Date Issued: July 31, 2024

File: CS-000929

Indexed as: Taylor v. Vancouver Coastal Health Authority and others, 2024 BCHRT 223

2024 BCHRT 223 (CanLII)

IN THE MATTER OF THE HUMAN RIGHTS CODE,
RSBC 1996, c. 210 (as amended)

AND IN THE MATTER of a complaint before

the British Columbia Human Rights Tribunal

BETWEEN:

Lodesha Taylor

COMPLAINANT

AND:

Vancouver Coastal Health Authority, Kristen Stevens, Maria Brinza, Alison Parker, and Carrie
Edge

RESPONDENTS

REASONS FOR DECISION

APPLICATION TO DISMISS A COMPLAINT
Section 27(1)(d)(ii)

Tribunal Member: Jessica Derynck

On their own behalf: Lodesha Taylor

Counsel for the Respondents: Lawrence Robinson

I INTRODUCTION

Lodesha Taylor filed a complaint against Vancouver Coastal Health Authority [VCHA]
alleging discrimination in employment. She also named as respondents Kristen Stevens, Maria

2024 BCHRT 223 (CanLII)

Brinza, Alison Parker, and Carrie Edge [Individual Respondents]. I refer to VCHA and the
Individual Respondents together as the Respondents.

Ms. Taylor is a Black woman from Jamaica. She worked for VCHA in a paid training
program from September 23, 2019 to December 4, 2019, when VCHA terminated her
employment. Ms. Taylor alleges that the Respondents treated her adversely compared to other
employees in the training program, including mocking and humiliating her. She says that this
treatment, and the termination of her employment, were discriminatory because she is Black
and an immigrant.

The Respondents deny discriminating. They say they did not mistreat Ms. Taylor, and
that her employment was terminated because she did not meet performance standards. They
apply for dismissal of the complaint against the Individual Respondents under s. 27(1)(d)(ii) of
the Code.

To decide this application, I must determine whether it would further the purposes of
the Code to proceed with the complaint against the Individual Respondents.

For the following reasons, I find that proceeding against the Individual Respondents
would not further the purposes of the Code, and I dismiss the complaint against them.

To make this decision, I have considered all the information filed by the parties. In these
reasons, I only refer to what is necessary to explain my decision. I make no findings of fact.

II BACKGROUND

The following background is taken from the material filed by the parties.

1
 Ms. Taylor worked as a nurse and midwife in Jamaica before moving to British Columbia
in 2017. She worked as a nurse at two different hospitals outside of VCHA, then accepted a
position with VCHA to train as a perioperative nurse in September 2019.

2024 BCHRT 223 (CanLII)

Ms. Taylor received paid training in VCHA’s Regional Perioperative Education Program
[RPEP]. The Respondents say this is a rigorous program in which participants are closely
monitored to determine competencies in five areas.

The Individual Respondents are all employees of VCHA. Ms. Stevens, Ms. Brinza and Ms.
Parker were all involved in Ms. Taylor’s training. Ms. Edge is a Regional Manager.

Ms. Taylor was the only Black employee in the RPEP. She alleges that Ms. Stevens
treated her adversely by rolling her eyes when Ms. Taylor spoke, refusing to make eye contact
with her, calling attention to her mistakes, and embarrassing her in front of other students, for
example, by saying she “makes no sense”. Ms. Taylor says that on one occasion, Ms. Stevens
allowed other students to choose topics for an assignment first, leaving her with whatever was
left over.

Ms. Taylor says Ms. Brinza also treated her adversely by humiliating her in front of
others. She says Ms. Brinza once rudely asked her in front of another tutor if she has problems
communicating with others. When Ms. Taylor said she was nervous, she alleges that Ms. Brinza
rudely asked her why, and whether she needed to “see someone”.

Ms. Taylor alleges that Ms. Parker embarrassed her in front of other students on the
first day of class by putting up her hands and stating that Ms. Taylor had too many windows
open on the computer system. Ms. Taylor says Ms. Parker asked her many questions during
room preparation and did not do this to other students, and spoke to her in a louder tone than
she used with others. Ms. Taylor alleges that Ms. Parker embarrassed her by handing her items
she had dropped in front of other students, and telling other students that Ms. Taylor was
having a difficult time. Ms. Taylor also says Ms. Parker gave her a learning plan without a union
steward present, and misled her by telling her that she would not be terminated from the

2
program even if the plan was not successful. She also says Ms. Parker coerced her into signing
an evaluation that she did not agree with.

Ms. Taylor alleges that Ms. Edge, in the presence of Ms. Parker and another manager,

2024 BCHRT 223 (CanLII)

denied her request for a union steward, and fired her, telling her to clean out her locker, leave
the premises, and not return.

The Respondents say they noticed deficiencies in Ms. Taylor’s performance, and gave
her an opportunity to address them, but the deficiencies persisted beyond a mid-term
evaluation in November 2019. They say Ms. Taylor failed to demonstrate the requisite
competency with sterility. They say this was the only reason she was dismissed from the
program and her employment with VCHA.

III DECISION

The Respondents argue that it would not further the Code’s purposes to proceed against
the Individual Respondents: Daley v. BC (Ministry of Health), 2006 BCHRT 341 [Daley].

There are strong policy reasons that favour complaints against individual respondents.
As the Supreme Court of Canada has acknowledged, “the aspirational purposes of
the Code require that individual perpetrators of discrimination be held accountable for their
actions”: British Columbia Human Rights Tribunal v. Schrenk, 2017 SCC 62 at para. 56. This is
especially true for allegations of discrimination with a high degree of personal culpability, like
sexual or racial harassment: Daley at para. 53.

On the other hand, naming individual respondents can complicate and delay the
resolution of complaints, exacerbate feelings of personal animosity, and cause needless
personal distress to individuals who are accused of discrimination: Daley at para. 54. Because
employers and institutional respondents are liable for the acts of their agents, they will be
responsible for any remedy ordered by the Tribunal: Code, s. 44(2); Robichaud v. Canada,
[1987] 2 SCR 84. In those situations, the remedial aims of the Code may be most fairly and
efficiently fulfilled without holding individuals liable.

3
 The Tribunal balances all these considerations to decide whether the purposes of
the Code are best served by having a complaint proceed against individuals as well as an
institutional respondent, or against the institutional respondent only. It has identified the
following factors as relevant:

2024 BCHRT 223 (CanLII)

a. whether the complaint names an institutional employer as a respondent and that
respondent has the capacity to fulfill any remedies that the Tribunal might order;

b. whether the institutional respondent has acknowledged the acts and omissions
of the individual as its own and has irrevocably acknowledged its responsibility to
satisfy any remedial orders which the Tribunal might make in respect of that
individual's conduct; and

c. the nature of the conduct alleged against the individual, including whether:

i. their conduct took place within the regular course of their employment;

ii. the person is alleged to have been the directing mind behind the
discrimination or to have substantially influenced the course of action
taken; and

iii. the conduct alleged against the individual has a measure of individual
culpability, such as an allegation of discriminatory harassment.

Daley at paras. 60-62.

I will address these factors in turn.

First, VCHA is named as an institutional respondent, and submits that it will fulfill any
remedies that are ordered if the complaint is allowed. This factor weighs in favour of dismissal
against the Individual Respondents.

Second, VCHA submits that all of the allegations against the Individual Respondents
concern the performance of their duties as VCHA employees. VCHA says it accepts liability for

4
any allegations in the complaint that are proven to contravene the Code. This weighs in favour
of dismissal against the Individual Respondents.

On the issue of the nature of the alleged conduct, Ms. Taylor does not dispute that the

2024 BCHRT 223 (CanLII)

alleged conduct took place in the course of the Individual Respondents’ employment. Ms.
Taylor argues, however, that the “directing mind” and “individual culpability” considerations
form Daley weigh in favour of proceeding against the Individual Respondents. I disagree. For
the reasons that follow, I am not satisfied that these considerations weigh in favour of
proceeding against the Individual Respondents in the circumstances of this case.

Ms. Taylor submits that each of the Individual Respondents was a directing mind behind
VCHA’s impugned actions, or at least had the ability to substantially influence the course of
action taken. Ms. Taylor also points to her allegations that Ms. Parker, Ms. Brinza, and Ms.
Stevens embarrassed her. She says they made her feel bullied and harassed.

I find that the “directing mind” consideration is neutral in this case. There is no evidence
before me that any one of the Individual Respondents was the directing mind behind the
standards of the RPEP, how those standards were applied to Ms. Taylor, or VCHA’s decision to
termination of her employment. Further, with respect to Ms. Taylor’s allegations that the
Individual Respondents treated her adversely, while I agree with Ms. Taylor that if any of the
Individual Respondents directly harassed Ms. Taylor or singled her out based on her protected
characteristics, they would be the “directing mind” behind any conscious decision to do so, I do
not understand that to be the primary allegation in the complaint. Rather, as I understand it,
Ms. Taylor asks the Tribunal to infer that she was treated differently from others in the program
because of her protected characteristics. This alleged conduct is more likely the result of
unconscious bias, rather than conscious decisions. In these circumstances, I am not satisfied
that this consideration weighs in favour of proceeding against the Individuals.

Finally, Ms. Taylor submits that the Individual Respondents should bear individual
culpability for the alleged conduct because she felt singled out, bullied, and harassed, and

5
because of the impact on her of losing her job. As I understand, Ms. Taylor argues that the
“individual culpability” consideration weighs heavily in favour of denying the application.

I am not satisfied that this consideration weights in favour of proceeding against the

2024 BCHRT 223 (CanLII)

Individual Respondents in all of the circumstances.

As I noted above, I understand that the allegations against the Individual Respondents
are principally allegations of unconscious bias. Unlike overt racial, sexual, or other harassment,
this is not the type of alleged conduct that has the same measure, or a significant measure, of
individual culpability. Put another way, it is not allegations of egregious conduct, where no
plausible argument can be made that the Individual Respondents were acting within the scope
of their employment: Daley, at para. 62.

I do not mean to suggest that subtle, unconscious discrimination is necessarily less

serious, or necessarily has less of an impact on complainants. However, for the purposes of this
analysis, I find there is a difference between allegations that an individual respondent
intentionally and directly harassed a complainant based on a protected characteristic, where no
plausible argument can be made that the harasser was acting in the scope of their authority,
and allegations that more subtle, unconscious discrimination, which the individual respondents
may not have even been aware of, was a factor in workplace decisions that impacted the
complainant. The former often has a clear and significant measure of individual culpability, and
often falls outside of conduct for which an employer is willing to take responsibility. The latter
does not have the same significant measure of individual culpability as the Tribunal identified in
Daley. Further, the latter is more likely to be intertwined with an institutional respondent’s
policies, procedures, and/or oversight – for example, VCHA’s manner of teaching and
evaluating employees in the RPEP – which makes it less likely that proceeding against the
Individual Respondents, in all of the circumstances, will further the purposes of the Code.

Finally, Ms. Taylor submits that the Respondents’ conduct is serious because of the
impacts on her. However, she does not seek any remedies that would need to be fulfilled by the
Individual Respondents in particular. Ms. Taylor seeks reinstatement to her job, new policies in

6
place, and compensation for lost wages, expenses, and injury to dignity. If the complaint is
successful, an order for remedies will reflect the seriousness of the conduct and the impacts on
Ms. Taylor, and all of the remedies she seeks can be fulfilled by VCHA. I find that the impacts of
the alleged conduct on her are not a basis for individual culpability.

2024 BCHRT 223 (CanLII)

Overall, the Daley factors weigh in favour of dismissal against the Individual
Respondents. On this basis, I grant the Respondents’ application.

IV CONCLUSION

The complaint is dismissed against the Individual Respondents under s. 27(1)(d)(ii) of

the Code.

Jessica Derynck
Tribunal Member
Human Rights Tribunal