Gao v. Board of Education of School District No. 39 (Vancouver) and another, 2026 BCHRT 73
Date Issued: March 25, 2026
File: CS-008041
Indexed as: Gao v. Board of Education of School District No. 39 (Vancouver) and another, 2026 BCHRT 73
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:
Zaiqi Gao
COMPLAINANT
AND:
Board of Education of School District No. 39 (Vancouver) and Michael Henick
RESPONDENTS
REASONS FOR DECISION
APPLICATION DISMISS A COMPLAINT
Section 27(1)(c)
Tribunal Member: Amber Prince
On their own behalf: Zaiqi Gao
Counsel for the Respondents: Connie Do and David Bell
I INTRODUCTION
[1] This is a decision about whether to dismiss Zaiqi Gao’s complaint without a hearing.
[2] Mr. Gao alleges that when he was sitting on a bench outside a school/community centre on June 1, 2021, Michael Henick, the school’s custodian, called him a racial slur [the slur]. Mr. Gao also alleges that Mr. Henick’s employer, School District No. 39 [School District], took no action when he reported the slur. Based on this alleged conduct, Mr. Gao claims that Mr. Henick and the School District discriminated against him in the area of services, under s. 8 of the Human Rights Code.
[3] Mr. Henick denies calling Mr. Gao the slur, and the School District says it took appropriate action to address Mr. Gao’s report. They apply to dismiss Mr. Gao’s complaint on the basis that it has no reasonable prospect of success: Code, s. 27(1)(c).
[4] For the reasons set out below, I allow the application and dismiss the complaint. I am persuaded that Mr. Gao has no reasonable prospect of proving that Mr. Henick called him the slur or that the School District’s response to his report was discriminatory.
[5] To make this decision, I have considered all the information filed by the parties, but I only refer to what is necessary to explain my decision. I make no findings of fact. I apologize to the parties for the delay in issuing this decision.
II Background
[6] Mr. Gao describes himself as Asian, and a Canadian immigrant from China. He says that he was invited to Canada by the Canadian government after he won an international faculty research award. He says that he has been paying taxes in Canada for over 30 years since then.
[7] Mr. Henick has been a custodian for over 30 years. He has been the school custodian at Britannia Secondary School since at least March 2018. He is employed by the School District.
[8] Britannia Secondary School is part of a larger community site, the Britannia Community Services Centre [Britannia Centre]. Britannia Centre offers programs and services for community members of all ages. Its public amenities include, for example: a library, pool, ice rink, preschool and fitness centre.
[9] On June 1, 2021, Mr. Gao says that he was accessing the Britannia Centre library. Around 11:45 am he says that he was sitting on a bench outside the Britannia Centre when he was subject to a racial slur. Mr. Gao reported the incident to the School District by email on June 18, 2021, at 3:30 pm. He described the incident as follows:
On June 1 (Tuesday), around 11:45, I was sitting at the bench [in] front of Br[i]tannia Centre, like many members from the community come to sit around [the] community centre, a white guy between 30-40 years old with sunglasses approached me and said: “You are like a cockroach (that can not get rid off) always here, rain or shine” [the slur]. I felt shocked and speechless. I walk around the block, around the schools, use the library, swimming pools everyday, all the people in this community are extremely nice to me all these years.
I know a school staff named Kevin and told him the guy who always patrols the area the story. Kevin told me he would report to the princip[al] and I need to talk to the management of Britannia centre /police, otherwise he would do it again […]. One of the manager[s], Wiley at the Community Centre told me that he would find out who is that guy because Britannia Centre does not have anybody [who] patrols the campus.
Affidavit of Stacey Alexander, Exhibit A.
[10] On Monday, June 21, 2021 at 9:28 am, Stacey Alexander, a manager of labour relations for the School District, sent an email to John Farias, a manager of operations at the School District, about Mr. Gao’s report. Ms. Alexander asked Mr. Farias: “Do we know for sure it is our staff? Does your staff ‘patrol’ the grounds?”: Mr. Gao’s dismissal application evidence. Mr. Farias replied at 9:31 am: “We don’t know for sure but it looks like someone from the community centre pointed out that it was the custodian, yes part of Mike [Henick’s] job is to patrol, check garbage cans and clean entrance areas to all Brit[annia] buildings.” Ms. Alexander then emailed Lisa Abercrombie, a human resources advisor for the School District, at 9:33 am and asked Ms. Abercrombie to look into the matter.
[11] At 9:43 am, on the same day, Ms. Abercrombie, responded to Mr. Gao’s email. She asked Mr. Gao if they could arrange a phone call so that she could gather more information to determine the identity of the person who made the slur: Alexander Affidavit, Exhibit B.
[12] On June 21, 2021 at 10:23 am, Mr. Gao wrote back to Ms. Abercrombie, stating that he did not have a phone but could arrange to discuss the incident in person at the Britannia Centre. He did not give more information about the identity of the person who made the comment, but said: “I do not think the school board is harboring this bad apple”: Alexander Affidavit, Exhibit C.
[13] On June 21, 2021 at 10:39 am, Ms. Abercrombie responded to Mr. Gao’s email and asked: “When you said that you don’t think the school board is harboring this bad apple, do you mean that you do not think that the individual who made these comments is a school board employee?” She also asked: “Have you seen the person in the past and do you recall any additional identifying factors other than his age between 30 and 40 and sunglasses?”: Alexander Affidavit, Exhibit C.
[14] On June 21, 2021 at 10:23 am, Mr. Gao wrote back to Ms. Abercrombie, stating: “Initially I thought he was an employee of the school. Later, Wiley at Britannia Centre told me that he was a student. After talking to a few people, I have been told he is not a student, he is a custodian, his name is Mike”: Alexander Affidavit, Exhibit C.
[15] On June 21, 2021 at 11:58 am, Ms. Abercrombie responded to Mr. Gao’s email and asked: “We will definitely be looking into this further. Are you able to advise me of who you spoke to who confirmed Mike’s identity? Were they employees of the school board or individuals in the community?”: Alexander Affidavit, Exhibit D.
[16] On June 22, 2021 at 10:28 am, Mr. Gao wrote back to Ms. Abercrombie, stating:
Yes. Actually I have been talking to the people, everyone is shocked and a guy even suggested that it must be him. Obviously people know something about him. Another teacher who lives in the community knows that [he] was a weirdo, and I trust the racist must have been doing so in this community and known to them. It is sad. But everyone supports me and no racist should be here: Alexander Affidavit, Exhibit E.
[17] As part of the School District’s investigation into Mr. Gao’s report, Ms. Abercrombie met with Mr. Henick. The School District’s evidence includes minutes from that meeting: Alexander Affidavit, Exhibit O. The minutes show that, at the meeting, Ms. Abercombie relayed Mr. Gao’s allegation to Mr. Henick and asked for his response to it. Mr. Henick denied knowing Mr. Gao, making the slur, or having any knowledge of the incident.
[18] Mr. Henick also filed an affidavit confirming that he never called anyone, including Mr. Gao, the slur: paras. 2-4. He explained in his affidavit that on June 1, 2021, around 11:45 am, he would have taken his lunch break from 11:30 am to 12 pm, and had his lunch in the “engineer’s lunch room” in restricted, staff-only area: para. 5. From 12:00 pm to 1:30 pm he cleans the school cafeteria: para. 8. He said that this is his daily schedule, and that if he misses his lunch break, he does not receive additional time for lunch: paras. 5-8. He supplied a copy of his work schedule confirming the timing of his lunch break and cafeteria duties: Henick Affidavit, Exhibit A.
[19] Mr. Henick’s schedule does not indicate that he patrols the school grounds but shows that he empties garbage containers: outside of the gym between 8:00 and 9:15 am; and outside the info centre from 10:00 to 11:00 am. His schedule shows that he services the washrooms in the library and preschool between 11:00 and 11:30 am.
[20] On October 28, 2021, at 10:20 am, Mr. Gao followed up on his report in an email to school trustee, Allan Wong. Mr. Wong responded at 10:54 pm on the same day. He said he was sad to hear about the incident and sought to hear more about the incident from Mr. Gao: Alexander Affidavit, Exhibits F, and G. Mr. Gao provided more information by email on October 29, 2021, and on the same day, Mr. Wong followed up with the School District’s superintendent about Mr. Gao’s report: Alexander Affidavit, Exhibits J and K.
[21] On November 3, 2021, associate superintendent, Jody Langlois, followed up with Mr. Wong by email stating:
I have followed up with our Human Resources Department about this matter. It is my understanding the Human Resources Department did look into this matter, and have asked me to provide you with the following message:
The Vancouver Board of Education takes these matters very seriously. Due to the confidentiality of such matters we cannot disclose the outcome of the meeting. But please be assured that the issue has been addressed [emphasis in original].
I apologize that you were not informed in a timely fashion that the matter has been dealt with. I would also like you to know that if you would like to meet with me in person to further discuss this matter, I will make myself available to meet with you at a place of your convenience. I understand that you do not have access to a telephone, so please let me know how you would like to move forward on this matter via return email: Alexander Affidavit, Exhibit M.
[22] Mr. Gao replied to Ms. Langlois’ email on November 3, 2021. He thanked her for her email, said he had been “hurt deeply” by a Vancouver School Board employee, and had been advised to seek legal help: Alexander Affidavit, Exhibit M. On May 2, 2022, Mr. Gao filed a human rights complaint.
III ANALYSIS
[23] I return to the question of whether Mr. Gao’s complaint has no reasonable prospect of success, under s. 27(1)(c) of the Code. I begin with the relevant legal principles, then I apply them.
A. Section 27(1)(c) principles
[24] Section 27(1)(c) is part of the Tribunal’s gate-keeping function. As part of this gate-keeping function, the Tribunal has discretion to dismiss a complaint, under s. 27(1)(c) if the complaint has no reasonable chance of succeeding at a hearing: Lord v Fraser Health Authority, 2021 BCSC 2176, para. 19.
[25] The Tribunal does not make findings of fact under s. 27(1)(c), as it would at a hearing. Instead, the Tribunal considers the whole of the evidence to decide whether there is no reasonable prospect that a complaint could be proven, after a full hearing of the evidence: Byelkova v Fraser Health Authority, 2021 BCSC 1312, para. 24; Francescutti v. Vancouver (City), 2017 BCCA 242, para. 52. The Tribunal bases its decision on the materials filed by the parties; not on what evidence might be given at the hearing: University of British Columbia v. Chan, 2013 BCSC 942, para. 77; Conklin v University of British Columbia, 2021 BCSC 1569, para. 32.
[26] If there is no reasonable prospect of a complaint succeeding after a full hearing of the evidence, then it serves no purpose to proceed with the time and expense of a hearing: Workers’ Compensation Appeal Tribunal v. Hill, 2011 BCCA 49, para. 27.
[27] The onus is on the applicant to show there is no reasonable prospect a complaint will succeed: Byelkova, para. 27. At this stage, the complainant must show that their allegations are based on more than speculation: Lord, para. 19.
[28] To prove discrimination at a hearing, Mr. Gao would have to prove that he was adversely impacted by Mr. Henick and the School District, in the area of services; and that his race or place of origin was a factor in the adverse impact(s): Moore v. BC (Education), 2012 SCC 61, para. 33. If, based on the dismissal application materials, Mr. Gao has no reasonable chance of proving discrimination, I may dismiss his complaint under s. 27(1)(c) of the Code.
[29] In their dismissal application, Mr. Henick and the School District argue that Mr. Gao has no reasonable prospect of proving that Mr. Henick said the slur, or that the School District’s investigation of his report was discriminatory. I find that I can decide this application by addressing these two arguments. For that reason, I will assume without deciding that: the School District was providing a service to Mr. Gao; a person made the comment to Mr. Gao and it adversely impacted him; his race and place of origin was a factor in the adverse impact; and the single comment was a slur that rises to the level of discrimination under the Code: Pardo v. School District No. 43, 2003 BCHRT 71, para. 12.
B. Applying the s. 27(1)(c) principles to this complaint
Mr. Gao’s allegation about Mr. Henick
[30] To prove his allegation against Mr. Henick, Mr. Gao would need to prove that it was Mr. Henick who called him the slur. The only evidence before me suggesting Mr. Henick made the slur is Mr. Gao’s eyewitness account. This type of evidence is called eyewitness or identification evidence. For reasons I will explain, the evidence before me about Mr. Gao’s eyewitness account is not reliable to prove Mr. Henick called Mr. Gao the slur. In other words, Mr. Gao has no reasonable prospect of proving at a hearing that Mr. Henick called him the slur.
[31] Courts and tribunals have long recognized that they must be cautious with identification evidence and alive to its inherent dangers and frailties: R. v. Hibbert, [2002] 2 SCR 445, para. 51; United States of America v. Walker, 2008 BCCA 55, paras. 20-24; R v Morin, 2024 MBCA 85, para. 23; Logan v. Ontario (Solicitor General), 2022 HRTO 1004, paras. 126-129. Identification evidence is “notoriously unreliable” because even an honest, sincere, and confident witness may provide an inaccurate identification: R v Lachance, 2023 SKCA 48, para. 80. Identification evidence can and has led to, for example, wrongful convictions: R. v. Jack, 2013 ONCA 80, paras. 13-14; Hibbert, para. 51.
[32] Given the dangers and frailties of identification evidence, courts, especially in criminal cases, have developed factors to assess the reliability of such evidence, including: whether the eyewitness knows the person identified; the circumstances surrounding the identification; the eyewitness’ ability to identify anything distinctive about the person; whether the identification was made independently; and the existence of other independent evidence to confirm the identification: Morin, para. 26; R. v. Sturgeon, 2025 ONCA 572, para. 35; R. v. Henry, 2010 BCCA 462, paras. 104-106.
[33] Because Mr. Gao’s case depends on identifying Mr. Henick as the person who called him the slur, I find these factors helpful to assess the reliability of Mr. Gao’s evidence in this regard. Applying these factors, I find that Mr. Gao’s evidence identifying Mr. Henick as the person who called him the slur is unreliable for four reasons.
[34] First, the evidence before me is that Mr. Gao does not know Mr. Henick. He did not identify Mr. Henick as the person who called him a slur on June 1, 2021. For example, in his June 18, 2021 report to the School District about the incident, he described that person as: “a white guy between 30-40 years old with sunglasses.” He then asked someone named Kevin to help him identify the person. The evidence indicates that he had no familiarity with Mr. Henick that could enhance the reliability of his identification of Mr. Henick.
[35] Second, Mr. Gao’s description of the person who made the slur as “a white guy between 30-40 years old with sunglasses” is a short, generic description. It is a description which could fit many individuals outside the school or Britannia Centre. Mr. Gao did not describe for example, the height, weight, or clothing of the person. Based on Mr. Gao’s account, it appears the encounter was relatively brief, and Mr. Gao would not have had a lot of time to identify the person in question. He did not identify anything distinctive that would suggest the person was Mr. Henick, and the person wearing sunglasses would have made a positive identification of Mr. Henick – or anyone else – harder.
[36] I have considered Mr. Gao’s reference to “the guy who always patrols the area”, in his June 18, 2021 report to the School District. In my view, this reference is too vague and unclear to show a link to Mr. Henick as the person who made the slur. Mr. Gao is not clear in this account if the person who said the slur to him is a “guy who always patrols the area.” He does not explain what he means by the “guy who always patrols the area,” how he was aware of a “guy who always patrols the area” or provide any other independent detail linking this reference to Mr. Henick. In my view, this reference, without something more, is not enough to increase the reliability of Mr. Gao’s evidence.
[37] Third, to the extent that Mr. Gao suggests that Mr. Henick was the person who made the slur, the evidence does not point to him making that identification independently. Instead, Mr. Gao’s evidence is that he came to this conclusion after “talking to a few people.” Mr. Gao does not say who he spoke to, or how in speaking to them, he was able to confirm that the person who called him a slur on June 1, 2021, was Mr. Henick. The well-recognized risk with this type of eyewitness evidence is that Mr. Gao may have unconsciously filled in gaps in his own independent recollection with information provided by others: Toronto District School Board v. Elementary Teachers’ Federation of Ontario, 2008 CanLII 16866 (ON LA), para. 40; R. v. Ibrahim, 2020 ONSC 5815, para. 136.
[38] Fourth, there is no independent evidence before me to corroborate Mr. Gao’s evidence that it was Mr. Henick that called him the slur. Mr. Henick denies he made the slur and has supplied evidence that based on his daily work schedule he would have been taking his lunch break in the engineer’s lunch room from 11:30 am to 12:00 pm on June 1, 2021, and then cleaning the school cafeteria from 12:00 pm to 1:30 pm.
[39] While Mr. Gao submitted evidence suggesting that Mr. Henick patrols the Britannia buildings – incidental to emptying outside garbage containers – that evidence does not assist Mr. Gao to identify Mr. Henick as the person who said the slur. Mr. Henick does not deny that he empties the outside garbage containers, but his work schedule shows that he does so between 8:00 and 9:15 am; then from 10:00 to 11:00 am; and that he otherwise would have been inside the school during the time Mr. Gao says that the slur was said, around 11:45 am.
[40] I have also considered Mr. Gao’s evidence that other staff at the School District or Britannia Centre know who Mr. Henick is, and that he is a school custodian: response to dismissal application, p. 2. However, this is not evidence, from those staff, that they witnessed Mr. Henick calling Mr. Gao the slur, or even that Mr. Henick was in the immediate vicinity at the time the slur was made. In other words, it is not evidence of other witnesses corroborating Mr. Gao’s evidence that Mr. Henick is the person who made the slur.
[41] For these reasons, I conclude that Mr. Gao’s eyewitness evidence, identifying Mr. Henick as the person who made the slur, is unreliable. Because Mr. Gao’s ability to prove that Mr. Henick made the slur rests entirely on his eyewitness account, and that evidence is unreliable, Mr. Gao has no reasonable prospect of proving this allegation. There is no reasonable prospect that, at a hearing, the Tribunal could rely on Mr. Gao’s eyewitness account – no matter how credible, sincere, or confident his account may be – to prove that Mr. Henick called him the slur.
[42] I turn next to Mr. Gao’s allegation that the School District took no action when he reported the June 1, 2021 incident to the School District.
Mr. Gao’s allegation against the School District
[43] As a service provider, the School District is obliged to deliver its services in a non-discriminatory manner: Hale v. University of British Columbia Okanagan (No. 5), 2023 BCHRT 121, paras. 13-25. This means that when a service user alleges discrimination, the service provider is obliged to investigate that allegation and respond appropriately: Ahmed v. Vancouver College of Dental Hygiene Inc. (No. 2), 2020 BCHRT 161, para. 116.
[44] If a service provider falls short in responding to a report of discrimination, that shortfall may itself be discriminatory because adverse impacts from an inadequate response are inherently connected the protected characteristics engaged by the underlying discrimination alleged: Hale, paras. 16-20.
[45] To assess whether a service provider has met its obligation to investigate and respond, the Tribunal generally considers three factors, whether the service provider: had a proper understanding of discrimination; treated the alleged discrimination seriously and sensitively; and provided a reasonable resolution in the circumstances: Hale, para. 26; Blokhuis v. Mission Possible (No. 2), 2025 BCHRT 98, para. 53.
[46] Applying these factors to this case, the evidence indicates that the School District had a proper understanding of discrimination; treated Mr. Gao’s allegation seriously and sensitively; and provided a reasonable resolution. I base this conclusion on the following:
a. When Mr. Gao first reported the incident to the School District, and characterized the comment made as a racial slur, Ms. Abercrombie responded promptly and immediately identified the incident as “terrible” and “absolutely unacceptable.” She offered to discuss the matter with Mr. Gao, to gather more information, and confirm the identity of the person who made the slur: Alexander Affidavit, Exhibit C.
b. She and other School District personnel continued to treat the alleged comment as a potential racial slur in their communications with Mr. Gao and with each other: Alexander Affidavit, Exhibits B, C, J, M, and O.
c. After learning of Mr. Gao’s report on June 21, 2021, Ms. Abercrombie promptly called a meeting with Mr. Henick on June 24, 2021. In the meeting, Ms. Abercrombie questioned Mr. Henick about his involvement in the incident, which he denied.
d. In the June 24, 2021 meeting, Ms. Abercrombie told Mr. Henick that the alleged comment, and comments of that type, were not appropriate if made by School District employees or on School District property, and Mr. Henick responded: “I one hundred percent agree [with] what you say”: Alexander Affidavit, Exhibit O.
e. When Mr. Gao followed up with the School District about the incident again on October 28, 2021, Mr. Wong responded the same day. He told Mr. Gao that he was “sad” to hear about the incident and offered to discuss the matter with Mr. Gao: Alexander Affidavit, Exhibit G.
f. The next day, Mr. Wong asked the School District’s superintendent for assistance to address Mr. Gao’s “accusation of racism”: Alexander Affidavit, Exhibit J.
g. The superintendent responded to Mr. Wong promptly and on November 3, 2021, the associate superintendent for the School District, Jody Langlois, emailed Mr. Gao. Ms. Langlois told Mr. Gao that his report of a “racist incident” had been followed up by the School District’s human resources department and addressed. She offered to meet to discuss the matter further with Mr. Gao. She also apologized that Mr. Gao had not learned of how the matter was dealt with sooner: Alexander Affidavit, Exhibits K, L and M.
[47] Considering all of the evidence, I conclude that Mr. Gao has no reasonable prospect of proving that the School District’s response to his complaint was discriminatory. In arriving at this conclusion, I have considered the evidence that the School District did not promptly relay the outcome of its investigation to Mr. Gao. Such delay is not ideal but is not fatal to the School District’s application. Its response is not held to a standard of perfection; and must be assessed as a whole, and in context: Hale, para. 27.
[48] On the whole, the evidence before me supports the School District’s submission that it: was appropriately alive to Mr. Gao’s report as a report of a racial slur; promptly investigated; accepted Mr. Gao’s perception of the comment as a racial slur; disavowed the alleged comment; and understood its obligation to deliver its services in a non-discriminatory manner.
[49] While the evidence suggests that the School District could have followed up with Mr. Gao sooner about the outcome of its investigation, there is no evidence before me that Mr. Gao followed up on his report before October 28, 2021 either. When he did inquire, the School District responded promptly. Further, viewed in context, the School District was addressing a report of a single instance of discrimination. There was no evidence of any repeated alleged instances of discrimination. The evidence points to the School District launching an investigation and response to Mr. Gao’s allegation that was reasonable and proportionate to the circumstances.
[50] Viewing the School District’s response on a standard of reasonableness, as a whole, and in context, I remain of the view that Mr. Gao has no reasonable prospect of proving that the School District’s response to his report was discriminatory.
IV ORDER
[51] Because Mr. Gao has no reasonable prospect of proving his allegations of discrimination, I dismiss his complaint under s. 27(1)(c) of the Code.
Amber Prince
Tribunal Member