The BC Human Rights Tribunal has allowed a discrimination complaint from a former settlement worker to proceed to a hearing, rejecting the employer’s application to dismiss the case.
Most of the complaint filed by D.A.E. against Immigrant Services Society of BC will move forward, with the tribunal finding reasonable grounds to hear allegations of sex, race and physical disability discrimination while dismissing only claims related to mental disability.
In its decision, the tribunal rejected the agency’s arguments that the complaint had no reasonable prospect of success, was untimely, or would not further the purposes of the Human Rights Code.
“The allegations of discrimination based on sex, race, and physical disability will proceed to a hearing,” the tribunal stated.
Background of the complaint
D.A.E. began working for the Society as a settlement case worker in January 2019. She alleged that a male co-worker sexually assaulted her in an elevator at work on May 2, 2019, and reported the incident to her supervisors the following day.
She filed a human rights complaint in June 2019, claiming the Society discriminated against her through its inadequate response to her reported sexual assault. She later amended her complaint to include allegations of disability discrimination.
The complainant specifically alleged that:
- A Society employee investigating the assault asked if the co-worker’s behaviour amounted to “flirting” in her culture
- The Society did not inform her of the findings of its investigation
- The Society relocated her rather than the alleged perpetrator, exacerbating her distress
- The Society failed to accommodate a back injury she sustained during the alleged assault
The Society’s response and investigation
According to the decision, the Society investigated the incident by interviewing both parties. The male co-worker admitted to some “inappropriate behaviour” such as tickling D.A.E. and trying to read her palm, but denied trying to kiss her as she alleged.
The Society determined it could not reach a conclusion about what exactly happened in the elevator but issued the co-worker a written warning stating that any future inappropriate behaviour could result in termination. It also decided to separate the employees by relocating D.A.E. to its New Westminster office.
Ruling on timeliness
The Society argued that D.A.E.’s amended allegations regarding disability discrimination were filed too late. The tribunal disagreed, stating that the timeliness of an amendment is based on when the events occurred, not when the amendment was filed.
“There is no dispute that D.A.E. went on leave without pay in June 2019, making the allegations of disability discrimination set out in the Second Amendment timely allegations based on the date D.A.E. filed the Initial Complaint,” the tribunal noted.
Settlement offer rejected
The Society also sought dismissal on the grounds that it had made D.A.E. a reasonable settlement offer. However, the tribunal found the offer did not meet the prerequisites for dismissal because it “remained open for seven days only” and “did not remain open for acceptance regardless of the outcome of the application to dismiss.”
Dismissal of mental disability claim
While allowing most claims to proceed, the tribunal dismissed D.A.E.’s allegations of mental disability discrimination.
“To the extent that D.A.E. is alleging the Society’s response to her report adversely impacted her mental health, however, that is not an allegation of discrimination based on mental disability,” the tribunal wrote.
It cited previous rulings that “the fact that an incident at work negatively affects a person’s mental health does not necessarily amount to evidence of discrimination.”
Employer’s response to sexual misconduct
The tribunal addressed the responsibilities of employers when handling allegations of sexual misconduct, noting that “an effective response to an allegation of sexual violence can mitigate or eliminate adverse impacts on a survivor and restore a discrimination-free environment.”
Conversely, “a failure to reasonably respond can exacerbate the harms of discrimination or even cause further harms,” the tribunal observed.
The decision emphasized that complaints about inadequate responses to sexual assault reports can proceed independently of whether the underlying assault is proven: “A failure to respond reasonably and appropriately may amount to discrimination, even if the underlying conduct complained about is determined not to be discriminatory.”
Disputed facts requiring a hearing
The tribunal found several key factual disputes requiring resolution at a hearing, including whether the employer’s HR director actually made the comment about “flirting” in D.A.E.’s culture and whether relocating D.A.E. rather than the co-worker was justified.
While the employer argued it could not relocate the co-worker due to funding requirements and language skills, the tribunal was “not persuaded the Society is reasonably certain to prove its assertion that the co-worker could not be relocated instead.”
The tribunal also found merit in D.A.E.’s allegation that being relocated “felt like a form of secondary victimization,” noting this impact claim wasn’t merely speculative.
“When I consider all of the above in the context of a sexual assault allegation, I find D.A.E. has taken her allegations of sex and race discrimination out of the realm of conjecture,” the tribunal concluded.
For more information, see Al Edwan v. The Immigrant Services Society of British Columbia, 2025 BCHRT 66 (CanLII).
