A complaint alleging sex discrimination within a dental clinic’s workplace has been dismissed by the British Columbia Human Rights Tribunal.
The Tribunal found that none of the complainant’s allegations that fell within the legal time limit could, if proven, contravene the Human Rights Code. Without a timely allegation “anchoring” the complaint, the remaining late-filed claims could not proceed.
Alleged incidents involving dentist
The complaint was filed by a dental hygienist, identified only as D.H., against a dental corporation operating a clinic and its owner, a dentist who practised at the same location. D.H. alleged the respondents subjected her to “sex discrimination,” including conduct that she viewed as sexist, gender-based and, at times, tantamount to sexual harassment.
The alleged incidents occurred between February 2019 and February 2020, during the course of her employment and while D.H. rented an apartment from the dentist. The complaint focused solely on employment-related issues, not on tenancy.
The employer denied any discrimination and applied to have the entire complaint dismissed without a hearing. They cited s. 27(1)(b) and s. 27(1)(g) of the Human Rights Code, arguing that even if proven, D.H.’s timely allegations did not amount to a contravention, and the others were out of time.
One-year limit
Under the Code, complainants generally must file within one year of the alleged contravention. Late-filed claims may be considered if they form part of a continuing contravention anchored by a timely allegation. If no timely incident meets the “arguable contravention test,” late claims cannot survive. In this case, D.H. attempted to position her complaint as a continuous pattern dating back to February 2019, but the tribunal found otherwise.
Tribunal Member Chapnick wrote that the threshold for meeting the “arguable contravention test” is low, but noted that not every disrespectful or inappropriate remark linked to gender is discriminatory. In looking at the timely incidents — those allegedly occurring on or after December 31, 2019 — the tribunal focused on whether any could, if proven, constitute discrimination under the Code.
Hiring ‘pretty girls’
D.H. described an early 2020 interaction in which the dentist allegedly discussed a Vancouver-based dentist who hired “pretty girls” and turned unwanted dental assistants into receptionists. D.H. said the discussion made her feel objectified and was part of a “hostile” workplace atmosphere.
However, Tribunal Member Chapnick found that these comments, while potentially “unprofessional” and “disrespectful,” were not targeted at D.H. and did not rise to the level of discriminatory conduct under human rights law. He stated that “not every negative comment connected to sex attracts scrutiny under the Code.”
‘People discriminate’
In another timely allegation, D.H. said the dentist told her that “people discriminate, I know it’s not fair but that’s just how it is.” She interpreted his posture and tone as intimidating and belittling, given her view that he had previously expressed “derogatory, sexist beliefs.” The tribunal, however, found that these alleged remarks could not, if proven, be linked clearly to sex discrimination.
“Hearing second-hand about unproven allegations of sexual harassment by a person, while unsettling, does not amount to sex discrimination,” Chapnick wrote. The tribunal emphasized that the law requires both a subjective element — how the complainant felt — and an objective one: whether the conduct, on its face, could be seen as discrimination.
Among other timely allegations, D.H. claimed the dentist’s proximity in her operatory, discussion about her moving plans, and other workplace behaviours made her uncomfortable. She also cited receiving the dentist’s personal deliveries at her home and alleged improper video surveillance in treatment rooms. None of these incidents, even if distressing to D.H., were found to constitute plausible sex discrimination. The tribunal held that the required connection to her sex was not established in these late-stage incidents.
Conduct outside the one-year window
D.H. pointed to the earlier alleged conduct, outside the one-year filing window, to provide context. She described instances in 2019 when the dentist purportedly made statements about not hiring male hygienists because “patients preferred having a pretty girl to look at,” and other remarks she found demeaning. She further alleged a physically uncomfortable interaction in an operatory, insinuating it may have been deliberate and sexual.
However, because all the timely allegations fell short of raising an arguable contravention, these older events could not serve as part of a continuing pattern.
The tribunal next considered whether to accept the late-filed allegations under s. 22(3) of the Code, which allows acceptance of late complaints if doing so is in the public interest and would cause no substantial prejudice. D.H. said it was in the public interest to consider her claims and cited her challenges in relocating and navigating the COVID-19 pandemic as reasons for her delay in filing. The tribunal concluded these explanations were not compelling. Chapnick found no “novel or unique issues” that would warrant applying the discretionary exception, stating that “absent further information” about how D.H.’s circumstances affected her ability to file on time, he was not persuaded to accept the late allegations.
Other preliminary matters
In addition to the dismissal, the tribunal addressed two preliminary matters. First, it granted the respondents’ request for anonymity. The tribunal held that naming the individuals and dental clinic could cause reputational harm, especially since D.H.’s allegations remained unproven and would now remain online indefinitely without the opportunity for a full hearing.
“Once information about a person is made public, the privacy of that information can seldom be regained,” Chapnick wrote, quoting past case law. Given that the complaint would not proceed to a hearing, the dentist and the clinic faced potential long-term reputational damage from unproven allegations. The tribunal found that anonymization, at this early stage and given the dismissal, was justified.
Second, the tribunal considered D.H.’s request to amend her response to the dismissal application. While noting the respondents’ objections, Chapnick found that the amended version was “substantively identical” and that considering it would not cause unfairness. Ultimately, the tribunal’s decision did not hinge on which version of D.H.’s response it reviewed.
Throughout the decision, Chapnick stressed that by dismissing the complaint, the tribunal was not making factual findings about what did or did not occur, nor was it condoning offensive workplace behaviour. Rather, the decision turned on whether the alleged facts, as presented, could amount to a breach of the Code. Finding they could not, and that late allegations were not accepted, the tribunal dismissed the complaint under s. 27(1)(b) and s. 27(1)(g).
For more information, see Dental Hygienist v. Dental Corporation (Dental Clinic) and another, 2024 BCHRT 301 (CanLII).
