most significant factor for the Tribunal was the severe effect the discrimination had on the complainant’s mental health, well-being, and self-worth as a mother. The complainant did not leave her house for about a year after her dismissal and at the time of the hearing was still not able to search for new employment.

[181]       In Ford v. Peak Products Manufacturing and another (No. 3), 2010 BCHRT 155, the Tribunal awarded the complainant $25,000 as compensation for injury to her dignity. In that case, the serious impact of the discriminatory termination of the complainant’s employment on her mental health was a significant factor. In Nelson, the Tribunal awarded $30,000 as compensation for injury to the complainant’s dignity.

[182]       I have also looked at other Tribunal decisions for guidance. In LaFleche, the Tribunal awarded the complainant $12,000 as compensation for injury to her dignity. As described above, the complainant in that case had been removed from her marketing manager position to an unknown position while she was on maternity leave, treated in a humiliating manner, and then constructively dismissed. The evidence before the Tribunal was that the complainant felt humiliated at a meeting with her employer and left in limbo while she waited for her employer to contact her about her options and duties. The Tribunal accepted the complainant’s evidence that she was distressed by the situation, unable to enjoy the rest of her maternity leave, and experienced loss of sleep, appetite, and sense of security.

[183]       In Araniva v. RSY Contracting and another (No. 3), 2019 BCHRT 97, the Tribunal awarded the complainant $40,000 for injury to dignity. The complainant in that case had been sexually harassed at work and had her hours reduced. The most significant factor when determining an appropriate award was what the Tribunal described as the “extreme” effect of the discrimination on her given her history of trauma and particular vulnerability. At the time of the hearing, the complainant was still recovering from those effects.

[184]       In keeping with the individualized nature of these awards, none of these cases mirror Ms. Mosquera’s circumstances exactly. Taking into account all the circumstances, including the length of Ms. Mosquera’s employment, the manner in which her employment was terminated, and the relative impacts of the discrimination on her, I exercise my discretion and award her $20,000 as damages for injury to her dignity, feelings, and self-respect.

D.    Expenses incurred because of the discrimination

[185]       Section 37(2)(d)(ii) of the Code grants the Tribunal discretion to order compensation for expenses incurred by the discrimination. Again, the object is to place the person in the position they would have been in but for the discrimination.

1.      Legal fees

[186]       Ms. Mosquera seeks compensation for legal fees and disbursement incurred to pursue her complaint: Kerr v. Boehringer Ingelheim (Canada) (No. 5), 2010 BCHRT 62 at para. 92. She did not particularize the disbursements for which she seeks compensation but did submit an invoice from her counsel in the amount of $3,020.50. The invoice is dated December 2023; however, I accept Ms. Mosquera’s evidence that these fees were incurred prior to the complaint being filed. For that reason, I order North Horizon to pay compensation to Ms. Mosquera in the amount of $3,020.50.

2.      Medical expenses

[187]       Ms. Mosquera seeks compensation for counselling and physiotherapy expenses she incurred because of the discrimination. Ms. Mosquera submitted receipts for those expenses that indicate she attended counselling and physiotherapy in February and March 2020. She testified that she attended physiotherapy to help relieve the stress she was feeling and the back pain she was experiencing because of the situation with North Horizon. She testified that she attended counselling sessions to try to process what had happened and help her cope with the situation so she could move forward. Based on that evidence, I am satisfied that these expenses are a consequence of the discrimination. I order North Horizon to pay compensation to Ms. Mosquera for these expenses in the amount of $667.50.

3.      Immigration consultant certificate course

[188]       Ms. Mosquera seeks $8,505 as compensation for the tuition fees she paid for the immigration consulting course she started in September 2019 and completed in the summer of 2020.

[189]       Ms. Benkhalti and Ms. Mosquera first discussed Ms. Mosquera taking this course in 2018, when Ms. Mosquera asked Ms. Benkhalti about the possibility of eventually working full-time at North Horizon. Ms. Benkhalti and Ms. Mosquera agreed that because Ms. Mosquera was pregnant, she would start the course in 2019. There is no evidence that Ms. Benkhalti or North Horizon ever gave Ms. Mosquera any indication that the company would either pay or reimburse Ms. Mosquera for the tuition fees. As this expense was not incurred because of the discrimination, I decline to make such an award. 

IX     CONCLUSION AND ORDERS

[190]       The retaliation complaint against North Horizon is dismissed.

[191]       I find that North Horizon discriminated against Ms. Mosquera regarding her employment based on sex and family status contrary to s. 13 of the Code and order the following remedies:

a.    I declare that North Horizon discriminated against Ms. Mosquera contrary to the Code, and I order North Horizon to cease the contravention and refrain from committing the same or a similar contravention: Code, s. 37(2)(b) and s. 37(1)(a);

b.    I order North Horizon to pay Ms. Mosquera $21,350.40 as compensation for wages or salary lost as a result of the contravention: Code, s. 37(2)(d)(ii);

c.     I order North Horizon to pay Ms. Mosquera $20,000 as compensation for the injury to her dignity feelings and self-respect: Code, s. 37(2)(d)(iii);

d.    I order North Horizon to pay Ms. Mosquera $3,688 as compensation for expenses incurred because of the discrimination: Code, s. 37(2)(d)(ii);

e.    I order North Horizon to pay Ms. Mosquera pre-judgement interest on the amounts I have ordered for lost wages and expenses under s. 37(2)(d)(ii), based on the rates set out in the Court Order Interest Act; and

f.      I order North Horizon to pay Ms. Mosquera post-judgment interest on the amount I have ordered for lost wages under s. 37(2)(d)(ii), the amount I have ordered for injury to dignity under s. 37(2)(d)(iii), and the amount I have ordered for expenses under s. 37(2)(d)(ii) from the date of this decision until paid in full, based on the rates set out in the Court Order Interest Act.

Beverly Froese

Tribunal Member

Human Rights Tribunal