An application to dismiss a sexual harassment complaint filed by a former traffic controller against Power Flagging & Traffic Control Inc., her union, and a co-worker has been denied by the British Columbia Human Rights Tribunal, allowing the case to proceed to a hearing.
In the decision, Tribunal Member Jonathan Chapnick addressed whether the complaint by J.M. should be dismissed without a hearing, not whether discrimination occurred. J.M. alleges that between 2016 and 2018, her co-worker G.G. sexually harassed and assaulted her, and that both Power Flagging and the International Brotherhood of Electrical Workers, Local 258 (IBEW), failed to assist her after she reported the incidents.
J.M. filed the complaint on December 18, 2018, alleging discrimination under sections 13 and 14 of the Human Rights Code. She claims G.G. engaged in inappropriate behaviour, including unwanted touching and threats, and that her employer and union did not support her when she came forward.
Power Flagging and IBEW applied to dismiss the complaint on various grounds, including that parts of the complaint were filed outside the one-year time limit and that the matter had been appropriately dealt with in other proceedings. G.G. argued for dismissal under section 27(1)(f), stating that the allegations were addressed in a criminal proceeding where he was acquitted.
The tribunal found that J.M.’s complaint alleges a timely continuing contravention, as the alleged incidents between 2016 and 2018 were of the same or similar character. “I find that Ms. Mohr’s complaint alleges a timely continuing contravention,” Tribunal Member Chapnick wrote.
Regarding the dismissal applications under section 27(1)(f), the tribunal noted insufficient evidence to conclude that the substance of the complaint had been appropriately dealt with in another proceeding. “There is no evidence before me detailing the particulars of the charges against Mr. Gagnon… The information before me is not sufficient to allow an assessment of whether the substance of Ms. Mohr’s discrimination complaint… was appropriately dealt with in the criminal proceeding,” the decision stated.
Power Flagging argued that J.M. was terminated due to the closure of its northern division, not because of any discriminatory reasons. However, the tribunal found discrepancies in the evidence regarding the circumstances of her termination. “If Ms. Mohr proves this timeline of events at a hearing, it could reasonably give rise to an inference that her sexual assault report in March 2018 factored into her not continuing to work,” Chapnick wrote.
IBEW contended that the tribunal was not the appropriate venue for J.M.’s allegations, suggesting that the grievance procedure under the collective agreement or the Labour Relations Board would be more suitable. The tribunal disagreed, stating that “the Tribunal is a proper venue for Ms. Mohr’s complaint.”
Due to an oversight in the tribunal’s processing of the complaint, IBEW was not given a clear opportunity to make submissions regarding the dismissal under sections 27(1)(b) and (c). The tribunal will contact the parties with instructions for an expedited submissions process on this matter, it said.
G.G.’s application to dismiss the complaint was also denied. The tribunal emphasized that credibility issues between J.M. and G.G. are foundational and must be decided at a hearing. “The materials before me do not include corroborating eyewitness evidence either way; it is essentially one person’s word against another’s. This type of scenario is extremely ill suited for a preliminary dismissal application,” the decision noted.
The tribunal concluded that the complaints against Power Flagging and G.G. will proceed to a hearing, and the matter concerning IBEW will be addressed after further submissions.
For more information, see Mohr v. Power Flagging & Traffic Control Inc. (Power Earth) and others, 2024 BCHRT 275 (CanLII).
