The B.C. Human Rights Tribunal has ruled that a sexual harassment complaint brought against the University of British Columbia’s Alma Mater Society (AMS) by a former supervisor will proceed to a hearing, after rejecting the AMS’s application to dismiss the case.
K.I., a former supervisor at the AMS-operated Gallery restaurant, alleged that her assistant manager made an inappropriate comment about her attire in March 2020 and that the AMS did not adequately address the issue. She also claimed that her delayed recall to work, following layoffs related to the COVID-19 pandemic, was connected to her complaint about the assistant manager, arguing this constituted discrimination based on her sex.
In a decision released by Tribunal Member Andrew Robb, the tribunal found that the AMS had not sufficiently demonstrated that K.I.’s complaint lacked a reasonable prospect of success or that further proceedings would not serve the purposes of the Human Rights Code.
K.I. alleged that her assistant manager, through intermediaries, told her that the way she dressed would attract unwanted attention and that she “could not complain” if she was harassed as a result. She reported the comment to her manager the same day and posted about it in a private online group for AMS employees, where the assistant manager responded. K.I. remained unsatisfied with both the manager’s response and the assistant manager’s apology.
In May 2020, the AMS began recalling employees who had been laid off due to the pandemic. However, K.I. said she was not recalled until August 2020, later than other employees with less seniority, including those in non-supervisory roles. She believed this delay was a result of her previous complaint about the assistant manager.
The AMS denied the allegations, arguing that the assistant manager’s comment, while inappropriate, was not discriminatory under the Human Rights Code. They contended that the delay in recalling Iacobellis was due to legitimate, non-discriminatory reasons, such as seniority, and that her complaint played no role in the timing of her recall.
In its application to dismiss the complaint, the AMS argued that K.I. had no reasonable prospect of success in proving her claims regarding the recall, citing the seniority-based recall process as a valid business practice. Additionally, the AMS claimed that it had appropriately addressed the assistant manager’s comment, including issuing a warning and requiring sexual harassment training for all staff.
However, Tribunal Member Robb found that, based on the evidence provided, the connection between K.I.’s complaint and the timing of her recall could not be ruled out at this stage. Robb noted that the assistant manager played a role in deciding which employees were recalled and that there were inconsistencies in the AMS’s explanations of the recall process. “In the absence of evidence about when the more senior supervisory employees were invited to return to work, or how long AMS had to wait for them to be available, I am not persuaded that (K.I.) has no reasonable prospect of proving they were not available for several weeks after they were recalled,” Robb wrote in his decision.
The tribunal also rejected the AMS’s argument that proceeding with the complaint would not further the purposes of the Human Rights Code. Robb pointed to the fact that the assistant manager’s apology did not satisfy K.I. and that the AMS’s responses to her complaints, including sexual harassment training, were delayed. “I am not satisfied that AMS acted promptly on (a) recommendation for training, since she made the recommendation in January 2021, and the training was not provided until July 2021, over a year after the assistant manager’s inappropriate comment,” Robb stated.
While the AMS argued that the assistant manager intended to act in K.I.’s best interest, Robb noted that there was no evidence from the assistant manager himself and questioned whether the assistant manager understood the inappropriateness of his comment. Robb further criticized the AMS for failing to ensure that the assistant manager completed the required sexual harassment training before he left his employment in November 2021.
“I am not satisfied that it took appropriate steps to ensure the discrimination would not happen again, because there is no evidence the assistant manager ever took the training required,” Robb wrote.
With the application to dismiss denied, the complaint will now proceed to a hearing. The tribunal also encouraged the parties to consider using mediation services to resolve the matter outside of a full hearing.
For more information, see Iacobellis v. University of British Columbia Alma Mater Society, 2024 BCHRT 234 (CanLII).
