La Saw v. Meridian Medical and another, 2009 BCHRT 351
REASONS FOR DECISION
APPLICATION TO DISMISS: Sections 27(1)(b), (c), (d)(ii), and (g)
Tribunal Member:
Tonie Beharrell
Counsel for the Complainant:
Ib S. Petersen
Counsel for the Respondents:
Randy Kaardal and Paul Heisler
I INTRODUCTION
[1] On February 3, 2009, KL filed a complaint with the Tribunal, in which she alleges that her former employer, Meridian Medical Inc. (“Meridian”), and Meridian’s Chief Executive Officer, Robert Krznaric, discriminated against her with respect to her employment on the basis of her sex and family status, contrary to s. 13 of the Human Rights Code. In a letter dated March 26, 2009, the Tribunal advised the parties that it accepted this part of the complaint for filing.
[2] The initial complaint also included an allegation of retaliation contrary to s. 43 of the Code, but the Tribunal did not accept that part of the complaint for filing. The complaint did not allege any incidents of retaliation post-dating the filing of the complaint: Cariboo Chevrolet Pontiac Buick GMC Ltd. v. Becker, 2006 BCSC 43 (CanLII), [2006] B.C.J. No. 119.
[3] The respondents deny discriminating against Ms. KL and apply to dismiss the complaint under ss. 27(1)(b), (c), (d)(ii) and (g) of the Code, which provide:
(1) A member or panel may, at any time after a complaint is filed and with or without a hearing, dismiss all or part of the complaint if that member or panel determines that any of the following apply:
…
(b) the acts or omissions alleged in the complaint or that part of the complaint do not contravene this Code;
(c) there is no reasonable prospect that the complaint will succeed;
(d) proceeding with the complaint or that part of the complaint would not
…
(ii) further the purposes of this Code;
…
(g) the contravention alleged in the complaint or that part of the complaint occurred more than 6 months before the complaint was filed unless the complaint or that part of the complaint was accepted under section 22 (3).
II BACKGROUND TO COMPLAINT AND APPLICATION
[4] Below, I review some of the information before me with respect to Ms. KL’s complaint, and the respondents’ application to dismiss. It is not a complete recitation of all of the parties’ allegations or submissions, but is designed to give an overview of the events giving rise to the complaint. In doing so, I am not making any findings of fact.
[5] Meridian is a company which develops and sells medical equipment for the preventative and aesthetic medical markets, including a product known as the LipoLaser. Mr. Krznaric is the President and Chief Executive Officer of Meridian. He was appointed as Meridian’s CEO in May 2008, and in 2009 was also appointed President. Prior to Mr. Krznaric, Meridian’s President was Anna Brazier.
[6] Ms. KL states that she worked for Meridian from August 1, 2006 to August 2008, as a clinical researcher and sales associate. In this position she was responsible for clinical training, trouble shooting, graphic design and sales. In contrast, the respondents state that Ms. KL commenced employment with Meridian on October 22, 2007 as a sales and marketing representative. They say that, prior to commencing employment, Ms. KL was engaged as an independent contractor for Meridian. Nothing turns on the difference for the purposes of this application.
[7] Ms. KL alleges that the respondents engaged in conduct towards her that had the effect of creating a poisoned work environment, including the following:
a) Mr. Krznaric told her that he wanted to replace her, and other employees, with members of his family. Ms. KL notes that Meridian did, in fact, hire Mr. Krznaric’s brother-in-law as director of sales and marketing;
b) The respondents changed or attempted to change numerous terms and conditions of her employment, including remuneration and job content. In particular, Ms. KL alleges that on June 19, 2008, employees were told that salaries would be reduced, and that they could stay or be fired. Her own income was reduced by approximately $1,500 per month. She also alleges that she was told that she was to concentrate on sales full-time.
c) Mr. Krznaric would stare at Ms. KL’s breasts, in a manner noticed by other employees, making her feel uncomfortable. Further, when she reported this behaviour to Ms. Brazier, nothing was done about it;
d) Mr. Krznaric would make frequent use of profanities and sexually charged language including “fucking cunt” and “cocksucker”. Again, Ms. KL complained to Ms. Brazier about this behaviour, but nothing was done about it; and
e) On June 16, 2008, Mr. Krznaric told Ms. La Saw, in front of another employee, that she should “use her tits to see the LipoLaser”.
[8] The respondents deny these allegations, and state that:
a) They deny the statements alleged by Ms. KL in relation to the hiring of family members. Meridian hired Warren Cudney, who is Mr. Krznaric’s brother-in-law, on July 1, 2008, as Director of Marketing and Sales. Mr. Cudney was not hired to, and did not, replace Ms. KL or any other employee. Mr. Cudney was hired into a new role with different responsibilities and duties that involved overseeing several Meridian employees, including Ms. La Saw;
b) They did not change or attempt to change any of Ms. KL’s terms or conditions of employment. Rather, the respondents exercised their right under the Employment Agreement to assign duties to Ms. KL as required. In particular, around June 2008, the respondents directed Ms. KL to focus her work efforts towards sales and to stop developing marketing materials;
c) They deny that Mr. Krznaric ever stared at Ms. KL’s breasts in the workplace, and deny that Ms. KL complained to Ms. Brazier in this regard;
d) They deny that Mr. Krznaric frequently used profanities and sexually charged language in the workplace, and deny that Ms. KL complained to Ms. Brazier in this regard. The respondents allege that Ms. La Saw frequently made lewd comments and engaged in inappropriate conduct of a sexual nature; and
e) They deny that Mr. Krznaric ever told Ms. KL to “use her tits to see the LipoLaser”.
[9] Ms. KL, in turn, disputes many of the allegations made by the respondents.
[10] Ms. KL states that her employment with Meridian was terminated on August 7, 2008. The respondents state that Ms. KL’s employment was terminated for cause, including Ms. KL’s insubordination in refusing to follow Mr. Cudney’s instructions. The respondents deny any nexus between the termination and any prohibited grounds of discrimination under the Code.
[11] Ms. KL alleges that, following the termination of her employment, the respondents falsely accused her of improperly training users of the LipoLaser, informing customers that its product was not CSA approved, and attempting to interfere in the contractual relations between Meridian and the supplier of its medical products. Further, Ms. KL alleges that the respondents attempted to interfere with a prospective employer.
[12] The respondents note that these allegations all occurred after Ms. KL’s employment was terminated, and involve circumstances where the respondents allege that Ms. KL interfered with their business by making false allegations against Meridian and its products.
[13] In addition, the respondents note that Ms. KL signed a document on October 14, 2008, which they say released Meridian of all claims in respect of her employment. That document related to the payment to Ms. KL of a disputed commission amount, and stated:
Re: [specific client] Commission
The following letter is an acknowledgement that there are no outstanding monies or any Other business dealings with KL. The following commission cheque is the Final payment that Meridian Medical Inc. owes KL, and there will be no Further claims against Meridian Medical Inc. in the future. [reproduced as written].
[14] The release is signed by Ms. KL, Ms. Brazier and Mr. Krznaric.
III ANALYSIS AND DECISION
[15] The parties make submissions with respect to that part of the complaint that alleges discrimination contrary to s. 43 of the Code. However, as outlined above, that part of the complaint was not accepted for filing by the Tribunal, and I do not further consider the parties’ submissions in this regard.
[16] With respect to the other aspects of the complaint, the respondents make four arguments for dismissal. I will consider each of these arguments in turn.
1. Family Status
[17] The respondents argue that the complainant’s allegations of discrimination on the basis of family status should be dismissed pursuant to ss. 27(1)(b) or (c) of the Code. They argue that the allegations made do not include any facts that, even if proven, could constitute discrimination on the basis of family status. They note in particular that, while Ms. KL alleges that Mr. Krznaric told her that he wanted to replace her with members of his family, there are no allegations that he in fact did so. While Mr. Krznaric did hire his brother-in-law, Mr. Cudney, it was prior to Ms. KL’s termination and in a different role.
[18] In her response, Ms. KL alleges that Mr. Krznaric hired essentially unqualified people to take responsibility for the sales department, including:
a) Mr. Cudney, who replaced Jonas LaForge as the Director of Medical and Technical and head of Meridian’s sales department; and
b) Darren Thomas, Mr. Cudney’s friend, as sales manager for Alberta;
[19] Ms. KL does not allege that her employment was directly affected by the employment of Mr. Cudney. She does allege that her employment was affected by the employment of Mr. Thomas. She states that, as a result of his hiring, she lost sales leads in Alberta and commission earnings for sales she had previously generated in Alberta.
[20] I cannot find that Ms. KL’s allegations in her complaint and submissions, even if proven, could lead to a finding of discrimination on the basis of family status. I therefore dismiss this part of her complaint under s. 27(1)(b) of the Code. I come to this conclusion for the following reasons.
[21] First, I accept that the ground of family status can include a prohibition against nepotism in employment hiring practices: Rivers v. Squamish Indian Band [1994] C.H.R.D. No. 3, Thomson v. Eurocan Pulp & Paper Company, 2002 BCHRT 32. However, Ms. KL is not alleging that any family member of Mr. Krznaric was hired in preference to her, or was provided with employment opportunities that she was not. While she alleges that another employee was replaced by Mr. Cudney, this is not an allegation of discrimination against Ms. KL.
[22] Second, while Ms. KL alleges that a friend of Mr. Cudney’s was hired as sales manager for Alberta, and that many of her clients were given to him, this allegation would not ground a finding of discrimination on the basis of family status under the Code. In Wang v. Oceanfood Industries Ltd., 2006 BCHRT 379, para. 15, the Tribunal found that a “friend of the family” relationship is simply too remote to ground a claim of discrimination on the basis of family status. I agree with the decision in Wang, and with the respondents’ submission that “family status” does not extent to protecting employees from being discriminated against in preference to other individuals with whom the employer has a non-familial relationship.
[23] As a result of the above, Ms. KL’s allegations in this regard, even if proven, would not establish a contravention of the Code. For these reasons, I dismiss that part of the complaint that alleges discrimination on the basis of family status under s. 27(1)(b) of the Code.
2. Wrongful Dismissal and Post-Employment Conduct
[24] The respondents argue that the part of Ms. KL’s complaint relating specifically to her termination, and allegations relating to the post-employment conduct of the respondents, should be dismissed under ss. 27(1)(b) and (c) of the Code, on the basis that the allegations, even if proven, could not constitute a contravention of the Code or, in the alternative, that there is no reasonable prospect that Ms. KL could succeed in establishing a contravention of the Code with respect to these allegations.
[25] I will first deal with the termination allegations, and then with the allegations relating to post-employment conduct.
A. Termination of Ms. La Saw’s Employment
[26] In this regard, the respondents note that Ms. KL does not allege that her sex was a factor in the respondents’ decision to terminate her employment. They state that, while Ms. KL may dispute the merits of their cause for termination in a civil proceeding, the Tribunal does not have the jurisdiction to decide whether their termination of the complainant’s employment or the manner of that termination was wrongful or unfair, only whether it was discriminatory: Geraskina v. Immigrant Services Society of British Columbia, 2008 BCHRT 323 (CanLII).
[27] Similarly, the respondents argue that Ms. KL has not alleged any nexus between a prohibited ground of discrimination and the post-employment conduct of which she complains. The respondents note that the alleged conduct (which they deny) could not have detrimentally affected her employment with Meridian, as that employment had already been terminated.
[28] In response, Ms. KL states that she is alleging that the termination of her employment was based, in part, on her sex. First, in her complaint she alleges that the respondents’ conduct created a poisoned work environment. Second, in her submission, Ms. KL clarifies that she is alleging that her termination was also related to her complaints about Mr. Krznaric’s conduct and her refusal to use sex to sell Meridian’s equipment. She notes that she complained to Ms. Brazier, who did nothing, and states that she believes that she was fired, at least in part, because she complained about Mr. Krznaric’s conduct.
[29] I agree that the complaint form itself does not explicitly allege a nexus between these allegations and the termination of Ms. La Saw’s employment. However, on the basis of all of the information before me, I find that such an allegation is encompassed by the complaint.
[30] For the reasons outlined above, I deny the respondents’ application to dismiss the part of the complaint related to Ms. KL’s termination under s. 27(1)(b) of the Code. Further, given the divergence in the accounts of the parties, and the centrality of credibility to a determination of the matters at issue, I cannot find that this part of the complaint has no reasonable prospect of success. I therefore also deny the respondents’ application to dismiss this part of the complaint under s. 27(1)(c) of the Code.
B. Post-Employment Conduct
[31] With respect to the post-employment conduct, I find that it is not relevant to an issue of whether there has been a contravention of s. 13 of the Code with respect to Ms. KL’s employment with Meridian. I therefore dismiss the part of the complaint relating to these allegations under s. 27(1)(b) of the Code, as they would not, even if proven, establish a contravention of the Code.
[32] However, and as noted by Ms. KL, evidence with respect to such actions may be relevant to the remedial aspect of the complaint, should Ms. KL be successful in her complaint at hearing. For example, the respondents’ actions relating to her employment after she left Meridian may relate to wage loss, or may be relevant to any impact on her dignity, feelings and self-respect.
[33] Issues relating to the relevance and admissibility of evidence in this regard are best left to the hearing member, and nothing in this decision should be taken as determining those issues.
3. Release
[34] The respondents argue that the entire complaint against Meridian should be dismissed under s. 27(1)(d)(ii) of the Code, on the basis that proceeding with it would not further the purposes of the Code. In this regard the respondents point to the release signed by Ms. KL. They note the Tribunal’s jurisprudence indicates that it may not further the purposes of the Code to allow a complaint to proceed where a valid settlement agreement exists.
[35] The respondents argue that the release shows that Ms. KL agreed to forgo any further claims against Meridian. She executed the release in this regard, two months after the termination of her employment.
[36] In Thompson v. Providence Health Care, 2003 BCHRT 58, the Tribunal stated that, where a settlement agreement, or release, is alleged, it is for the party seeking to rely on that agreement to prove first, the existence of a valid agreement, and second, that the agreement was intended to release the respondent from any further liability in respect of the human rights complaint in issue.
[37] In this case, there does not appear to be any dispute that there is a valid agreement between the parties. The question is whether the agreement was intended to release the respondent for any further liability in respect of the human rights complaint.
[38] In Thompson, the Tribunal also outlined a number of factors that are relevant to the determination of whether a release would bar a complaint. The factors include the language of the release itself as to what is included, explicitly or implicitly, the existence or absence of independent legal advice, the knowledge of the party executing the release as to their rights under the Code, and possibly, the knowledge of the party receiving the release that a potential complaint is contemplated.
[39] In this case, the release, on its face, cannot be said to include matters arising under the Code. It contains a heading which refers specifically to the commission in issue. It discusses “no outstanding monies or any other business dealings” between the parties. While the release also states that there will be “no further claims”, I cannot find that this wording is specific enough to include statutory claims and, in particular, claims under the Code.
[40] I also note that the release refers only to Meridian and not to any of the officers, directors, employees or agents of Meridian, which one would expect in a comprehensive release intending to resolve all outstanding claims between parties in an employment relationship.
[41] Further, there is no information before me which would support a finding that a potential human rights complaint was in the minds of any of the parties. Mr. Krznaric states that he made it clear to Ms. La Saw that, while the respondents denied her entitlement to the commission, they would pay her the money if she released the company of all potential claims she may have against Meridian. However, the respondents also note that Ms. KL had not raised issues with respect to any human rights claims.
[42] Ms. KL, for her part, states that, in her mind, all she was agreeing to settle was that she had no additional claims for commission. She states that no other matters, other than outstanding commission claims, were discussed.
[43] On all the information before me, I cannot find that the agreement entered into by Meridian and Ms. KL to resolve an outstanding commission issue, leads to the conclusion that it would not further the purposes of the Code to proceed with Ms. KL’s complaint. I therefore deny the respondents’ application to dismiss the complaint against Meridian pursuant to s. 27(1)(d)(ii) of the Code.
4. Time Limit
[44] The respondent argues that, given that the termination of Ms. KL’s employment is not an allegation of discrimination; the last alleged incident of discrimination occurred on June 16, 2008, more than six months before the complaint was filed.
[45] Given my finding above, that Ms. La Saw’s complaint includes an allegation that her termination was discriminatory, I find that the complaint was filed in time, and I deny the respondents’ application to dismiss the complaint under s. 27(1)(g) of the Code.
IV CONCLUSIONS
[46] As outlined above, the part of Ms. KL’s complaint accepted by the Tribunal was that relating to her allegations of discrimination with respect to employment on the basis of sex and family status. The portion of her complaint alleging retaliation was not accepted by the Tribunal. If Ms. KL is now alleging retaliation with respect to events post-dating the filing of her complaint, she must apply to amend her complaint in this regard.
[47] For the reasons given above, I dismiss those parts of Ms. KL’s complaint alleging discrimination on the basis of family status and discrimination in post-employment conduct under s. 27(1)(b) of the Code.
[48] I deny the remainder of the respondents’ application to dismiss. As a result, Ms. KL’s complaint of discrimination in employment on the basis of sex continues before the Tribunal.