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ARTICLE · 08 SEPTEMBER 2021

Speculation In Human Rights Claims – A Recent Decision

Norton Rose Fulbright Canada LLP
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Thankfully, the BC Human Rights Tribunal (HRT) has held that speculation is not sufficient to make out a case of discrimination...

CanadaEmployment and HR
Herb Isherwood
Herb Isherwood
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One of the challenging circumstances often facing an employer is having to make a tough decision (e.g. termination) with respect to an employee who is known to have a protected characteristic under human rights law. Whether the employee is elderly, has a disability, is gay, or has another protected characteristic, the concern is that the employee will allege that the decision was discriminatory. Even if the employer is comfortable that the protected ground was not a factor in the adverse decision, the threat or commencement of a complaint will add costs, time and stress.

Thankfully, the BC Human Rights Tribunal (HRT) has held that speculation is not sufficient to make out a case of discrimination. It is generally not sufficient to allege, "I am [old, pregnant, lesbian, disabled, etc.] and was [terminated, disciplined, denied a promotion, etc.] therefore I was discriminated against. The employee must demonstrate a causal connection, i.e. that the characteristic was

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