Shaikh v. Colliers Project Leaders Inc. (No.2), 2026 BCHRT 93
Date Issued: April 9, 2026
File(s):CS-000871
Indexed as: Shaikh v. Colliers Project Leaders Inc. (No.2), 2026 BCHRT 93
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:
Ali (Alex) Shaikh
COMPLAINANT
AND:
Colliers Project Leaders Inc.
RESPONDENT
REASONS FOR DECISION
Tribunal Member: Jonathan Chapnick
Counsel for Complainant: Alex Li and Megan Pratt-Ahmad (temporary articled students), Kyra Benloulou, and Chris Heslinga
Counsel for Respondent: Alireza Alimadad
Date of Hearing: April 13-15, 2024
Location of Hearing: Videoconference
Closing submissions complete: April 8, 2025
I INTRODUCTION
[1] Alex Shaikh alleges that Colliers Project Leaders Inc. [Colliers] discriminated against him in employment based on disability, in contravention of s. 13 of the Human Rights Code.
[2] Colliers hired Mr. Shaikh to work as an assistant project manager with its biggest client. He started working for Colliers on January 6, 2020. Roughly seven weeks later, Colliers told Mr. Shaikh that it had decided to terminate his employment “due to performance related feedback from the client,” which included concerns regarding “disorganization, lack of focus, [and] limited meeting participation.” Mr. Shaikh says this was discrimination. He argues that his disability contributed to the behaviours in question and was therefore a factor in his dismissal, and Colliers failed to accommodate him.
[3] Colliers denies discriminating. It argues that the evidence does not connect Mr. Shaikh’s performance issues to his disability, and even if there was a connection, the company met its duty to accommodate.
[4] This case was heard by another Tribunal Member, who was unable to complete the matter. The case was reassigned to me for the purpose of making a final decision after listening to the audio recording of the hearing and reviewing all the evidence and arguments. The parties were given notice of the case’s reassignment and an opportunity to raise objections to proceeding in this way. Neither party objected.
[5] The oral hearing took three days to complete. Mr. Shaikh testified on his own behalf. Colliers called two witnesses. The parties entered various documents into evidence. After the hearing, the parties submitted written closing arguments. I have listened to the full audio recording of the hearing, and have considered all the evidence and submissions of the parties, including their pleadings. In this decision, I only refer to what is necessary to explain what I decided.
[6] For the reasons that follow, I find that Mr. Shaikh’s complaint is justified and order remedies as a result. My decision turns on two key determinations. First, I am satisfied that Mr. Shaikh’s disability caused or contributed to some of the behaviours that gave rise to his dismissal. Second, I am not persuaded that Colliers fulfilled its duty to accommodate.
[7] On behalf of the Tribunal, I apologize for the time it has taken to render this decision.
II Events giving rise to the complaint
[8] Mr. Shaikh’s complaint arises from events that occurred in January and February 2020. Unless indicated otherwise, the following circumstances are not in dispute.
[9] Mr. Shaikh was part of a team of Colliers employees working out of the Client’s office on a seconded basis, under the direction of a Colliers principal, Brendan Wilson. Mr. Shaikh was assigned to work on projects within the Client’s building improvement [BI] program. Almost immediately after he started working at the Client’s office, the Client expressed concerns about Mr. Shaikh. In particular, Mr. Wilson received negative feedback from the manager of the BI program [BI Manager], which Mr. Wilson subsequently discussed with managers within the Colliers team.
A. January 22 to February 6
[10] Mr. Wilson met with Mr. Shaikh on January 22, 2020 to discuss the performance feedback, which he summarized in a follow-up email:
To summarize, the client has spoken to me on two occasions, and once with [a Colliers manager], with concerns regarding your fit within the BI program – while providing the supporting examples we reviewed together today. The BI Team has also expressed some concerns regarding your focus and perceived lack of engagement during the training process, project onboarding, and during meetings and other less formal interactions.
[11] The next day, Mr. Shaikh told Mr. Wilson that he had medical conditions, including an anxiety diagnosis, which affected his formal and informal interactions with colleagues. Mr. Wilson relayed this information to a senior human resources manager at Colliers, Erma Hadzic.
[12] Ms. Hadzic met with Mr. Shaikh by phone on January 27. Her evidence is that she “arranged the meeting to address the identified concerns with his performance and also to assess whether he had medical needs which required accommodation.” During the meeting, Mr. Shaikh asked for a stand-up desk to alleviate back pain stemming from a motor vehicle accident several years ago. He also told Ms. Hadzic that he was confident that he could carry out his day-to-day job duties. Ms. Hadzic testified that, despite this assurance, she wanted “further reassurance from a professional, his physician, to ensure that nothing else further needed to be accommodated.”
[13] Mr. Shaikh did not request or propose any accommodations related to his anxiety condition on January 27. When asked about this in cross-examination, he testified that he was not in a position to make requests or proposals of this nature, because he had not yet talked to his doctor. In his view, the purpose of the conversation with Ms. Hadzic that day was to try to clarify what his condition entailed and his limitations, after which his doctor would evaluate him and provide information for Colliers’ review, so the company could determine “what they can accommodate with me or what they can’t.” Mr. Shaikh characterized the accommodation process as “a dialogue”:
Accommodation is not – I think it cannot be just seen as something that simply I demand and then I will be granted. I think everybody should understand here that this is a cooperative process and can only work if there was a collaborative approach to this. This is a two-way – or even a three-way – conversation actually, between me, Colliers, and my medical practitioners.
[14] Upon being pressed further on why he did not request any specific accommodation for his mental disability – and when he was asked what he, personally, felt he needed when he worked at Colliers – Mr. Shaikh testified that he needed time to address his disability-related behavioural issues.
[15] Following their meeting, Ms. Hadzic emailed a “functional abilities form” [FAF] to Mr. Shaikh on February 6, asking him to complete it with his doctor and return it at his earliest convenience.
[16] Also on February 6, Mr. Wilson met again with Mr. Shaikh to provide additional negative feedback received from the Client, which he later summarized in an email to Ms. Hadzic:
I spoke with Alex today again to relay some additional client feedback:
• Despite clear instruction regarding protocol on two separate occasions, Alex again disrupted the [BI Manager] with irrelevant/misguided questions.
• [Another Client representative] has commented that he has observed Alex socializing and watching videos on his cellphone during work hours. [The Client representative] noted that he only brought this up because the behavior has been excessive.
• The client has reiterated that they are “unsure if Alex is a fit for the Building Projects Program.”
[17] Mr. Wilson went on to tell Ms. Hadzic that he had observed Mr. Shaikh disrupting Colliers staff and Client employees during work hours. He said that it was “apparent that Alex is not a fit for the [Client] team,” and so Colliers needed “to find a way to remove him from the program in short order.”
B. February 10 to 18
[18] On February 10, Ms. Hadzic called Mr. Shaikh to inquire about his progress completing the FAF. She also reiterated the performance feedback provided by Mr. Wilson on February 6. During the call, Mr. Shaikh informed Ms. Hadzic that he felt harassed by Colliers. She told him she would need to investigate this. That evening, Mr. Shaikh initiated an internal complaint through Colliers’ “ethics and compliance reporting” hotline, which he expanded through subsequent reports to the hotline between February 12 and 18 [Internal Complaint].
[19] On February 13, Mr. Shaikh submitted the completed FAF to Ms. Hadzic. In the FAF, his doctor indicated that Mr. Shaikh had two types of reduced functional abilities. First, he had physical limitations connected to his lower back issues, in relation to which the doctor recommended a stand-up desk. Second, he had mild cognitive limitations, regarding which the doctor indicated that Mr. Shaikh had been referred to a specialist and was awaiting evaluation, and there would be an “update to follow” in terms of the timeline within which “normal functional abilities may resume.”
[20] On February 18, Mr. Wilson met with Mr. Shaikh for another “Client Performance Feedback Discussion,” during which Mr. Shaikh was told he would no longer be working with the Client. Mr. Wilson summarized their conversation in a subsequent email:
As communicated, we must remove you from involvement on the [Client] program of work effective today, due to performance related feedback received from the client. The client feedback we reviewed together included comments on work quality, general organization, lack of focus, meeting participation, tardiness, and socializing. Our primary client contact [i.e., the BI Manager] also made the comment that they do not see you as [a] fit on the [Client] program.
[21] Mr. Wilson told Mr. Shaikh to work from Colliers’ office beginning on February 21, and that Colliers would look for other assignments for him.
[22] Also on February 18, Ms. Hadzic became aware of the Internal Complaint and emailed Mr. Shaikh asking to meet with him to conduct an investigation interview. At the hearing, Colliers sometimes referred to Ms. Hadzic’s subsequent investigation process as the “Harassment Investigation.” I will do the same in this decision.
[23] Ms. Hadzic testified that she reviewed the Internal Complaint the day after receiving it. Colliers’ record of the Internal Complaint indicates that Mr. Shaikh alleged that there had been a change in tone towards him after he disclosed his anxiety condition and its connection to his workplace behaviour. He described feeling pressured and threatened by Ms. Hadzic’s February 10 phone call, and believed Colliers was “laying the groundwork for dismissal.” He described the tenor of his meetings with management as being “more formal, regimented, and documented.” He described being scrutinized related to his use of a computer drive and for wearing a strong cologne in the office. He alleged that the decision to remove him from working with the Client was retaliation for disclosing his disability.
C. February 20 and 21
[24] Ms. Hadzic’s interview of Mr. Shaikh took place on Thursday, February 20. During the interview, Mr. Shaikh alleged that the tone and manner of Mr. Wilson’s interactions with him changed after he disclosed his disability on January 23. He described Mr. Wilson as being cold, unsupportive, and unempathetic in their exchanges since that time. He felt singled out and said the negative feedback he was receiving from Mr. Wilson was disproportionate. He disputed that there were issues with the quality of his work and disputed the grounds of his removal from the BI program. He asserted that the negative feedback from the Client had come exclusively from the BI Manager, but he had mostly worked with other Client employees. He said it was important to consider their feedback as well.
[25] Ms. Hadzic asked Mr. Shaikh if there were witnesses she could speak to who could support his complaint. He responded that there were, mentioning certain Colliers staff by name, as well as a Client employee whose name he did not share with Ms. Hadzic. I will call the Client employee “MA.” Mr. Shaikh said he wanted to contact his witnesses first, to ask if they were willing to speak to Ms. Hadzic. He said he would confirm with Ms. Hadzic if they were willing to come forward and provide information for the Harassment Investigation.
[26] Ms. Hadzic testified that the interview was scheduled for an hour, starting at 1 p.m. Both parties testified that the meeting went quite long, with Mr. Hadzic specifying that it might have taken two or three hours to complete.
[27] Mr. Shaikh testified that he contacted MA immediately following the interview and asked to meet in person but did not divulge what he wanted to discuss. He testified that his intention was to ask MA to be a corroborating witness in the Harassment Investigation when they met in person. Colliers’ witnesses characterized Mr. Shaikh’s outreach to MA differently. Ms. Hadzic testified that, based on the timing of the February 20 meeting and subsequent events, she believed Mr. Shaikh “was trying to contact [MA] even prior” to the investigation interview, and speculated that Mr. Shaikh was trying to find a way to work with the Client again. Similarly, Mr. Wilson testified that Mr. Shaikh contacted MA in the hopes of getting more work with the Client. He characterized Mr. Shaikh’s outreach to MA as “direct insubordination.” I will address the parties’ conflicting evidence later in my reasons.
[28] After speaking to Mr. Shaikh, MA informed the BI Manager that they planned to go “for a friendly lunch next week.” The BI Manager, in turn, reached out to Mr. Wilson, asking why Mr. Shaikh was contacting MA. Mr. Wilson then emailed Mr. Shaikh, asking him to confirm the nature and intent of his contact with MA that day. Roughly an hour later, Mr. Shaikh emailed Ms. Hadzic, asserting that Mr. Wilson’s email infringed on his civil rights and asking her to “confirm if I’m under any statutory restriction to engage in a personal relationship with a [Client] employee following my removal from the BI program.” Mr. Shaikh subsequently responded to Mr. Wilson’s email, saying that he had “a friendly relationship with [MA], so I do interact with him from time to time.”
[29] Ms. Hadzic and Mr. Shaikh continued their investigation interview on February 21, during which he provided additional information in support of his complaint. At the end of their meeting, Ms. Hadzic advised that she would take a few days to summarize their conversation and would be in touch regarding next steps.
D. February 24 to 27
[30] On Monday, February 24, Colliers decided to terminate Mr. Shaikh’s employment. The next day, Mr. Wilson and Ms. Hadzic met with Mr. Shaikh at Colliers’ office and provided him with a letter signed by a Colliers vice president [Termination Letter], which stated in relevant part:
You are terminated due to performance issues that were communicated with you over the course of your employment. The decision to terminate was due to performance related feedback received from the client. The client feedback included and is not limited to work quality, disorganization, lack of focus, limited meeting participation, tardiness, and disproportionate socializing. Most recently you have been in contact with the client directly after having been removed from the project. This puts the Company in a situation where we could be at risk to lose business. The situation at this point has become unacceptable and we are left with no other choice but to terminate your employment effective immediately.
[31] Mr. Shaikh was not told the outcome of the Internal Complaint. Ms. Hadzic’s evidence is that she thoroughly considered the information he provided in their meetings and found that he had not been harassed in the course of his employment. She found “that the matters he described and complained of were more appropriately characterized as being managed or supervised.” Based on her findings, she determined “that it was not necessary to interview other persons and that no formal investigation was warranted.”
[32] Mr. Shaikh filed his human rights complaint with the Tribunal on February 26. On February 27, he attended the specialist evaluation referenced in the FAF. Specifically, he attended a consultation with a psychiatrist [Psychiatrist], whose report was entered into evidence at the hearing [Medical Report]. I will discuss it below.
III Decision
[33] Mr. Shaikh alleges discrimination in contravention of s. 13 of the Code. For his complaint to succeed, he must first make his case by proving that he (1) had a disability and (2) experienced an adverse impact in employment, and that (3) his disability was a factor in the adverse impact: Moore v. BC (Education), 2012 SCC 61 at para. 33. If he makes his case, the burden shifts to Colliers to establish a justification defence, which involves consideration of the concept of accommodation to the point of undue hardship: British Columbia (Public Service Employee Relations Commission) v. BCGSEU, [1999] 3 SCR 3 [Meiorin] at para. 60.
[34] I begin with the first element of Mr. Shaikh’s case.
A. Did Mr. Shaikh have a disability?
[35] The Medical Report, dated February 27, 2020, states that Mr. Shaikh had generalized anxiety disorder [GAD], persistent depressive disorder, and somatic symptom disorder [SSD], and met the criteria for several personality disorders.
[36] While not conceding that Mr. Shaikh had a disability, Colliers spends little time in its closing argument contesting the first element of his case. It says the “only piece of evidence provided by [Mr. Shaikh] regarding his mental disorder is an assessment … that provides a number of diagnoses and recommendations.” It notes that the assessment took place after Mr. Shaikh filed his complaint with the Tribunal and asserts that the Medical Report was produced “in contemplation of litigation.” It also says Mr. Shaikh “has not sought any treatment for his alleged mental disabilities.”
[37] For the following reasons, I am satisfied that Mr. Shaikh had a mental disability at the time of the events that gave rise to the complaint.
[38] First, I accept the diagnostic information in the Medical Report. Although the Psychiatrist was not called as a witness, Colliers did not object to Mr. Shaikh entering the report into evidence, and did not challenge the Psychiatrist’s knowledge or qualifications. The Medical Report is clear and sufficiently thorough and I am satisfied that the diagnostic information provided is reliable.
[39] Second, on the evidence, I find that Mr. Shaikh has a history of chronic and severe anxiety and depressive symptoms, which pre-date the Medical Report. Mr. Shaikh’s testimony regarding his medical history was clear and forthright. I have no reason to question its reliability. He testified, and the Medical Report reflects, that he began experiencing anxiety and depression symptoms in the mid-2000s and was first diagnosed with GAD in around 2009 or 2010. He also testified, and the Medical Report reflects, that he has been experiencing anxiety related to chronic back pain since around 2014 or 2015. I am satisfied that the evidence establishes, on a balance of probabilities, that Mr. Shaikh’s diagnoses and mental health issues amount to a mental disability under the Code, which was present at the time of the events that gave rise to the complaint.
[40] Third, I interpret Colliers’ assertion that the Medical Report was produced in “contemplation of litigation” as suggesting that it is perhaps untrustworthy or unreliable – maybe written to bolster Mr. Shaikh’s position in this proceeding. I do not accept this. Colliers has not pointed me to any evidence that could support such a suggestion. The fact that the Medical Report was written after the complaint was filed, on its own, is not enough to make it suspect.
[41] Finally, it is not true that Mr. Shaikh “has not sought any treatment for his alleged mental disabilities.” He testified, and I accept, that he has tried prescription medication and certain therapies, but has largely chosen to attempt to manage his conditions on his own, through meditation, supplements, and self-help methods. In any event, evidence of medical treatment is not a prerequisite for proving a disability under the Code.
[42] Mr. Shaikh has proven the first element of his case.
B. Did Mr. Shaikh experience an adverse impact in employment?
[43] Mr. Shaikh argues that he experienced “multiple adverse impacts” in employment, “culminating in the termination of his employment on Feb 25th, 2020.” In his closing argument, he describes his dismissal as “the primary adverse impact of this complaint,” but also says there “was a general strain” between him and Colliers, which led to that adverse impact. Based on his evidence at the hearing, and considering his discussion of that evidence in closing submissions, I can certainly guess what Mr. Shaikh may view as the “multiple adverse impacts” in his employment that led to his termination. He believes that Colliers harassed him, wrongfully removed him from the BI program, and did not properly investigate the Internal Complaint. However, his complaint to this Tribunal (and subsequent Form 3 amendment) centered on his dismissal being the adverse impact in this case. Further, in closing submissions, he has not clearly argued that Colliers’ other acts or omissions were adverse impacts within the meaning of the discrimination analysis. Instead, his closing submissions – like the complaint itself – centre on his dismissal, which is the alleged adverse impact to which Colliers responded in its closing argument. As a result, in fairness, I have focussed my discrimination analysis on the termination of Mr. Shaikh’s employment.
[44] Mr. Shaikh’s dismissal – Colliers’ refusal to continue to employ him – was an adverse impact in his employment: Code, s. 13(1)(a). He has proven the second element of his case.
C. Was Mr. Shaikh’s disability a factor in his dismissal?
[45] Most of the parties’ submissions regarding Mr. Shaikh’s case relate to the third element that he must prove.
[46] There are several ways to connect a protected characteristic, like a disability, to an adverse impact, like dismissal. In the present case, Mr. Shaikh argues that his mental disability contributed to the behaviours that gave rise to Colliers’ decision to terminate him. Colliers argues the opposite. It says “the evidence of Ms. Hadzic and Mr. Wilson accurately laid out the issues and reasoning for [Mr. Shaikh’s] termination, none of which relate to [his] purported protected characteristic of mental disability.” I turn now to that evidence.
[47] First, Ms. Hadzic testified that she prepared the Termination Letter. The reasons for termination set out in the letter are:
a. Performance issues that were communicated to Mr. Shaikh over the course of his employment;
b. Performance-related feedback received from the Client, including “work quality, disorganization, lack of focus, limited meeting participation, tardiness, and disproportionate socializing; and
c. Contacting the Client directly after having been removed from the BI program, which put Colliers in a situation where it could lose business.
[48] Second, in a September 14, 2020 affidavit, Ms. Hadzic stated that Colliers’ decision to terminate Mr. Shaikh’s employment was based on the following factors, which overlap with, but also differ somewhat from, the reasons in the Termination Letter:
(a) He had not met expectations as part of the BI team and our client specifically asked that he be removed from the [Client] project. Despite this, Colliers was prepared to continue his employment and give him another chance with a new assignment.
(b) After being removed from the BI team, Colliers’ learned that he may have misrepresented his employment history when he was initially hired. This discovery significantly undermined Colliers’ trust in him; and
(c) After being removed from the BI team, Mr. Shaikh contacted an employee of [the Client], causing that employee discomfort and damaging Colliers’ credibility with [the Client] who had specifically asked for him to be removed from the project.
Whereas Colliers was prepared to overlook some of the issues, his improper contact with the [Client’s] employee after being removed from the project was determinative of his fate and resulted in his dismissal.
[49] Third, Ms. Hadzic testified regarding the reasons for Mr. Shaikh’s dismissal. Again, here, her evidence was slightly different. Specifically, in cross-examination, Ms. Hadzic testified that Mr. Shaikh’s alleged misrepresentation of his employment history “had nothing to do with our final decision to terminate his employment.” She stated that “this was not the factor; the factor was solely based on his performance as evidence[d] from our client and our leadership team.” She said Mr. Shaikh’s alleged misrepresentation was “not ultimately where the decision was drawn from; it was all the other factors, performance-based.” She added that it was not only Mr. Shaikh’s performance issues, but also “his inappropriate action of contacting [MA]” that ultimately gave rise to the decision to dismiss him.
[50] Finally, Mr. Wilson testified about the reasons for Mr. Shaikh’s dismissal. His evidence overlapped with parts of Ms. Hadzic’s. He said the termination was “performance-related, it’s documented very thoroughly.” He explained:
The fact of the matter was, we had demonstrated, documented performance issues with Alex, of an overwhelming magnitude, where it was extremely clear to me as a manager, and our team, and the client, that he was incapable of doing the tasks required of the role even at a basic level. And he went further to disrupt the client and cause a bunch of issues there, even before he was directly insubordinate … . So essentially, it was a culmination of performance issues that were documented, followed by that direct insubordination, and directly impacting the company’s reputation, where we made that decision to terminate his employment.
[51] Considering all of this evidence together, and despite some of its inconsistencies, I find that Colliers’ dismissed Mr. Shaikh because of the job performance issues that were documented during his term of employment and in the Termination Letter, including his outreach to MA on February 20.
[52] Whether there is a connection between a protected characteristic and an adverse impact “is a matter of fact:” Stewart v. Elk Valley Coal Corp., 2017 SCC 30 at para. 46. To make his case, Mr. Shaikh must only establish that his disability was one of the factors in his dismissal, even if it was not the sole or overriding factor: Québec (Commission des droits de la personne et des droits de la jeunesse) Bombardier Inc. (Bombardier Aerospace Training Center), 2015 SCC 39 at paras. 45-52. Based on the materials before me, I am not convinced that Mr. Shaikh’s mental disability contributed to all of the issues that gave rise to the termination of his employment. In my view, however, he has established that his disability contributed to some of the behavioural job performance issues that gave rise to his dismissal. As a result, I find that his disability was a factor in the termination of his employment. The following is my reasoning.
[53] There is no disputing that the behavioural issues that were documented during Mr. Shaikh’s employment and/or in the Termination Letter included: disorganization, lack of focus, perceived lack of engagement, limited meeting participation, and excessive socializing [Behaviours]. I have already found that these Behaviours, and other, documented job performance issues, gave rise to Colliers’ decision to dismiss Mr. Shaikh. On the evidence presented, I am satisfied on a balance of probabilities that Mr. Shaikh’s mental disability (i.e., GAD, depression, SSD, and personality disorders) contributed to the Behaviours. I make this determination based on (1) Mr. Shaikh’s testimony regarding his disability and how it manifests, (2) the FAF, and (3) the Medical Report.
[54] Mr. Shaikh testified that his GAD “generally manifests as nervousness, restlessness, and chattiness.” He said that when these behaviours occur in the workplace, they can look like socializing. He also described having difficulties concentrating, and attributed certain ongoing communication issues to his GAD, such as problems with body language and posture, difficulties maintaining eye contact, and difficulties paying attention during exchanges with colleagues. He testified that he has struggled with these behavioural issues at work for many years, dating back to his first engineering job in around 2012 or 2013.
[55] Mr. Shaikh described the symptoms of his depression as including sadness, feelings of emptiness and hopelessness, and low self-esteem. He described his SSD as involving increased sensitivity to his chronic back pain, which “sets off a cycle of exaggerated worrying” and “further perceived pain.”
[56] Mr. Shaikh also testified about the personality disorders for which the Psychiatrist found he screened positive. He said those disorders can cause him to blink his eyes and clear his throat repetitively; be overly enthusiastic, which – in the workplace – can look like excessive socializing; and ponder excessively on certain aspects of work tasks, and minimally on others, which can result in him needing repeated clarification regarding scopes of work. He testified that he takes regular, short breaks from working to cope with back pain-related issues. He said he listens to music from his phone, with headphones on, to help maintain focus and concentration on his assigned work tasks.
[57] I find that key cognitive issues described in Mr. Shaikh’s testimony are corroborated by his doctor’s feedback in the FAF. The FAF, which was completed on February 11, 2020, states that Mr. Shaikh had mild limitations in respect of the following cognitive abilities: “attention/ concentration,” “interpersonal/social interaction,” “multi-tasking/organization,” and “decision-making/problems solving.” Mr. Shaikh’s doctor referred him to the Psychiatrist for a specialist evaluation of these issues, the findings of which were outlined in the Medical Report.
[58] I find that the Medical Report confirms that at least some of the cognitive issues described by Mr. Shaikh and corroborated in the FAF were related to his disability. In discussing the history of Mr. Shaikh’s cognitive issues in the Medical Report, the Psychiatrist cites the “increasing difficulties with focus” and “negative feedback from employers” that Mr. Shaikh described experiencing since he first started working in 2012. The Psychiatrist cites the example of “looking around and not attending instructions when he is receiving some training.” He goes on to find that, given the “absence of significant childhood academic dysfunction it’s more likely [Mr. Shaikh’s] significant cognitive symptoms are related to his depression anxiety and other mental health issues, but ADHD cannot be completely ruled [out] at this time.”
[59] Viewed separately, each of Mr. Shaikh’s testimony, the FAF, and the Medical Report may not be enough, on its own, to prove the factual nexus required to make his case. However, taken together, I am satisfied that the combined evidence establishes that, in his employment at Colliers, Mr. Shaikh’s disability contributed to the Behaviours. Specifically, I find that it is more likely than not that his disability caused or contributed to him: being disorganized; having difficulties with focus and concentration; not paying (or appearing not to pay) attention in interactions with colleagues; and behaving in ways that could be viewed as excessive socializing.
[60] In sum, then, I find that Mr. Shaikh’s mental disability caused or contributed to the Behaviours, which were among the performance issues that gave rise to Colliers’ decision to terminate his employment. As a result, Mr. Shaikh has established that his disability was a factor in his dismissal. He has made his case. The burden therefore shifts to Colliers to justify what happened.
[61] The Code provides a justification defence against a complaint of discrimination in employment where the refusal to continue to employ a person relates to their protected characteristic: Code, s. 13(4). There are three steps for establishing this defence: Meiorin at paras. 57-67. The third step involves consideration of the concept of accommodation to the point of undue hardship, which is where the parties made their arguments. I turn to those arguments next.
D. Did Colliers fulfil its duty to accommodate?
[62] “’Accommodation’ refers to what is required in the circumstances to avoid discrimination”: Grismer at para. 22. The “standard for accommodation is reasonableness, not perfection”: McCulloch v. Nociar and another (No. 2), 2025 BCHRT 111, citing Klewchuk v. City of Burnaby (No. 6), 2022 BCHRT 29 at para. 425; see Central Okanagan School District No. 23 v. Renaud, [1992] 2 SCR 970 [Renaud] at 944-995. It is about doing what is reasonable and practical to avoid the negative impact related to the affected person’s protected characteristics: Meiorin at para. 38.
[63] An employer’s duty to accommodate an employee comes with positive, procedural obligations. For example, where an employer is (or reasonably ought to be) aware of a possible connection between an employee’s job performance issues and their disability (or possible disability), the employer must make reasonable inquiries into that possibility and the employee’s potential need for accommodation before dismissing or taking other action against them: see Willems-Wilson v. Allbright Drycleaners Ltd., 1997 CanLII 24821 (BC HRT); Martin v. Carter Chevrolet Oldsmobile, 2001 BCHRT 37 at para. 29; Davis v. Sandringham Care Centre and another, 2015 BCHRT 148 at para. 328. These inquiries include obtaining all reasonably necessary information about the employee’s disability, at least where it is readily available: Gordy v. Painter’s Lodge (No. 2), 2004 BCHRT 225 at para. 84.
[64] Assuming the employee is doing their part in bringing relevant accommodation-related information to the employer’s attention, other procedural obligations on the employer include determining how the employee can be reasonably accommodated, originating solutions, and initiating reasonable proposals: Renaud at 994-995. Concomitant with the employer’s duty to undertake a search for reasonable accommodation is the employee’s obligation to facilitate that search by cooperating in the accommodation process: Renaud at 994. When an employer has initiated a proposal that is reasonable and would, if implemented, fulfil the duty to accommodate, the employee must not prevent its implementation by their unreasonable action or inaction: see Renaud at 994; Latreille v. Solectron Global Services (No. 2), 2006 BCHRT 9 at para. 48.
[65] Mr. Shaikh argues that he did his part in the accommodation process, but Colliers did not do its part. He says that, when he disclosed a potential connection between the negative performance feedback and his medical conditions on January 23, Colliers “had a duty to inquire about the connection.” He says Colliers began fulfilling this duty by providing the FAF, but failed to follow through. He argues that Colliers’ inquiries into his disability and accommodation needs were incomplete when he was removed from the BI program, and remained unresolved when he was dismissed. He asserts that Colliers “failed [him] at each turn,” including “through not upholding [its] duty to accommodate to the point of undue hardship, and through deciding to terminate [him] because of the behaviours stemming from his mental disability just days after he submitted the FAF in the hopes of acquiring accommodations and keeping his employment.”
[66] Colliers argues that it met its obligations and Mr. Shaikh’s dismissal was justified. It says that, within days of the company becoming aware of Mr. Shaikh’s potential need for accommodation, Ms. Hadzic met with him “to discuss what accommodation [he] required,” but no accommodation was sought at that point. Further, Colliers says that, out of “an abundance of caution, [Mr. Shaikh] was asked to fill out the Functional Abilities Form,” but “[o]nce again, the form did not indicate any need for accommodation except for the stand-up desk.” Colliers rejects Mr. Shaikh’s contention that these steps did not fulfil its duty to inquire and accommodate. It characterizes Mr. Shaikh’s position as claiming “that Colliers should have ignored [his] performance issues … because they may have arisen from anxiety.” Colliers says this claim is unreasonable:
Colliers is a service provider. The interactions of its employees with their clients forms the basis of Colliers’ business. Ignoring [Mr. Shaikh’s] performance issues brought up by the client, ignoring the client’s request for his removal from the program, and “granting [him] more time” as his performance issue[s] continued is far beyond the point of undue hardship.
[67] Colliers says that, despite “a significant amount of inquiry, at no point was [it] aware of any accommodation that [Mr. Shaikh] needed.” It argues that continuing to employ a person who “did not follow instructions [when he contacted MA], had persistent performance issues, and actively damaged the reputation of the company is beyond undue hardship.”
[68] I accept Colliers’ evidence that Mr. Shaikh’s performance issues arose at a critical time for the company, when it was heading into a request-for-proposals period with its biggest client. I accept Mr. Wilson’s testimony that he was “very much put into damage control with regards to the relationship between Colliers Project Leaders and [the Client] at the time.” However, for the following reasons, I am not persuaded that Colliers fulfilled its duty to accommodate Mr. Shaikh.
[69] To start, I do not accept Colliers’ suggestion that it fulfilled its obligations simply by meeting with Mr. Shaikh on January 27 and obtaining the information in the FAF. In the circumstances of this case, its duty to accommodate did not end there. For the accommodation process to have been effective when Mr. Shaikh’s performance issues arose, Colliers needed to work together with him to identify his disability-related functional limitations and determine whether he could do his job with or without modifications to the status quo. By definition, this was a process that was probably going to take some time, as necessary medical information was obtained, assessments were done, and options were investigated. Where an employee’s functional limitations are potentially significant – in the present case, in terms of their impact on the employer’s reputation and client relationships – “it is unreasonable to expect an overnight solution”: Graham v. School District No. 38 (Richmond) and CUPE Local 716, 2005 BCHRT 520 at para. 42.
[70] Colliers did not need to disregard the Client’s performance feedback regarding Mr. Shaikh, nor was it required to ignore the Client’s related request for his removal from the BI program. However, before acting on the Client’s concerns and wishes in a way that adversely impacted Mr. Shaikh in his employment (i.e. before terminating his employment), Colliers was obligated to make reasonable inquiries into the possible connection between the reported performance issues and Mr. Shaikh’s disability, and into Mr. Shaikh’s potential need for accommodation. I find that Colliers started this process, but did not finish it. It did not take reasonable steps to obtain all necessary and readily available information about Mr. Shaikh’s disability before dismissing him. Colliers knew – or ought reasonably have known – based on the FAF that: in the opinion of Mr. Shaikh’s doctor, he had mild cognitive limitations in areas that seemingly overlapped with some of his performance issues; he had been referred for a specialist assessment of the limitations; and a medical update was going to follow after the assessment. Under the circumstances, it was unreasonable for Colliers to terminate Mr. Shaikh’s employment based (at least in part) on those performance issues without waiting for that medical update.
[71] I am not satisfied that Colliers has proven it would have experienced undue hardship if it did not dismiss Mr. Shaikh on February 25. The point of undue hardship is reached when reasonable accommodations are exhausted and only unreasonable or impractical options remain: Kelly (by Kelly) v. Saputo Dairy Products Canada and another (No. 3), 2021 BCHRT 128 at para. 166, quoting Council of Canadians with Disabilities v. VIA Rail Canada Inc., 2007 SCC 15 [VIA Rail] at para. 122. Colliers process of accommodating Mr. Shaikh did not reach the stage of considering any options for alleviating his disability-related performance issues, let alone unreasonable or impractical options. The process was still relatively early in the inquiry stage when it was halted by Colliers’ decision to dismiss Mr. Shaikh.
[72] I acknowledge Colliers’ assertion that “the foundation of the employment relationship was ultimately destroyed when [Mr. Shaikh] reached out to [MA].” I have considered this argument in the context of the accommodation process that was ongoing at the time. At any stage of such a process, the employer’s duty to accommodate may reach its endpoint if the employee fails to do their part to facilitate the employer’s search for a reasonable accommodation: Renaud at 994-995. If the employer can show “that it was prevented from achieving a reasonable accommodation by the unreasonable action or inaction of the complainant, the [employee’s] complaint may fail”: Latreille at para. 48. I am not satisfied that this was the case here.
[73] As I discussed above, the parties’ witnesses have provided conflicting evidence regarding Mr. Shaikh’s outreach to MA. In these circumstances, I must assess the credibility and reliability of each witness’ evidence to make findings of fact, considering factors such as: the firmness of the witness’ memory; their ability to resist the influence of the interest to modify their recollection; whether their testimony is consistent with other independent evidence (external consistency); whether their evidence remained consistent during this proceeding (internal consistency); whether their evidence seems unreasonable, impossible, or unlikely when weighed with common sense; whether their testimony is based on their first-hand observations or knowledge, or whether it is second-hand in nature or based on speculation and drawing conclusions; whether their account contains appropriate details; and if their account is vague, the reason why: see Bradshaw v. Stenner, 2010 BCSC 1398, aff’d 2012 BCCA 296, leave to appeal refused, [2012] S.C.C.A. No. 392, at para. 186; Wafi v. Columbia Glazing Systems and another, 2024 BCHRT 215 at paras. 22-24; Clarke v. City of Vancouver and another, 2024 BCHRT 298 at paras. 22-23; Fletcher v. Lifestyle Hearing Corporation, 2025 BCHRT 93 at para. 45.
[74] Mr. Shaikh testified that he contacted MA immediately following the interview with Ms. Hadzic on February 20. He said his intention was to ask MA to be a corroborating witness in the Harassment Investigation. He testified that he told Ms. Hadzic at the investigation interview that he was going to make this outreach to a Client employee (and specific Colliers employees) for this purpose. He said he interpreted their conversation as granting him a couple of days to do so, during which time the Harassment Investigation would be on standby pending him bringing witnesses forward. Mr. Shaikh testified that he did not disclose all of this when Mr. Wilson asked him about his outreach to MA because the Internal Complaint was partly against Mr. Wilson and the Harassment Investigation process was confidential. He said he emailed Ms. Hadzic about his civil rights because he had never experienced an employer inquiring into his private communications with a colleague in this way and wanted to know if he was broadly restricted from contacting MA.
[75] In my view, Mr. Shaikh’s testimony makes sense. It also aligns with all of the relevant documentary evidence, including Mr. Shaikh’s emails on February 20 and 21, and Ms. Hadzic’s notes of the investigation interview [Interview Notes]. On the second last page of the Interview Notes, Ms. Hadzic writes:
Erma follow up question: Who can I speak to that witnessed the interactions that made you uncomfortable?
Alex wants to check in with these individuals he has mentioned above, both internal team members [names of Collier employees omitted] and [Client] contact. He would like to contact them first and wants to ask them if they are ok to speak to Erma to be fair as it’s their personal prerogative. Alex will further confirm with Erma if they are willing to come forward and willing to volunteer information.
[76] At the hearing, Ms. Hadzic did not deny that this was how their conversation went. However, she testified, and I accept, that she did not expressly direct or instruct Mr. Shaikh to reach out to a Client employee. She said she would never have done so, particularly given that Mr. Shaikh had been removed from the BI program. She said Mr. Shaikh’s actions in contacting MA were very concerning. When asked in cross-examination if she had cautioned Mr. Shaikh against contacting a Client employee when he informed her of his intentions, she said she did “not recall being that direct or specific with him.” She testified that “it was maybe a misjudgement on my part to think that, knowing what just transpired, he likely should have used sound judgment not to go to the Client, because he was removed two days prior to this event.”
[77] I do not accept Ms. Hadzic’s speculation that Mr. Shaikh was trying to contact MA prior to the Harassment Investigation in order to find a way to work with the Client again. Mr. Shaikh denied this and there is no concrete evidence before me to support it. Nor does the evidence establish that the timing of the various communications on February 20 precluded Mr. Shaikh’s version of events.
[78] I also reject Mr. Wilson’s evidence regarding the content of Mr. Shaikh’s exchange with MA. In an email to Ms. Hadzic on February 21, Mr. Wilson described his exchanges with the BI Manager and MA on February 20 as follows:
The events went like this:
· [The BI Manager] pulled me into a meeting room mid-afternoon and asked me why Alex had been reaching out to [MA] that day, given that Alex was no longer on the program. Prior to this, I was unaware Alex had done this.
· [The BI Manager] said that [MA] had contacted her to tell her that Alex was contacting him, and that “he didn’t want to be put in a compromising position”,
· I spoke to [MA] and apologized for making him feel like he was put in a compromising position. I then reiterated to [MA] that Alex was no longer working on the [Client] program,
· [MA] wouldn’t say much about what was said, and tried to downplay things once he knew they had been brought to my attention. I didn’t push for details, however; our conversation made two things clear:
o [MA] felt it necessary to clarify he wasn’t in a position to affect how much work Alex was getting with [the Client],
o [MA] felt it necessary to clarify that [he] wasn’t the kind of person that would try to influence things beyond his job description.
What I can infer is that Alex reached out to [MA] because he had developed a quick connection with him at the [Client] office. Alex may have asked some questions about not getting enough work and made [MA] feel uncomfortable enough that he raised it to [the BI Manager].
[79] Mr. Wilson gave similar evidence in direct examination – namely, that he had received (third-hand) information from the BI Manager, which did not include a description of the content of Mr. Shaikh’s conversation with MA. He inferred from this information that Mr. Shaikh had gone to MA in the hopes that MA could exercise some influence at the Client and get Mr. Shaikh more work, testifying that it was his “opinion” that Mr. Shaikh’s interaction with MA “was directly related to Alex’s attempt to get back on the [Client] program in an inappropriate way.”
[80] Mr. Wilson’s evidence shifted slightly in cross-examination. His description of the content of Mr. Shaikh’s exchange with MA was no longer based on inferences drawn from his conversations with the BI Manager and MA. Instead, Mr. Wilson testified that MA had actually told him directly that Mr. Shaikh asked MA questions about not getting enough work: “[MA] did, in fact, mention it. And that is why I was able to articulate it in this email. It was not speculation.” When asked about his use of the word “may” in the above email (i.e., “Alex may have asked some questions about not getting enough work”), Mr. Wilson replied: “I wrote that word. But I stand by what I wrote in the point form paragraph as my recollection of the conversation with [MA].”
[81] Overall, I found Mr. Wilson’s evidence in this area to be equivocal and inconsistent. His claim, in cross examination, that MA told him directly that Mr. Shaikh asked MA about not getting enough work does not align with the wording of his February 20 email, and was a change from what he said in direct examination. I decline to rely on his evidence, and prefer the testimony of Mr. Shaikh, who was the only witness to provide first-hand testimony regarding the content, nature, and purpose of his outreach to MA on February 20.
[82] To summarize, I find that: Mr. Shaikh told Ms. Hadzic that he intended to contact a Client employee to be a corroborating witness in the Harassment Investigation; Ms. Hadzic did not prohibit him from, or even caution him against, doing so; after which Mr. Shaikh went ahead and did what he said he was going to do.
[83] Colliers argues that Mr. Shaikh should have known better and is attempting to “displace responsibility” by pointing out Ms. Hadzic’s role in what happened. I disagree. Mr. Shaikh’s outreach to MA was for the purpose of the Harassment Investigation. Through its senior HR manager, who was responsible for conducting the investigation, Colliers had notice of Mr. Shaikh’s intention to contact a Client employee for this purpose. It had an opportunity – and the responsibility – to manage its Harassment Investigation and the participants in it. It did not do so. I accept that Mr. Shaikh’s confidential outreach to MA might have upset the BI Manager and could have disrupted Colliers’ relationship with the Client. However, under the circumstances, I am not satisfied that it was unreasonable for Mr. Shaikh to believe that he was permitted to make that outreach for its specific purpose. As a result, in doing so, he did not engage in unreasonable action that prevented Colliers from accommodating him, and I am not persuaded that he pushed Colliers to the point where his immediate dismissal was its only reasonable option.
[84] Finally, I acknowledge the emphasis in Colliers’ submissions on Mr. Shaikh’s failure to request or propose any accommodations related to his mental disability. Colliers correctly observes that no such accommodations were put forward by Mr. Shaikh at the January 27 meeting with Mr. Hadzic, and the FAF did not indicate or suggest any accommodative measures other than a stand-up desk, which was provided. But these observations miss the point. Mr. Shaikh was doing his part in the accommodation process. After receiving negative feedback on January 22 regarding his job performance, he immediately informed Colliers that he had a mental disability, which was potentially connected to at least some of the reported performance issues. A few business days later, he met with Colliers to provide further information regarding his health circumstances and workplace needs and agreed to have his doctor complete the FAF. Mr. Shaikh promptly met with his doctor, completed the FAF, and submitted it to Colliers within a week of receiving it. At the same time, he informed Colliers that additional, necessary medical information was forthcoming from a specialist and arranged to obtain that information in a timely manner. Mr. Shaikh was doing what he was supposed to do. Colliers’ role was to take the information he gave them, ask for more if they needed it, and then work with him to determine whether reasonable accommodation was possible. It was Colliers’ responsibility, not Mr. Shaikh’s, to originate solutions and initiate reasonable proposals.
[85] In sum, then, I find that Colliers did not meet its positive, procedural obligations in the accommodation process, and foreclosed the possibility of any reasonable, substantive accommodation outcomes by unreasonably terminating Mr. Shaikh’s employment during the inquiry stage of the process. Accordingly, I am not satisfied that Colliers fulfilled its duty to accommodate Mr. Shaikh. As a result, Colliers has not established its justification defence. Mr. Shaikh’s dismissal was therefore discrimination. His complaint of discrimination in contravention of s. 13 of the Code is justified.
IV Remedies
[86] Because I have decided that the complaint is justified, I now turn to the question of remedies.
[87] Under the Code, a cease and refrain order is mandatory if the Tribunal determines that a complaint is justified. I therefore order Colliers to cease the contravention of the Code and refrain from committing the same or a similar contravention: Code, s. 37(2)(a).
[88] Mr. Shaikh also seeks a wage loss award and compensation for injury to his dignity, feelings, and self-respect. I address those remedies next.
A. Compensation for lost wages
[89] Section 37(2)(d)(ii) of the Code gives the Tribunal discretion to order the respondent to compensate the complainant for all or part of their wages or salary lost because of the discrimination. Under this provision, Mr. Shaikh seeks a wage loss award of $129,230.40.
[90] The goal of a compensation award under s. 37(2)(d)(ii) is to restore the complainant to the financial position they would have been in had the discrimination not occurred: Gichuru v. Law Society of British Columbia (No. 9), 2011 BCHRT 185 [Gichuru] at para 260, aff’d 2014 BCCA 396; Walsh v. Mobil Oil Canada, 2013 ABCA 238 at para. 33. To that end, a wage loss award aims to fully compensate the complainant for wages lost “solely as the result of the discrimination”: Benton v. Richmond Plastics, 2020 BCHRT 82 at para. 82, quoting Ayangma v. Eastern School Board and another, 2008 PESCAD 10 at para. 70.
[91] The burden of establishing an entitlement to compensation is on the complainant: Gichuru at para. 301. The evidence must support a finding of some causal connection between the discrimination and the loss claimed: Gichuru at para. 302. If a causal connection is established, the Tribunal must determine the appropriate amount of compensation: Gichuru at para. 303. The onus is on Mr. Shaikh to prove the amount of his entitlement. A claim for compensation may be denied if there is insufficient evidence to support it: Francis v. BC Ministry of Justice (No. 5), 2021 BCHRT 16 at para. 83. Determining the amount of a wage loss award is a matter of discretion for the Tribunal, to be exercised on a principled basis: Gichuru at para. 303. In addition to accounting for income earned during the claim period, the Tribunal can reduce a wage loss award if the complainant failed to reasonably mitigate their damages, or to account for other contingencies: Benton at para. 91; Ayangma at para. 67.
[92] According to his employment agreement with Colliers, Mr. Shaikh’s annual salary was $70,000, making his gross weekly pay $1,346.15. In seeking a wage loss award of $129,230.40, he submits that he was unemployed for a 96-week period, from March 2020 to January 2022 [Claim Period].
[93] Mr. Shaikh testified, and I accept, that he lives with, and is supported by, his family. He testified that he has been unemployed since his dismissal in 2020. He did not explain why he is only seeking wage loss for part of that time period. In terms of his efforts to mitigate his damages, Mr. Shaikh testified that he has been applying for jobs since March 2020 and has had a number of job interviews. He provided documentary evidence of invitations for nine interviews between May and July 2020. He also provided documents showing three invitations for job interviews between September and November 2021, and three invitations outside the Claim Period, in March and April 2022. In addition, Mr. Shaikh testified that he owns and operates an incorporated consulting company. He said he did consulting through his company before he was employed at Colliers, and began providing consulting services again in or around summer 2020. He testified that the revenues from his consulting company are fairly low; he estimated recent annual revenue of between $15,000 and $20,000. He testified that the revenue earned within the corporation is used to pay company expenses and is not withdrawn as personal income. He said he has not needed to file personal income tax returns since 2020 because he has not earned any income from employment.
[94] Colliers says the Tribunal should not order a wage loss award, making several arguments against Mr. Shaikh’s claim.
[95] First, it argues against there being any causal connection between the discrimination and the loss claimed. Citing Harder v. Tupas-Singh and another, 2022 BCHRT 50 and Christensen v. Save-a-Lot Holdings Corp. (No. 3), 2023 BCHRT 125, Colliers says that “any discrimination … was not the cause of claimed wage loss, as [Mr. Shaikh’s] employment … was unlikely to continue for a significant period of time following the termination due to improper conduct and poor performance.” It argues that Mr. Shaikh’s “performance issues would have likely continued, despite any hypothetical accommodation, and that his employment would have been terminated regardless.”
[96] Second, Colliers asserts that “the period of wage loss has been chosen arbitrarily” (reproduced as written), noting that Mr. Shaikh did not explain why he is only seeking wage loss for part of the period of his unemployment.
[97] Third, Colliers argues that Mr. Shaikh suffered no damages because he earned income through his company. Alternatively, it argues that Mr. Shaikh has provided no evidence to prove that his corporate earnings did not mitigate the entirety of his alleged wage loss. Colliers says Mr. Shaikh “provided no earnings report, tax documentation, or evidence of any kind with regard to the earnings of the consulting corporation,” and “did not provide his personal tax documents to prove he has suffered loss.” It asserts that the onus was on Mr. Shaikh to do so, and “submits that the reason for not doing so is likely that the foregoing documents would show no loss.” It cites Jenkins v. Pacific Law Group and another, 2017 BCHRT 116 at para. 59, where the Tribunal stated that the complainant claiming wage loss was “required to produce all documents showing her wage loss and how she mitigated her damages by earning income from any source.”
[98] Fourth, Colliers argues that Mr. Shaikh failed to mitigate his losses. It says he cannot claim to have “diligently searched for an alternative position if he was working for his own consulting corporation,” asserting that it is “highly likely that [Mr. Shaikh’s] mitigation efforts were stymied” by his consulting work. In addition, Colliers says Mr. Shaikh’s “job description is one that is specialized and high in demand,” and “it does not ring true that [Mr. Shaikh] would be unable to find full-time, or at least part-time, employment as a project manager from March 2020 to January 2022 if he was diligently looking for work.” It describes Mr. Shaikh’s mitigation evidence as consisting of “a handful of interview invitations and applications across a period of nearly two years,” arguing that “this does not qualify as a diligent, or even adequate, job search.” Colliers adds that it is prejudiced “in demonstrating opportunities that would have been available” to Mr. Shaikh during the claim period. It says job postings for that period are no longer available, due to the length of time that has passed since Mr. Shaikh’s employment was terminated.
[99] On the information and submissions before me, I have determined that it is appropriate to order a total gross wage loss award of $24,615.20 for the Claim Period. My reasons for this determination are as follows.
[100] First, I have already decided that Colliers discriminated against Mr. Shaikh when it terminated his employment on February 25, 2020. Any wage loss that solely resulted from Mr. Shaikh’s dismissal was therefore caused by Colliers’ discrimination. Like in Christensen, in the circumstances of this case, Colliers’ arguments regarding Mr. Shaikh’s employment prospects at the company had it not discriminated go to the appropriate amount of compensation, not to the issue of causality: see Christensen at paras. 200-203.
[101] Second, my task under s. 37(2)(d)(ii) of the Code is not to assess the logic of Mr. Shaikh’s decision to only seek wage loss for the first 96 weeks of his unemployment. Rather, it is to exercise my discretion, on a principled basis, to determine an award amount that fully compensates Mr. Shaikh for wages lost solely as a result of the discrimination during that Claim Period.
[102] Third, Mr. Shaikh testified, and the evidence regarding his mitigation efforts supports, that he was unemployed and looking for work, while also doing some consulting, during the Claim Period. I accept this. In my view, there was an overall consistency to Mr. Shaikh’s evidence regarding his work, personal, and financial circumstances during the Claim Period. His evidence is that he continuously made efforts to find full-time jobs in areas of interest and fields in which he was qualified, getting several interviews but not succeeding in obtaining employment. During that time, he also sought out clients for his company – intermittently obtaining short-term contracts under which he temporarily provided consulting services, earning roughly $15,000 to $20,000 annually. Consistent with his unemployment status and the modest annual earnings of his company, Mr. Shaikh lived with his family, who supported him financially – “that’s how I’m able to live.” Despite the uncertainty in his testimony under cross-examination regarding his knowledge of his company’s corporate income tax returns, I am satisfied that Mr. Shaikh testified honestly to the best of his ability.
[103] I do not accept Colliers’ suggestion that Mr. Shaikh’s wage loss claim must be denied because he did not put forward documents that show he did not fully mitigate his wage loss. Colliers is correct insofar as it asserts that the Tribunal’s Rules of Practice and Procedure [Rules] required production of all documents in Mr. Shaikh’s control that may be relevant to his remedy claim: Rule 20.1(1). However, it has not shown me that Mr. Shaikh did not meet this requirement. Mr. Shaikh filed his Form 9.5 (Complainant Document Disclosure Regarding Remedy) and delivered his listed documents to Colliers with the assistance of counsel. He also filed a Form 9.4 (Remedy Sought), setting out the precise wage loss amount that he now seeks. Colliers does not claim not to have had notice of the particulars of Mr. Shaikh’s alleged wage loss and the existence of his consulting company. If it believed that Mr. Shaikh withheld potentially relevant tax or earnings documents in contravention of Rule 20.1(1), it could have applied for disclosure during the pre-hearing process or at the hearing itself. That is what the respondent did in Jenkins, which is why the Tribunal in that case ordered the disclosure of wage loss and mitigation-related documents.
[104] Although Colliers declared, in its Form 9.6 (Response to Remedy Sought), that Mr. Shaikh’s “complete income tax records and/or pay statements” should be provided and reviewed, it made no application asserting a breach of the Rules or seeking an order for disclosure. As far as the Tribunal was concerned, then, Mr. Shaikh and his counsel reviewed all documents in his control that may be relevant to his remedy claim and disclosed those that they genuinely believed met that threshold. The evidence presented at the hearing has not persuaded me otherwise. Under these circumstances, I am satisfied that Mr. Shaikh’s evidence is sufficient to support an entitlement to a wage loss award, and that it is fair and appropriate to order such an award subject to deductions for contingencies and to account for his company’s earnings.
[105] Last, I will address Colliers’ submission that Mr. Shaikh failed to mitigate his losses. The duty to mitigate requires a complainant-employee to take reasonable steps to avoid or reduce the financial losses resulting from the respondent-employer’s discrimination, including by looking for comparable work: Gibbons v. CML Contracting and another, 2024 BCHRT 220 at para. 106. The underlying basis for the rule of mitigation is that a person should not be compensated for losses that they could have reasonably avoided: see Evans v. Teamsters Local Union No. 31, 2008 SCC 20 at para. 97, Abella J., dissenting (but not on this point); Martin v. Grapevine Optical and another (No. 2), 2022 BCHRT 76 at para. 69. The burden is on the respondent to prove that the complainant failed to mitigate: Evans at para. 99. Specifically, the respondent must prove that (1) the complainant did not make a reasonable effort to find new work, and (2) had the complainant done so, they would have been able to obtain comparable employment: Evans at para. 100.
[106] I am not satisfied that Colliers has met this burden. The evidence before me is not sufficient to establish that Mr. Shaikh’s intermittent consulting work fully or unreasonably obstructed his job search efforts. Nor has Colliers presented compelling evidence to support its assertion that project managers were in particularly high demand during the Claim Period. Further, I do not accept Colliers’ assertion of prejudice regarding its ability to demonstrate that comparable employment was obtainable for Mr. Shaikh. Colliers received notice of the complaint on April 20, 2020 and has been represented by counsel throughout this proceeding. With reasonable diligence, it could have secured its failure-to-mitigate evidence (e.g., job postings, labour force reports) during the Claim Period or immediately after it.
[107] I appreciate that there is a significant, unexplained time gap between Mr. Shaikh’s job interviews in summer 2020 and those in fall 2021. I will return to this shortly. Overall, however, I do not accept Colliers’ negative characterization of Mr. Shaikh’s mitigation evidence, which includes documentary evidence of 12 job interviews and testimony regarding roughly $20,000 in annual mitigation earnings. Given that the start of the Claim Period coincided with the onset of the COVID-19 pandemic, and considering Mr. Shaikh’s evidence of workplace challenges and difficulties communicating with employers and co-workers dating back many years, it is not implausible that he was unable to secure employment during the Claim Period despite reasonable efforts.
[108] In sum, I am satisfied that, for the Claim Period, Mr. Shaikh is entitled to compensation for the amount of wages lost solely as a result of his discriminatory dismissal. The remaining task is to determine the amount in a principled way.
[109] I am not persuaded to award Mr. Shaikh the full sum of his Colliers’ salary for the Claim Period. I must account for his earnings during that time and certain continencies. I begin with the latter.
[110] Mr. Shaikh worked for Colliers for a very short period of time. The evidence before me is that he has not remained in a job for more than a year since working in a project engineer role for another company for two years, from 2012 to 2014. Even if the discrimination had not occurred, I cannot say with certainty that Mr. Shaikh would have remained in his assistant project manager role at Colliers for the duration of the Claim Period. This does not mean that I fully accept Colliers’ arguments regarding Mr. Shaikh’s employment prospects at the company had it not discriminated. On the contrary, I particularly reject the notion that Mr. Shaikh’s disability-related performance issues were likely to continue even if Colliers’ had fulfilled its duty to provide reasonable accommodation.
[111] In addition to the unknown around how long Mr. Shaikh would have stayed at Colliers had it not discriminated, there is also the question of the significant time gap between his job interviews in summer 2020 and those in fall 2021. Mr. Shaikh testified that, following his dismissal in February 2020, he began operating his company again in May. He said he got his first client late in the summer that year, and has worked with clients sporadically since that time. The timing of Mr. Shaikh’s first client engagement lines up with the beginning of the long gap in the evidence of his job interviews. From that point on, aside from his testimony that he tried to find full-time employment throughout the Claim Period (which I accept), I have no evidence of Mr. Shaikh’s search efforts (or the outcomes of such efforts) until fall 2021. Under the circumstances, I find it reasonable to infer at least some connection between the lull in job interviews and the restart-up of Mr. Shaikh’s consulting business. Any time he might have spent working with clients and managing his company could not have simultaneously been spent searching job boards and submitting applications for full-time employment. As a result, in my view, it would not be fair to hold Colliers responsible for all of Mr. Shaikh’s wage losses.
[112] In all of the circumstances, I find that a contingency deduction of half (50 percent) is warranted.
[113] I also find it appropriate to deduct the estimated corporate income earned by Mr. Shaikh’s company during the Claim Period. For the Tribunal’s purposes under s. 37(2)(d)(ii) of the Code, it does not matter if Mr. Shaikh withdrew that income from his company. Nor must I concern myself with the corporate or tax law considerations raised briefly by Mr. Shaikh in his testimony. On the evidence before me, I find that Mr. Shaikh owned and operated a business that earned income during the Claim Period for his potential benefit, which would not have been earned had he remained employed by Colliers. In my view, to not account for that income in calculating Mr. Shaikh’s losses would be inconsistent with the goal of a compensation award under s. 37(2)(d)(ii).
[114] Mr. Shaikh’s only evidence regarding his corporate earnings was the annual revenue estimate of $15,000 to $20,000 he provided in his testimony. In the absence of further particulars from him, and without evidence regarding the amount of his company’s expenses, I find it fair and appropriate to use the high end of Mr. Shaikh’s estimate. I therefore deduct $40,000 in mitigation earnings for the nearly two-year Claim Period.
[115] In sum, for the reasons set out above, I exercise my discretion to order a total award of $24,615.20 to compensate Mr. Shaikh for gross wages lost solely because of the discrimination. The following table summarizes my calculations:
| Claim period: | March 2020 to January 2022 |
| Baseline wage loss amount: | $129,230.40 |
| Less contingency deduction amount (50%): | -$64,615.20 |
| Less mitigation deduction amount: | -$40,000.00 |
| Final wage loss amount after deductions: | $24,615.20 |
B. Compensation for injury to dignity
[116] Section 37(2)(d)(iii) of the Code allows the Tribunal to order a respondent to pay a complainant an appropriate amount to compensate the complainant for injury to their dignity, feelings, and self-respect because of the discrimination. Mr. Shaikh seeks an injury to dignity award in the amount of $20,000. Colliers argues that an injury to dignity award is not warranted, but if the Tribunal orders such an award, it should be in the amount of no more than $5,000.
[117] A violation of a person’s human rights is a violation of their dignity: Nelson v. Goodberry Restaurant Group Ltd. dba Buono Osteria and others, 2021 BCHRT 137 at para. 128. The purpose of an injury to dignity award is to address this harm: Young Worker v. Heirloom and another, 2023 BCHRT 137at para. 114. Such an award is meant to compensate the complainant, not punish the respondent. In exercising its discretion to order an injury to dignity award, the Tribunal generally considers three broad factors: (1) the nature of the discrimination, (2) the social context in which the discrimination occurred and the vulnerability of the complainant, and (3) the specific effect that the discrimination had on the complainant: Nelson at para. 128. The amount of the award depends on the context and circumstances of the case: Gichuru at para. 256. At the same time, for the purposes of consistency and fairness, it is often helpful to consider the range of awards ordered in similar cases: Young Worker at para. 114, citing Mr. D v. Path General Contractors and another, 2023 BCHRT 46 at para. 55.
[118] I begin with the nature of the discrimination, the social context, and Mr. Shaikh’s vulnerability. Mr. Shaikh was dismissed from a full-time job within a couple of months of its start date. It was his first job in over three years. Given the significance of employment to a person’s dignity, cases involving lost employment typically attract higher awards: see, e.g., Senyk v. WFG Agency Network (No. 2), 2008 BCHRT 376 at paras. 463‐470. Employees are inherently vulnerable to some extent and are particularly vulnerable when they lose their employment: Wallace v. United Grain Growers Ltd (1997), 152 DLR (4th) 1 (SCC) at paras 93‐95; Senyk at paras. 463‐464. In the present case, I find that Mr. Shaikh’s long-standing, disability-related struggles in the workplace make him particularly vulnerable as an employee. On the other hand, I agree with Colliers that the events giving rise to the complaint occurred over a short period of time. In addition, I have made no findings of egregious behaviour on Colliers’ part, and Mr. Shaikh has not established that Colliers’ performance feedback, requests for medical information, investigation of the Internal Complaint, or decision to remove him from the BI program were acts of discrimination.
[119] I next turn to the effect of the discrimination on Mr. Shaikh. Section 37(2)(d)(iii) is about compensating a complainant for the dignity injury resulting from the respondent’s discriminatory acts or omissions. In the present case, Mr. Shaikh has established that Colliers’ act of terminating his employment was discriminatory. However, in terms of how what happened affected him, Mr. Shaikh’s evidence centered on events prior to his dismissal, which are not attributable to the contravention that he has proven. He talked about Ms. Hadzic ignoring the information he provided regarding how his disabilities were manifesting in the workplace, feeling intimidated by Ms. Hadzic’s follow-up inquiry regarding the FAF, and feeling that there was anger and frustration towards him – particularly from Mr. Wilson – rooted in his disability. He testified that his meetings with Ms. Hadzic and Mr. Wilson caused him anxiety. I accept this evidence. What is missing, however, is testimony or documentary evidence that clearly conveys and establishes how Mr. Shaikh felt when he was dismissed and in the aftermath, how his termination might have impacted his mental or physical health, how the feelings or impacts caused by his termination manifested in his daily life, and so on.
[120] I now turn to the range of awards ordered in s. 13 cases where the complainant lost their employment. In recent cases, the amounts of such awards have typically ranged from around $10,000, at the low end, to around $30,000, at the higher end: see Thandi v. BC Ministry of Public Safety and Solicitor General, Corrections Branch, North Fraser Pretrial Centre, 2025 BCHRT 294 at para. 182; see also Mohr v. Power Flagging and Traffic Control (Power Earth) and another (No. 3), 2026 BCHRT 40 ($17,000); but see Neske v. Sobeys Inc. (No. 2), 2026 BCHRT 37 ($50,000).
[121] Mr. Shaikh says the following five cases informed his request for an award of $20,000: Benton; Bertrend v. Golder Associates, 2009 BCHRT 274; Mackenzie v. Jace Holdings and another (No. 4), 2012 BCHRT 376; Gordy; and Eva obo others v. Spruce Hill Resort and another, 2018 BCHRT 238 [Eva]. Colliers also put forward Mackenzie and Gordy, and offered the more recent case of Lall v. Apidel Staffing Inc. operating as Apidel Technologies and another, 2023 BCHRT 45. I will briefly address the parties’ cases.
[122] In Lall, the Tribunal found that the complainant’s pregnancy was a factor in the respondent’s termination of her employment and ordered a $7,500 injury to dignity award. In that case, the complainant had specifically asked for an award of $7,500, citing two comparable awards from 2012 and 2013. The Tribunal stated that it had “no hesitation in awarding the full amount sought.” In granting the complainant’s request, the Tribunal noted “parenthetically that the cases referenced by [the complainant] are 10 years old,” and that there “has been an upward trend in awards for injury to dignity that parties may request be taken into account in their submissions on remedy where they rely on older cases.” I find that the relatively low amount of the award ordered in Lall was the direct result of the specific amount sought by the complainant, which makes Lall less helpful to my decision-making.
[123] The award in Bertrend is quite dated but is still worth reviewing. In that decision, the Tribunal found that the respondent discriminated against the complainant by withdrawing a transfer offer and terminating her employment. The complainant had a mental disability. The Tribunal found that the respondent took “a demeaning view” of the complainant based on her expression of emotional vulnerability in the workplace, and viewed her disability as creating “one more problem” to be dealt with. It concluded that these views factored into the respondent’s withdrawal of the transfer offer and ultimately led to the complainant’s dismissal.
[124] In ordering a $12,500 injury to dignity award, the Tribunal in Bertrend considered the complainant’s testimony that, after her termination, she: felt completely alone, unable to trust authority, “afraid to be alone and that it was difficult not to ‘self-inflict’”, afraid and stressed by the prospect of the respondent terminating her boyfriend, and guilty about not working or contributing to her household; had trouble getting out of bed and was eventually referred to therapist at a mental health clinic; felt sick every day and was unable to eat because of stress-related acid reflux; had no appetite for approximately six months and lost 15 pounds; saw her doctor and a counsellor regularly; and was prescribed anti-depressant and anti-anxiety medications. Among other things, the Tribunal also considered the timing and manner of the termination, finding that the respondent had failed to provide its usual termination supports and approached the situation with “a general insensitivity,” which favoured a higher award. I have not made similar findings in this case, and Mr. Shaikh has not provided the type of testimony that was put forward by the complainant in Bertrend regarding the impact of the discrimination in question.
[125] Like in Bertrend (and in contrast to the matter before me), the complainant in Benton put forward substantial information and evidence regarding the effect of her disability-related dismissal. The Tribunal found that the effect of the discrimination on the complainant “was severe,” and stated that this was the “most significant factor” in its award of $30,000 for injury to dignity. Among other things, the complainant had testified that, as a result of her dismissal, the symptoms of her mental illnesses worsened, she experienced depression, she experienced disabling migraines more frequently, and she contemplated suicide. She testified that she only began emerging from her home, and her depression, nearly a year following her termination. At the time of the hearing (roughly two years after her dismissal), the complainant was still not well enough to search for a new job.
[126] Eva involved several complainants, including the named complainant, Ms. Eva. It was primarily a case about racial discrimination in employment, although Ms. Eva was also found to have experienced sexual harassment. The Tribunal found that Ms. Eva had been “forced to resign as a result of a discriminatory work environment” and awarded her $18,000 for injury to dignity. In my view, the circumstances in Eva are too different from those before me for the case to be meaningfully helpful.
[127] That leaves the injury to dignity awards of $5,000 in each of the cases put forward by both parties: Gordy and Mackenzie. There are a number of similarities between the matter before me and the situations in Gordy and Mackenzie. However, like Bertrend, both cases are quite dated – Gordy, in particular, was decided over 20 years ago – and more recent decisions have reflected an upward trend in injury to dignity awards.
[128] Taking all of the above into consideration, I find it appropriate to award $15,000 under s. 37(2)(d)(iii) of the Code. I order Colliers to pay Mr. Shaikh $15,000 as compensation for injury to dignity, feelings, and self-respect.
C. Pre- and post-judgement interest
[129] I find it appropriate to order Colliers to pay interest on the amounts ordered. Specifically, I order Colliers to pay pre-judgement interest on the wage loss award, and post-judgement interest on all amounts awarded.
V CONCLUSION and orders
[130] The complaint is justified. Colliers discriminated against Mr. Shaikh based on his mental disability, in contravention of s. 13 of the Code. As a result, I make the following orders:
a. I order Colliers to cease the contravention of the Code and refrain from committing the same or a similar contravention: Code, s. 37(2)(a).
b. I order Colliers to pay Mr. Shaikh $24,615.20 to compensate him for gross wages lost: Code, s. 37(2)(d)(ii).
c. I order Colliers to pay Mr. Shaikh $15,000 to compensate him for injury to dignity, feelings, and self respect: Code, s. 37(2)(d)(iii).
d. I order Colliers to pay Mr. Shaikh pre-judgement interest on the wage loss award until paid in full, based on the rates set out in the Court Order Interest Act.
e. I order Colliers to pay Mr. Shaikh post-judgement interest on all amounts awarded until paid in full, based on the rates set out in the Court Order Interest Act.
Jonathan Chapnick
Tribunal Member