Meeting 29: Religious Discrimination

Summary

Smith v. Mohan (No. 2), 2020 BCHRT 52

Crystal Smith is an Indigenous person and a member of the Tsimshian and Haisla Nations. Ms. Smith has two children and is also a teacher. At the time of the events in the complaint, she was working as a teacher on call. She also has a master's degree in Educational Administration and Leadership, with a specialization in Indigenous leadership. There is no dispute that Ms. Smith is visibly Indigenous. For roughly the first half of 2017, she lived in an apartment she rented from Parminder Mohan.

Mr. Mohan is a realtor. He also owns properties he rents to tenants, including the Duplex. Mr. Mohan identifies as a member of the Brahmin (priest) caste rooted in his Indian background and as a leader in his own religion, Hinduism.

Ms. Smith testified she had first been introduced to smudging around 15 years ago and, after her relationship with her ex‐husband had ended, she smudged more. She testified that when smudging, she uses an abalone shell, which represents the sea; sage, which, when lit, smoulders to allow a purifying smoke; and an eagle feather. To smudge, Ms. Smith testified she lights the sage in the abalone shell and fans it with the eagle feather to create smoke. Smudging is part of Ms. Smith's connection to and expression of her Indigenous identity and, for her, a regular spiritual practice.

Ms. Smith first connected with Mr. Mohan by text in early December 2016, when she responded to an ad he had placed seeking a tenant to ask whether there was a set time for viewing. Mr. Mohan testified the Duplex has a "smart" forced-air heating system. Mr. Mohan also testified that smells in it transfer between the apartment. Ms. Smith had asked about renting and the apartment immediately above it. Still, odours do not transfer between the basement apartment and the two on the other side of the Duplex.

Ms. Smith testified that during their meeting at the Duplex, Mr. Mohan asked her, as almost one of the first things he said, whether she drank alcohol or used drugs. Mr. Mohan denies he made this comment, but I find it is more likely than not that he did. Ms. Smith believed this comment was a reference to her Indigenous background and based on stereotypes about Indigenous people. Ms. Smith did not inquire further about the reason for the question.

Soon after, the parties signed the Tenancy Agreement. In the Tenancy Agreement, the parties agreed to a one‐year tenancy and that, among other things, Ms. Smith would have the right to move into the apartment above hers by no later than April 1, 2017, while Mr. Mohan renovated the basement apartment. Mr. Mohan also agreed to a lower rent – $1,200 – than he had advertised for the apartment and that Ms. Smith's rent would be the same when she moved upstairs. The Tenancy Agreement also included these terms: "No smoking or drugs in residence or building. This includes medical marijuana"; "Smelly foods must be cooked outside"; and "Tenant will not disturb other tenants with noise or nuisance." Ms. Smith acknowledged she did not tell Mr. Mohan when she signed the Tenancy Agreement that she would be smudging in the apartment.

Ms. Smith testified that in January, the upstairs tenants approached her about a smell in their apartment, but they knew about smudging and did not complain about it, and she agreed to give them a heads up when she was smudging so they could close the vents. Ms. Smith also testified she smudged every other day in her apartment during this time.

Mr. Mohan made several remarks via text message that perpetuated harmful stereotypes about Indigenous peoples. About all of the comments Ms. Smith says Mr. Mohan made to her, she testified she found them unprofessional and rude, and she said they were unwelcome. Ms. Smith acknowledged she never asked Mr. Mohan not to comment on her Indigenous background, but she says the reason she did not was she was concerned about jeopardizing her tenancy in an affordable home for her and her children.

On March 12, 2017, Mr. Mohan texted Ms. Smith: "Crystal, there is a huge amount of Pot Smell upstairs. Is this going to be an issue?" Ms. Smith testified that she does not use marijuana and does not allow marijuana use in her home or around her children. She testified that her children were having a hard time that day, and she had decided to smudge. After Ms. Smith received Mr. Mohan's texts, she invited Mr. Mohan into her apartment and showed him the abalone shell and the sage she used for smudging and explained that it was to cleanse spaces, bodies and minds.

On March 14, 2017, two days after the conversation in Ms. Smith's Apartment, Mr. Mohan hand-delivered Mrs. Smith's letter. In it, Mr. Mohan referred to having smelled a smell "similar to marijuana smoke." He wrote, "I am worried the strong smell can permanently embed itself into the premise[s]. I strongly advise you to find a way where the smell is minimized. Your cultural practices do not justify affecting others since this is a duplex building". Ms. Smith testified that at the time, she was getting ready for a trip to northern BC to visit family and that she would reply upon her return on March 30, 2017.

On April 01, 2017, Ms. Smith testified she told Mr. Mohan she was supposed to move upstairs and asked for the key, but he accused her of smoking marijuana. She says she explained she was smudging and told him that the Constitution protected her right to smudge.

Mr. Mohan testified Ms. Smith came up onto the patio and – in essence – demanded the key to the upstairs apartment and that they talked about the key and that he would not talk about it until they resolved the smudging issue. Mr. Mohan testified Ms. Smith called him a racist and told him she would not pay rent. On April 1, 2017, Ms. Smith returned to the Duplex to pay the rent accompanied by her brother, Bear.

On April 07, 2017, Mr. Mohan started explicitly discussing evicting Ms. Smith. Ms. Smith had sought help from an advocate because she feared she would be evicted. The same day, Mr. Mohan wrote to Ms. Smith. In the letter, he demanded she stops burning "any substance until the [RTB] decides on this breach of the Tenancy Agreement" and said he would not give her the keys to the upstairs apartment until the issues were addressed. He denied he was prohibiting Ms. Smith's cultural or spiritual practices.

On April 30, 2017, Mr. Mohan served Ms. Smith with another notice, this one a two month notice to end the tenancy for landlord's use of property, based on the fact that he had all necessary permits and approvals required by law to renovate the apartment. On May 2, 2017, Ms. Smith served Mr. Mohan with an application to cancel the two-month notice to end the tenancy for the landlord's property use. Mr. Mohan was ultimately unsuccessful, having Ms. Smith evicted for cause. The Board ordered Mr. Mohan to give Ms. Smith the key to the upstairs apartment.

In May 2017, Ms. Smith had applied for other housing, with help from the Advocate. On June 1, 2017, Mr. Mohan and Ms. Smith had a text exchange. He, among other things, sent a text to Ms. Smith in which he wrote, "I will be cooking curry every day now in my suite." In mid‐June 2017, Ms. Smith moved out of the apartment. A housing provider had approved her May application.

Questions to be determined and Findings

Were Mr. Mohan's comments towards Ms. Smith discriminatory harassment connected to her protected characteristics? (YES)

Did Mr. Mohan discriminate against Ms. Smith discriminated against her on the basis of her race, ancestry, place of origin, and religion in tenancy contrary to s. 10 of the Human Rights Code? (YES)

Reasoning

1. Regarding comments made by Mr. Mohan, Ms. Smith refers specifically to these incidents and surrounding circumstances:

a. Mr. Mohan asked her when they first met at the Duplex whether she drinks or does drugs;

b. Mr. Mohan:

 - Texted her about her Indigenous background and said he did not want to be "rude during the selection process", but he wanted to know whether she was Métis and mentioned a friend who had gotten him tax‐free goods;

 - Texted Ms. Smith to ask why she had a "typical white name";

c. When he went to went to a fast food restaurant with Ms. Smith and her children, repeatedly talked about previous Indigenous tenants who drank and did drugs;

d. Mr. Mohan texted Ms. Smith to ask whether he could trust Bear working alone with his belongings; and

e. Mr. Mohan told Ms. Smith he liked her comment "okie dokie" because it matched the "whiteness" of her name.

Ms. Smith testified that those comments adversely impacted her in several ways. She found Mr. Mohan's comments and jokes exhausting and frustrating, and they made her feel she could not relax in her home.

The Tribunal was persuaded Ms. Smith was adversely impacted in the tenancy for reasons connected to her protected characteristics by the things Mr. Mohan said to her throughout the early part of the tenancy. "It was not one comment: it was a pattern of comments and invasive questions over a number of months based at least in part on Ms. Smith's protected characteristics and in some cases on stereotypes about Indigenous peoples." (p. 180)

The Tribunal found enough evidence to infer that a stereotype about Indigenous people was a factor in Mr. Mohan's comments because it is more probable than not that it was.

Even though Mr. Mohan's comments were not virulent or egregious in the sense that they were racist name‐calling, some of them were based at least in part on stereotypes. The comments were also part of a pattern of similar comments he made to Ms. Smith over several months. In this situation, the context in which these comments were made is relevant: they were made in a tenancy relationship, where Ms. Smith depended on Mr. Mohan for her housing. Additionally, Mr. Mohan did not apologize, and the Tribunal found that a reasonable person in his position ought to have known the comments were unwelcome. The Tribunal dictated:

Reviewing all of Mr. Mohan's comments and questions, I am satisfied a reasonable Indigenous person would have viewed Mr. Mohan's comments – in some cases considering the comments individually, and more importantly looking at them as a whole – as harassment based on their protected characteristics. (p. 225)

2. Mr. Mohan acknowledged Ms. Smith experienced an adverse impact when he repeatedly tried to evict her. However, Mr. Mohan argued there is no connection between his efforts to evict her and her protected characteristics since he evicted her because of the effect of smudging on the Duplex.

During the hearing of this complaint, Mr. Mohan testified that he researched smudging, but the Tribunal found no indication he had researched the practice.

In the Tribunal view, a policy that prohibits an Indigenous tenant from smudging entirely due to concerns about "nuisance" or "property damage" would adversely impact Ms. Smith and persons with her protected characteristics in and of itself. Additionally, Mr. Mohan did not offer other options in recognition of the importance of smudging to Ms. Smith: he prohibited it outright unless she could satisfy him that it would not damage his property.

The Tribunal was persuaded that Ms. Smith's protected characteristics were a factor in an adverse impact on her. Mr. Mohan, at the least, repeatedly attempted to evict her when she refused to stop smudging.

The Tribunal examined whether it would be an undue hardship for Mr. Mohan to accommodate Ms. Smith's protected characteristics. Mr. Mohan argued that Ms. Smith failed to cooperate in the accommodation process, and it would have been an undue hardship for him to accommodate Ms. Smith's smudging. However, Ms. Smith gave Mr. Mohan information about smudging: she texted him the article about the benefits of smudging and sent a text message saying she had been told smudging does not have the adverse health effects cigarette smoke. The Tribunal found no evidence of Mr. Mohan reaching the point of undue hardship.

First, I cannot find in the circumstances that he would necessarily need to replace the entire heating system for the parties to find a way for Ms. Smith to smudge. Ms. Smith and the upstairs tenants were apparently able to come to a reasonable resolution: she would tell them when she planned to smudge so they could close the vents.

Further, as Ms. Smith pointed out, given Mr. Mohan's theory that ash and smell moved upwards and Ms. Smith's testimony she would control the heat in the upstairs suite so she could open the windows to smudge, another potential solution would have been for Mr. Mohan to do what the Tenancy Agreement promised and what the RTB ordered him to do: allow Ms. Smith to move into the upstairs apartment. (p. 271, 272)

Mr. Mohan's conduct was discrimination contrary to the Code, and the Tribunal ordered him to cease the contravention and refrain from committing the same or a similar violations.

Remedy

The Tribunal ordered Mr. Mohan to pay Ms. Smith:

i. $1,500 for compensation for wages lost as a result of the contravention;

ii. $1,800 as compensation for expenses incurred as a result of the contravention;

iii. $20,000 as compensation for injury to her dignity, feelings, and self‐respect.

Summary

Amir v. Webber Academy Foundation

Webber Academy was founded in 1997 and has declared its mandate to be a high quality, non-denominational, coeducational, university preparatory, accredited private school. In November 2011, Dr. Shabnam Nazar, on behalf of her 14-year old son, Naman Siddique, and Ms. Farhat Amir, on behalf of her 14-year old son, Sarmad Amir, sought admission to the accredited private school, Webber Academy.

The Parents assert that they specifically discussed the Students' requirement to pray while at school as part of their faith prior to enrollment and were told by the director of admissions it would not be a problem. Ms. Dianne Lever, director of admissions, Webber Academy, testified she had stated to the Parents and Students that the school was nondenominational, therefore no prayer space would be allowed. She also testified that she thought the Parents were satisfied that they couldn't pray otherwise they wouldn't have enrolled in Webber Academy.

The Students began attending classes at Webber Academy on December 1, 2011. For the first two and a half weeks of classes, the Students gave evidence that they prayed on the Webber Academy campus; they were comfortable openly asking staff and teachers about various places to pray. Mr. Siddique testified he would go to the office, and upon asking, he would be shown to an empty room where he would pray and then return to class. He also said that sometimes a teacher would allow him to go into an empty classroom to pray.

On December 17, 2011 Dr. Webber telephoned the parents to say that the school was "non-denominational" and the Students could not pray on school premises; this telephone call was the first clear communication from Webber Academy that the Students' prayers would not be allowed on Webber Academy campus. Subsequent to Dr. Webber's telephone call, Dr. Nazar made an appointment to meet with Dr. Webber and also sent a letter with the hopes of reaching an agreement.

Dr. Nazar testified she asked Dr. Webber if the Students could pray in the garage outside, in a corridor, in the basement, behind some trees or even in a closet. Dr. Webber refused and said that they must go off the school premises. Dr. Nazar and Ms. Amir both testified that Dr. Webber suggested the Students could pray quietly in their heads, and this would be acceptable. Dr. Nazar testified that Dr. Webber stated he did not want other children to see the bowing or kneeling. After Mr. Siddique was told that he could not pray on school property, he said that he began to pray outside of the school on the school grounds. It was winter, and so they would often come back to the school wet and cold. If there was a blizzard outside or if it was too cold to pray, Mr. Siddique testified that he and Mr. Amir would find a nook or cranny and pray. He felt that this was humiliating. Dr. Nazar said that her son felt he had to choose religion over the school.

By letter dated January 30, 2012, Dr. Nazar wrote to Dr. Webber summarizing what had happened and making a formal request for accommodation and attaching the prayer timetable. By letter dated February 6, 2012, Dr. Webber outlined what had occurred that year from Webber Academy's perspective, indicating that the students would not be accepted for the school year 2012-2013:

A legal opinion obtained by Webber Academy indicated that Webber Academy is under no obligation to accommodate your request because:

- It does not make physical accommodations for any other student of the Academy to practice their religion and

- Webber Academy is a non-denominational school and this is an integral part of its character and it is legally entitled to remain so. (p. 37)

On February 10, 2012 Mr. Siddique was conducting a prayer in the library at Webber Academy. Mr. Siddique gave evidence that he was about to commence prostration when Ms. Webber approached him, interrupted him by coming very close to him, and asked repeatedly, "What are you doing?" Mr. Siddique felt compelled to break his prayer.

On February 13, 2012, two human rights complaints were filed alleging discrimination contrary to sections 4(a) and 4(b) of the Act, on the ground of religious beliefs in the area of goods, services, accommodation or facilities that are customarily available to the public.

Questions to be determined and Findings

Has prima facie discrimination on the basis of religious beliefs been established? (YES)

If prima facie discrimination is established, has the respondent shown that the discriminatory standard has a bona fide and reasonable justification? (NO)

Reasoning

The complainants have satisfied the prima facie case of discrimination since the request of praying during school hours is based on a sincerely held religious and practices. The Students were not allowed to pray on campus, and they were refused re-enrollment to Webber Academy, which constitutes a negative impact. Additionally, the Students were placed in a conflict between their religious obligations and following the respondent's rules. Mr. Siddique felt humiliated and fearful. Mr. Amir was also upset by this situation, evidence of the clear adverse impact on these Students with respect to the services and facilities denied by the respondent.

As the complainants have established prima facie discrimination, the onus shifts to the respondent to prove, on a balance of probabilities, that the discrimination is justified or that a reasonable accommodation has been offered.

Webber Academy's purpose for the standard, as outlined above, relates generally to maintaining a non-denominational identity that is free from religious influences. Webber Academy's public function is to provide educational services and facilities.

It is open to a school to create an "identity" that includes setting standards regarding the conduct of students (and staff) in the particular learning environment and on its campus. Under the broad assessment required here, we find there is a rational connection between the purpose Webber Academy was seeking and the function it performs. We accept that the respondent adopted its position in good faith, believing it was necessary to the accomplishment of its purpose of maintaining a non-denominational identity, as it defined that term. We also note that Dr. Webber was considered by the complainants and all witnesses to have conducted all discussions in a respectful and courteous manner. (p. 90, 91)

Dr. Webber testified he was concerned that there was a "plan" to force Webber Academy to provide prayer space, stating that accommodating the religious obligations as requested would have the effect of forcing the Students' educational view on Webber Academy and its students.

This assertion is not accepted; the Students requests were not aimed at establishing that their religion, or any religion, "belonged" in a school setting. Rather, in order to fulfill their religion, they were required to pray at designated times. The Students' physical location was incidental to their religious beliefs. The Students' requests of Webber Academy were purely a function of being at school during their mandatory prayer times. (p. 99)

Moreover, the respondent did not provide any evidence to establish that allowing these Students to pray on campus would have constituted a religious influence over the institution, given that there was no suggestion that the Students or Parents requested the development of any educational programs for use in the curriculum.

The respondent's standard of 'no overt prayer or religious practice on campus' essentially asks these Students to leave their religion "at the door" while other students who do not have religious obligations during school hours are not so required. (p. 105)

There was undisputed evidence that Webber Academy staff participated in facilitating the Students praying on Webber Academy campus for their first two and a half weeks of attendance. The evidence also showed the respondent accommodated religious head coverings and facial hair. Based on this, the Tribunal drew a reasonable inference that the Students' request was easily accommodated at Webber Academy.

The school gave the impression, before enrollment, that something could be worked out about students' prayer requirements, but the Students were unable to pursue their religious beliefs on campus freely and had to pray outside in winter, which was humiliating and potentially dangerous. Therefore, the Tribunal did not agree that Webber Academy's proposals meet the threshold of reasonableness.

Result

Mr. Amir $12,000 and Mr. Siddique $14,000 for damages for distress, injury and loss of dignity. Mr. Siddique's award is slightly higher to compensate for the persistent fear which he developed.

Summary

Derksen v. Myert Corps Inc., 2004 BCHRT 60, 2004

Mr. Derksen started working with Myert on July 2, 2002 as a Project Co-ordinator in the Youth Job Directions Program. Mrs. Imbenzi performs all the financially related work for the company. Her title is Financial Controller. Mr. Imbenzi is the visionary and driving force behind the company and is associated with the Mennonite church and has been a licensed minister since 1994.

Mr. Derksen was in charge of planning, developing, administering and coordinating all functions and services of the Youth Job Directions Program. He stated that overall the Program was "ramping up", and that he was putting together teaching materials, waiting for computers and office furniture to be delivered, and that Imbenzi had advised him not to start the three-week job search session until he gave the go ahead. In contrast, all employees that reported to Mr. Derksen (Ms. Toews, Ms. Sangha and Ms. Jenkinson) all testified about their concern that no progress was being made in recruiting clients for the Program, and that Mr. Derksen was doing nothing in that area.

Mr. Derksen is a member of the Christian Churches of God. As he explained his faith, adherents to it believe in one true God, the Father, and one mediator, Jesus Christ, but they do not celebrate Christmas, Easter, birthdays or any of the other traditional Christian celebrations. Adherents recognize a number of religious days including five Holy Days per year; weekly Sabbath commencing Friday from "dark to dark", to the end of evening nautical twilight Saturday; as well as the lunar New Moons which occur every 29 1 /2 days. On any of these religious days no work or trade is to be done for which money is paid.

The New Moons and Holy days may fall on regular workdays and when they do, adherents must not work. Two New Moons fell on workdays during the period of time Mr. Derksen was employed at Myert.

At the time Mr. Derksen was interviewed for employment, he did not mention his religion and the requirement for the New Moon Days off. He first asked Mr. Timberlake on July 5, 2002 for time off for the New Moon Day on July 10, 2002. Mr. Derksen testified that Mr. Timberlake asked him to provide the request in writing and outline the reasons for his request.

Mr. Derksen outlined his religious beliefs in a memo dated Monday, July 8, 2002, addressed to Imbenzi. Following a meeting first thing that Monday morning, Mr. Derksen asked Imbenzi if he had seen the memo yet. He had not. Imbenzi thought Mr. Derksen was requesting a day off because it was a "statutory holiday". He therefore did some checking and found out that it was not, so spoke to Mr. Derksen again for clarification. Imbenzi then had Mr. Derksen fill in a leave request form, granting the unpaid day off. During those conversations, Mr. Derksen did describe his religion, but Imbenzi still had not seen the July 8, 2002 memo. He first saw it that evening.

The memo set out that Mr. Derksen was required to have the New Moon Days off from work and that he could provide a calendar as to when those dates were. The following day, July 9, Imbenzi left a letter for Mr. Derksen denying the request.

Mr. Derksen and Imbenzi met on August 7, 2002 for Mr. Derksen's second performance review. Imbenzi testified that he made it clear to Mr. Derksen in the August 7 meeting that the targets had to be met and that it was his responsibility. Mr. Derksen, however, said that he did not understand from that meeting that his employment was in jeopardy. Mr. Derksen also asked Imbenzi for the day off on Friday, August 9 since it was initially approved but later denied.

Mrs. Imbenzi spoke to Mr. Derksen who told her that he would not be in to work on Friday. Mrs. Imbenzi advised him that would be an unauthorized day off and that she hoped he would reconsider. Mr. Derksen told Mrs. Imbenzi that Myert had a duty to accommodate him, to which Mrs. Imbenzi testified that she replied that Mr. Derksen had a duty to let her know why he needed the day off.

The following Monday, Mrs. Imbenzi arrived at the Abbotsford office at about 9:30 am. and Mr. Derksen was in his office working on his computer, he was then terminated because he took an unauthorized day off.
 

Questions to be determined and Findings

Did Myert discriminate against Mr. Derksen with respect to a term or condition of his employment because of his religious beliefs? (YES)

Was there a bona fide occupational requirement to refuse the Sabbath day off? (NO)
 

Reasoning

As stated on the first letter that Mr. Derksen received, the denial of the right to his religious days off establishes a prima facie case of discrimination. There is also no doubt that one of the reasons Mr. Derksen was dismissed was his unauthorized absence on August 9, 2002.

Regarding whether Mr. Derksen religious beliefs were a factor in the termination, the Tribunal expressed:

Myert did not make it clear to Mr. Derksen that his employment was in jeopardy. While Myert may have had reason to dismiss Mr. Derksen because of his performance, the decision was made only after he took the unauthorized day off. It, as Mrs. Imbenzi said, was the event that made her say to Imbenzi that they should cut their losses, meaning let Mr. Derksen go. Observation of the New Moon Sabbath was therefore a contributing event. (p. 67)

Even though Myert did have evidence of its religious tolerance based on other employees’ experiences, ”what is required of an employer is that they assess the individual request against the standard and determine that a request could not be accommodated without undue hardship” (p. 70).

Myert did not make an effort to accommodate the religious observance, therefore there is not sufficient evidence to prove that the refusal to let Mr. Derksen observe his holy days was a bona fide occupational requirement.
 

Remedy

Payment of wages from August 12 to October 1, 2002, for a total of $5,957.00; a tax gross-up to offset any income tax liability as a result of awarding the income loss in a year in which he is earning a full time income; interest payable on the amount at 2.25%; wage loss to attend the hearing in the amount of $770.00; and damages for injury to dignity in the amount of $2,000.00.

Summary

Mangel and Yasué obo Child A v. Bowen Island Montessori School and others​ 2018 BCHRT 281, 2018 ​

Mr. Mangel and Dr. Yasué have a daughter, Child A, who attended Bowen Island Montessori School [BIMS] for one year. Mr. Mangel and Dr. Yasué raised concerns with BIMS about the curriculum in relation to the celebration of religious holidays.

BIMS is a non-profit society that offers pre-school and kindergarten programs for children aged 2.5 to 6 years of age. Dr. Yasué is of Japanese ancestry and Mr. Mangel is of Jewish ancestry and they both are atheists. Their daughter, Child A, is of mixed Japanese/Jewish ancestry, and is growing up in their atheist home.

Mr. Mangel and Dr. Yasué had a daughter, A, who attended respondent school for one year. They raised concerns with the school about the celebration of religious holidays, as Mr. Mangel and Dr. Yasué were atheist. They disagreed with celebrating any cultural or religious events at school.

Mr. Mangel volunteered to join the school's board of directors but the respondents found him difficult to work with, claiming he portrayed himself as more knowledgeable than others and communicated in an aggressive manner.

During a November 7, 2014 email discussion among BIMS Board Members regarding spending money on clay elf ornaments, Mr. Mangel wrote, "it is important to remember that not all BIMS families celebrate Christmas." Other members suggested including a Hanukkah activity. Mr. Mangel responded that he did not consider any religious activity appropriate for small children due to their inability to understand the religious and political symbolism properly.

Ms. Davenport's, a fellow board member and teacher, responded by explaining that BIMS' curriculum includes information about the celebration of Christmas and Hanukkah as a way of exposing children to different cultural aspects of celebrations from around the world, and that she views these as an important means of recognizing and honouring diversity. Mr. Mangel emailed Ms. Davenport directly and asked whether the inclusion of Santa and Christ in Child A's education was open for discussion as he and Dr. Yasué were very concerned about this. In turn, Mrs. Davenport forwarded Mr. Mangel's message to the other Board Members without copying him.

After receiving Ms. Davenport's answer, Mr. Mangel was particularly concerned that she had misunderstood what he was saying because he was not opposed to celebrating "cultural" events in the classroom. Rather, hewas opposed to celebrating "religious" events. The email discussion among BIMS' Board Members regarding the elf ornaments continued with Ms. Coker, Ms. Brockmeyer and another Board Member expressing their support for the initiative. Mr. Mangel also engaged in the discussion, expressing his disagreement. Mr. Mangel became aware that a fellow Board Member had removed him from the email discussion a few days later. He emailed his fellow Board Members and wrote that he considered this conduct highly unprofessional.

Mr. Henriques is Ms. Brockmeyer's spouse. All three of the couple's children attended BIMS. Two of their children were enrolled at BIMS during the 2014-2015 school year. Mr. Mangel and Mr. Henriques were friendly and had a conversation on the ferry and as they stood on the pier on Bowen Island in November 2014. The two men discussed the curriculum at BIMS and Mr. Mangel expressed his view that religious symbols and/or celebrations like Christmas and Hanukkah should be removed. Mr. Henriques disagreed and said that these things should be included and that he wanted his children to learn about different cultures around the world. Mr. Henriques said something to the effect that the issue comes down to one's personal views and asked, "what are you going to do about it?" Mr. Mangel responded that he would "sue the school."

On November 26, 2014. Ms. Coker, Ms. Solin, Ms. Davenport and Ms. Taylor attended on behalf of BIMS and met with Dr. Yasué and Mr. Mangel in order to try and reach a resolution to Dr. Yasué and Mr. Mangel's concerns. Dr. Yasué recalled that she did the bulk of the talking as between her and Mr. Mangel. Her evidence is that she talked about the privilege of being Euro-Christian and that it is very different to live in a system where one's own beliefs are reflected all around them as opposed to when one is in a marginalized position. Ms. Coker's evidence is that Ms. Davenport talked about the Montessori philosophy and why cultural celebrations were important. Dr. Yasué then talked about the classroom being neutral and not wanting her child to be exposed to these celebrations at school. Ms. Coker testified that Mr. Mangel was fairly agitated throughout the meeting.

Dr. Yasue then sent a lengthy email offering alternatives to move the institution towards a more inclusive environment. Ms. Coker testified that as a result of their meeting, she felt it was understood that although BIMS could not remove holiday celebrations completely, BIMS was happy to make accommodations such as removing the Dreidel or the "This is the Stable" book.

On May 4, 2015 Mr. Mangel and Dr. Yasué attended a parent-teacher conference with Ms. Davenport and Ms. Taylor. Mr. Mangel's evidence is that most of the meeting was spent talking about Child A's progress. He stated that he brought up the issue of celebrations in the classroom towards the end of the meeting. Ms. Davenport's evidence is that Mr. Mangel said, "we let you have Easter and Valentine's Day" and talked about his belief that having religion and politics in a pre-school classroom is inappropriate and should be removed. Dr. Yasué testified that she left the parent-teacher meeting feeling confused about why the parties' previous discussion regarding Christmas being Euro-Christian did not translate to Valentine's Day and Easter. More email communication followed this meeting.

BIMS sent Dr. Yasué and Mr. Mangel a letter, dated June 8, 2015, asking them to sign a document stating they understood and accepted all aspects of the school's cultural program before A's registration for the following year would be confirmed. Mr. Mangel and Dr. Yasué both testified that they did not understand why BIMS sent them this letter. Dr. Yasué testified that she did not expect BIMS to create a "totally neutral" classroom and that she had already communicated that they accepted BIMS was going to continue doing what it was doing.

On June 24, 2015, Ms. Coker sent Dr. Yasué and Mr. Mangel the following email:

We have not received a returned signed copy of the letter dated June [8], 2015. To secure your daughter's spaces on the four mornings you have requested and complete registration, please sign the letter and return it by June 29, 2015. If we do not receive the signed document, we understand that you have chosen not to renew your daughter's registration and return for the 2015-2016 school year. (p. 121)

Dr. Yasué and Mr. Mangel alleged that the letter and subsequent correspondence discriminated against them and A on the bases of religion, race, ancestry and family status in the provision of services and filed a complaint against the school and the three individual respondents.
 

Questions to be determined and Findings

Did BIMS breach s. 8 of the Code when it refused to confirm Child A's registration for the upcoming school year?  (YES)

Is BIMS entitled to rely on the s. 41 defence regarding its refusal to confirm Child A's registration for the upcoming school year? (NO)

Was the BIMS letter of June 8, including the refusal to confirm Child A's registration for the upcoming school year, retaliation contrary to s. 43 of the Code? (NO)

Did the individual Respondents breach the Code? (NO)
 

Reasoning

The Complainants reasonably interpreted the letter as meaning that, if A was to be registered, they would be significantly if not entirely limited in their ability to raise issues about the program's cultural aspects. This limitation was not imposed on other parents. BIMS treated them differently from every other parent at the school, and sought to suppress their expression of concerns about the nature of the curriculum that were grounded in their race, ancestry and religious beliefs. A's registration was held up and she was ultimately registered in another pre-school program, which constituted an adverse impact on A.

The protected characteristics of religion, race and ancestry were at the heart of the debate. BIMS argues that there was no adverse impact in this case because Dr. Yasué and Mr. Mangel chose to register Child A elsewhere.

Turning then to the question of nexus, I observe that the debate between Dr. Yasué and Mr. Mangel and BIMS resulted in communications that were less than ideal and lacked a certain degree of clarity. Neither side approached the matter in an entirely straightforward manner that would have aided in the resolution of the issues. However, what I find to be clear is that Dr. Yasué and Mr. Mangel's protected characteristics played a constant role in the discussions, either expressly or implicitly. The letter was the culmination of those discussions. (p. 237)

Further, Dr. Yasué and Mr. Mangel testified that they would have signed the letter if all parents had been asked to do the same. Finally, Dr. Yasué testified that it would have been acceptable for BIMS to do "nothing" in response to their views.

Moreover, Mr. Mangel testified that this dispute with BIMS had a negative impact on his relationships in the community. His evidence is that he has suffered negative treatment from community members as a function of his involvement in the Complaints. He testified that he receives dirty looks daily and that conversations stop as he approaches. He testified that he has been called names in his child's presence and that he was spat at twice by a woman he says is connected to Ms. Coker. He testified that these events have resulted in his hyper-vigilance when walking on Bowen.

The respondents failed to provide evidence justifying the refusal to register A.

BIMS argued that one reason for the letter was Mr. Mangel's inappropriate conduct in discussions with BIMS. "Based on all of the evidence, including some admissions by Mr. Mangel, and some observations provided by Dr. Yasué that were consistent with BIMS' evidence, I find that Mr. Mangel's conduct did on occasion stray beyond the acceptable." (p. 240)

However, the Tribunal did not find that the communication with Dr. Yasué and Mr. Mangel regarding the aspects of the cultural program rooted in religion, particularly Euro-Christian beliefs, constituted undue hardship.

The letter from school did not amount to retaliation against Dr. Yasué and Mr. Mangel as there was no mention of a complaint under the Human Rights Code until after the letter was issued.

The complaint was justified as against the school but not against the individual respondents. The Complaint was dismissed against individual respondents as school admitted it was in the best position to fulfill any remedies ordered by the Human Rights Tribunal, and the acts of the individual respondents occurred in the normal course of their duties.
 

Result

The Discrimination Complaint against BIMS under s. 8 of the Code is allowed. The Discrimination Complaint against the individual respondents is dismissed. The Retaliation Complaint under s. 43 of the Code is dismissed. BIMS' claim against the Complainants for costs on the basis of the Complainants' alleged improper conduct is dismissed. The Complainants' remedies are an award of $5,000 each for Dr. Yasué and Mr. Mangel for the impact on them from the refusal to confirm the registration of Child A for the 2015-2016 school year unless they signed the June 8, 2015 letter.

Summary

Shah v. Hyatt Regency Vancouver and another, 2019 BCHRT 46, 2019 ​

Shreyansh Shah filed a complaint against the Hyatt Regency Vancouver [Hyatt] and Joe Weiss alleging discrimination regarding employment on the basis of physical disability and religion. Mr. Shah began employment with Hyatt in February 2015 in a minor repair role in the engineering department of the Hotel Mr. Shah's duties included replacing light bulbs and air conditioning filters; maintaining plumbing fixtures and maintaining supplies in engineering storage rooms; attending to guestroom requests such as television, safe, door and toilet repairs; taking water readings in the swimming pool and hot tub; doing preventative maintenance duties; and passing on relevant information to employees working the night shift. (maintenance).

Mr. Weiss was the Director of Engineering and Mr. Shah's supervisor. As Director of Engineering, his duties included oversight and management of staff; oversight of day-to-day hotel operations, renovations and project management; and certain financial duties such as budgeting and contract management.

Mr. Weiss alleges that Mr. Shah was a difficult employee to manage and was often confrontational. He says that Mr. Shah developed a substantial discipline record and demonstrated numerous performance-based deficiencies. Mr. Shah does not deny that he had a lengthy record of performance issues, but he alleges that Mr. Weiss unfairly targeted him in recording performance issues after he complained about Mr. Weiss' religious harassment in 2016, ultimately leading to the termination of his employment.

On April 8, 2015, Mr. Weiss completed a 30-day performance assessment of Mr. Shah. Mr. Shah's performance was assessed as poor, and the assessment indicated a number of areas where he needed improvement. Mr. Weiss included a note that Mr. Shah needed to make a drastic improvement in his overall job performance by the time of his 60-day assessment. On April 30, 2015, Mr. Weiss completed Mr. Shah's 60-day assessment. It showed there was some improvement, but his overall score remained "developing".

Mr. Weiss says that there were a number of issues with Mr. Shah "confronting" other employees over conduct he believed was inappropriate, or injecting himself into situations that he should not have involved himself in. Mr. Weiss says that he spoke with Mr. Shah about these interactions on a number of occasions, specifically instructing him not to confront coworkers for not following policy, but rather to get the manager on duty or engineering manager involved.

Mr. Weiss says that on January 25, 2016, Mr. Shah entered his office and said he had sent an email to convince him that evolution exists. Mr. Weiss replied that he had not seen his email, he then advised Mr. Shah that it was not the place to talk about theology but he continued questioning Mr. Weiss's beliefs. Mr. Weiss says Mr. Shah provided some reasons for his beliefs and made it clear this is what he believed but was not asking anyone else to believe it. Mr. Shah then repeated it as not appropriate to discuss theology while on the clock. The meeting ended.

On January 26, 2016, Mr. Weiss and the Assistant Engineering Manager spoke with Mr. Shah about his performance, advising him that it was improving. Mr. Shah expressed dissatisfaction with scheduling and thought he should have weekends off given his seniority. The managers explained that the schedule for the past nine years had given everyone at least one weekend off, but Mr. Shah was dissatisfied with this answer.

On March 2016, Mr. Shah sent the General Manager of the Hotel an email setting out various complaints. This was shortly after Mr. Shah received a written warning for insubordination for refusing to follow directions about the process for vacation requests. This was one of the matters mentioned in Mr. Shah's email.

In subsequent correspondence, Mr. Shah alleged that Mr. Weiss tried to convert him to Christianity, said he was not living his life as God intended, and encouraged him to take a course at Mr. Weiss' Church. The General Manager forwarded that email to both the Director of Human Resources and Mr. Weiss. Mr. Weiss denied these allegations as unfounded and false.

In June 2016, Hyatt says Mr. Shah's bullying and harassment complaint was resolved with the Union. A June 13, 2016 letter from Hyatt to Mr. Shah confirms there was an investigation after Mr. Shah's report of inappropriate religious comments from Mr. Weiss.

Another letter of the same date from Mr. Weiss to Mr. Shah apologizes to Mr. Shah for the comments Mr. Weiss made in the workplace concerning religion. The Director of Human Resources says that in the fall of 2016, the number of performance and behavioural issues involving Mr. Shah increased, with his actions causing considerable tension among coworkers who approached management and human resources to communicate their frustration with him on multiple occasions.

On January 25, 2017, the Director of Human Resources met with the General Manager of the Hotel to discuss Mr. Shah's continuing performance issues. Both parties have attested that there never was any discussion or mention of Mr. Shah's religion, nor of any medical issues. There is no evidence that Mr. Shah raised any further complaints about Mr. Weiss raising religion with him. They decided to terminate Mr. Shah's employment given his ongoing performance problems and failure to meet the requirements.

The Director of Human Resources and General Manager spoke on March 14, 2017 about the various unsuccessful attempts made to meet with Mr. Shah. The General Manager directed the Director of Human Resources to advise Mr. Shah by telephone or letter of the termination decision. On March 15, 2017, Hyatt couriered its letter to Mr. Shah advising him that his employment was being terminated. Mr. Shah filed his complaint the next day.
 

Questions to be determined and Findings

Does this discrimination complain on the basis of religion and disability have reasonable prospect to succeed? (NO)
 

Reasoning

In the Tribunal’s words:

To succeed in his complaint at a hearing, Mr. Shah would have to establish that he has the protected characteristic of religion or physical disability, that he experienced an adverse impact regarding employment, and that his religion or disability was a factor in the adverse impact. (p. 58)

In his complaint, Mr. Shah alleges that Mr. Weiss picked on him because he did not convert to his religion. He alleges that this led to the termination of his employment. He also alleges that his physical disability was a factor in the termination of his employment.

With regard to physical disability, Mr. Shah references only the injury he sustained at the end of January. Having reviewed all of the materials before me, there is nothing upon which the Tribunal could find that Mr. Shah's injury factored into Hyatt's decision to terminate his employment. Rather, the overwhelming preponderance of evidence is that the General Manager and Director of Human Resources made their decision prior to being informed of Mr. Shah's injury and need for time off, and that the decision was based on performance related concerns. (p. 62)

Additionally, the Director of Human Resources says that she was first made aware of Mr. Shah's performance problems in September 2015. She says Mr. Weiss would speak with her about incidents involving Mr. Shah and seek her input on how best to deal with them. This was particularly the case where Mr. Weiss was considering disciplining Mr. Shah. The Director of Human Resources says that at no time during these discussions was the matter of Mr. Shah's religion ever raised or talked about.

With regard to religion, the Tribunal could find that the repeated performance citations from Mr. Weiss and subsequent termination of Mr. Shah's employment constituted adverse impacts. However, I am persuaded there is no reasonable prospect that Mr. Shah could succeed in establishing that his religion was a factor. (p. 64)

There are also evidences that Mr. Weiss took a number of supportive measures to manage Mr. Shah's performance, and that the issues remained throughout Mr. Shah's employment.
 

Result

Application was dismissed. In the Tribunal’s view:

While Mr. Shah asserts that Mr. Weiss picked on him because he would not convert to Christianity, in the context of the materials before me as a whole, there is nothing on which the Tribunal could reasonably base an inference this was the case. On the other hand, the Respondents have persuaded me that it is reasonably certain that they would establish that the performance management and subsequent termination of Mr. Shah's employment was based on a non-discriminatory reason: persistent, legitimate performance issues. (p. 67)