Bilac v. N/C Tractor Services Inc., Arthur Currie and Shona Abby

Bilac v. Abbey, Currie and NC Tractor Services Inc.
Collection
Canadian Human Rights Tribunal
Date
2023-09-18
Neutral citation
2023 CHRT 43
File number(s)
T2525/8220;, T2540/9720;, T2542/9820
Decision-maker(s)
Harrington, Colleen
Decision type
Decision
Grounds
Gender identity or expression
Summary:
Denny Bilac, a transgender man, filed a complaint against NC Tractor, his employer, Arthur Currie, the owner of NC Tractor, and Shona Abbey, an employee of NC Tractor (the “Respondents”).
Mr. Bilac alleges that the Respondents harassed him on the basis of gender identity or expression and failed to provide a harassment-free work environment, contrary to section 14 of the Canadian Human Rights Act (CHRA).
The Tribunal agreed with Mr. Bilac and found that both Mr. Currie and Ms. Abbey engaged in harassment against Mr. Bilac. Specifically, the Tribunal found that Mr. Currie and Ms. Abbey repeatedly misgendered Mr. Bilac. They also engaged in “deadnaming” against Mr. Bilac, which involved referring to him by his assigned name at birth. In addition, Mr. Currie also engaged in discriminatory harassment against Mr. Bilac on the basis of gender identity or expression by making comments and asking questions that communicated Mr. Currie’s belief that Mr. Bilac was not really a man.
The Tribunal also found that the Respondents failed to meet the conditions in section 65(2) of the CHRA to avoid fault for the discriminatory harassment. Specifically, the Tribunal found that NC Tractor did not engage in “all due diligence” to prevent the harassment since nothing was done to prevent the deadnaming and misgendering that occurred while Mr. Bilac was employed.
As a remedy, the Tribunal reviewed the authorities and ordered $15,000 in damages for pain and suffering under section 53(2)(e) of the CHRA and $3,000 in damages for special compensation under section 53(3) of the CHRA. The Tribunal did not order compensation for lost wages because it found that there was no causal connection between the discrimination and the lost wages he claimed. The Tribunal did not order Mr. Currie and Ms. Abbey to undergo training because their employment status was unknown, and NC Tractor was no longer a functional company. However, if NC Tractor becomes operational under Mr. Currie in the one year following the decision, then he is required to contact the Canadian Human Rights Commission in order to receive training for him and his employees about harassment in relation to trans and gender diverse individuals.
The Tribunal also found NC Tractor and Mr. Currie jointly and severally responsible to pay 80% of the pain and suffering award and 100% of the special compensation award. By contrast, the Tribunal found Ms. Abbey responsible for only 20% of the award for pain and suffering. This is because the Tribunal found that Mr. Currie was responsible for more discriminatory behaviour than Ms. Abbey.
Decision Content
Canadian Human Rights Tribunal
Tribunal canadien des droits de la personne
Citation: 2023 CHRT
43
Date:
September 18, 2023
File Nos.:
T2525/8220; T2540/9720; T2542/9820
Between:
Denny Bilac
Complainant
- and -
Canadian Human Rights Commission
Commission
- and -
Shona Abbey, Arthur Currie and NC Tractor Services Inc.
Respondents
Decision
Member:
Colleen Harrington
Table of Contents
I. Overview 1
II. Decision 2
III. Preliminary Matter: Scope of the Complaint 2
IV. Issues 4
V. Analysis 5
A. Issue 1: Mr. Bilac has established that he was harassed on the basis of his gender identity or expression during his employment 5
(i) Legal Framework 5
Evidence 6
(ii) Uncontested evidence 7
(iii) Contested evidence 13
(iv) Evidence about the end of Mr. Bilac’s employment 26
B. Issue 2: NC Tractor is liable for the discriminatory conduct of Mr. Currie and Ms. Abbey pursuant to section 65 of the CHRA 28
(i) Section 65(1) of the CHRA 29
(ii) Section 65(2) of the CHRA 29
C. Issue 3: Mr. Bilac is entitled to the following remedies 31
(i) Pain and Suffering 32
(ii) Special compensation 35
(iii) Lost wages 39
(iv) Training for the individual respondents 42
(v) Allocation of Liability 43
(vi) Request that Tribunal remain seized 44
VI. Order 44
I. Overview
[1] The Complainant, Denny Bilac, is a transgender man who uses the masculine pronouns “he, him and his”. He uses the name Denny in all aspects of his ordinary life. Mr. Bilac was assigned another name at birth which he has not been able to legally change, referred to in this decision as his “deadname”.
[2] Around the end of August of 2018 Mr. Bilac became employed as a truck driver with a company called NC Tractor Services Inc. (“NC Tractor”), one of the Respondents in this matter. NC Tractor was owned by Arthur Currie, who is also a Respondent. Shona Abbey, the third Respondent, was an employee of NC Tractor for the entirety of Mr. Bilac’s employment there. Prior to Mr. Currie starting NC Tractor, Mr. Bilac, Mr. Currie and Ms. Abbey were all employees of another trucking company called Edenbank Trading Co Ltd. (“Edenbank”) which operated out of the same location as NC Tractor. They had all worked together since June of 2017, when Mr. Bilac was hired as a truck driver by Edenbank.
[3] Mr. Bilac alleges that the Respondents harassed him on the basis of his gender identity or expression and failed to provide a harassment-free work environment, contrary to section 14 of the Canadian Human Rights Act, RSC 1985, c.H-6 [CHRA]. Specifically, he says that Mr. Currie and Ms. Abbey repeatedly referred to him by his deadname (“deadnamed” him) and that they misgendered him by using feminine pronouns. He also says that both Mr. Currie and Ms. Abbey asked him invasive questions about being transgender, including questions of a sexual nature, and that Mr. Currie harassed him by way of sexual comments, gestures and touching.
[4] Mr. Bilac says that the discriminatory harassment eventually led him to resign from his employment with NC Tractor in November of 2018.
[5] While Mr. Currie denies that he engaged in some of the alleged behaviours, and Ms. Abbey does not recall several of the incidents Mr. Bilac testified about, both acknowledge that they repeatedly deadnamed and misgendered Mr. Bilac during the period they worked together.
II. Decision
[6] I find that Mr. Bilac was harassed in the workplace on the basis of his gender identity or expression by being repeatedly misgendered and deadnamed by Mr. Currie and Ms. Abbey, both at Edenbank and at NC Tractor, contrary to section 14(1)(c) of the CHRA. I also find that Mr. Currie engaged in additional acts of discriminatory harassment against Mr. Bilac on the basis of his gender identity or expression, by making comments and asking questions that communicated Mr. Currie’s belief that Mr. Bilac was not really a man.
[7] I also find that NC Tractor failed to meet the conditions set out in section 65(2) of the CHRA to avoid liability for the discriminatory harassment engaged in by Mr. Currie and Ms. Abbey, who deadnamed and misgendered Mr. Bilac for the approximately three months he worked for NC Tractor.
[8] As his complaint is substantiated, I have decided that Mr. Bilac is entitled to damages for pain and suffering from each of the three Respondents, as well as special compensation from Mr. Currie and NC Tractor for discrimination that was engaged in recklessly.
III. Preliminary Matter: Scope of the Complaint
[9] In September of 2020, the Canadian Human Rights Commission (“Commission”) asked the Tribunal to inquire into three separate complaints made by Mr. Bilac against NC Tractor, Mr. Currie and Ms. Abbey. The Tribunal agreed to join these three complaints so that they could be heard together (2021 CHRT 4 (CanLII)).
[10] The complaints referred to the Tribunal by the Commission indicate that Mr. Bilac had complained of harassment on the basis of his “gender identity or expression” and his “sexual orientation”, both of which are prohibited grounds of discrimination under section 3 of the CHRA. He did not check off “sex” on the Commission’s complaint forms. Although he alleges in his complaints that he was sexually harassed in the workplace, the Commission did not refer the complaint on the basis of the prohibited ground of sex. The Commission addressed this in its Statement of Particulars (“SOP”), filed during case management prior to the hearing. The Commission stated that, once it had received the other parties’ SOPs, it might file a Motion to add sex as a ground of discrimination. The Commission did not file such a Motion.
[11] In his own SOP, Mr. Bilac stated his agreement with the characterization of the legal issues as set out in the Commission’s SOP. He did not file a Motion to add sexual harassment as a discriminatory practice either.
[12] At the hearing, Mr. Bilac testified about certain workplace incidents that he had characterized as sexual harassment in his complaint form and SOP. These include allegations that Mr. Currie touched Mr. Bilac inappropriately and asked questions of a sexual and personal nature, including about Mr. Bilac’s body.
[13] Both the Commission and Mr. Bilac say in their closing submissions that, if the Tribunal finds that these alleged incidents occurred, it should make a finding that Mr. Bilac was sexually harassed under section 14(2) of the CHRA. Neither mentions the reference in the Commission’s SOP to potentially filing a Motion to add sex as a prohibited ground of discrimination or sexual harassment as a discriminatory practice.
[14] The Tribunal’s jurisdiction to inquire into these complaints comes from the Commission’s referral pursuant to section 44(3)(a) of the CHRA (R.L. v Canadian National Railway Co., 2021 CHRT 33 (CanLII) [R.L. v CNR] at para 20). In the present case, the Commission referred a complaint of harassment under section 14 to the Tribunal on the grounds of gender identity or expression and sexual orientation. It did not refer a complaint of sexual harassment pursuant to section 14(2), nor did it file a Motion to add this discriminatory practice despite raising the possibility of doing so.
[15] It would be procedurally unfair to the Respondents, who are both self-represented, for the Tribunal to consider an additional discriminatory practice that has been raised by the Complainant and Commission in their closing submissions. As the Federal Court of Appeal in Canadian Pacific Railway Company v Canada (Attorney General), 2018 FCA 69 (CanLII) stated, whether a party was given “a right to be heard and the opportunity to know the case against them” is a question that is “fundamental to the concept of justice” (at para 56). As such, I decline to add the additional prohibited ground of sex or the additional discriminatory practice of sexual harassment to the scope of the complaint before the Tribunal.
[16] This does not mean, however, that the Tribunal has not considered the allegations made by Mr. Bilac relating to the behaviours that he has characterized as sexual harassment. As I stated, these behaviours were described by Mr. Bilac in his 2019 human rights complaint filed with the Commission. In its Record of Decision, the Commission requested that the Chairperson of the Tribunal “institute an inquiry into the allegations raised in these complaints.”
[17] I note that, in his closing submissions, Mr. Bilac submits that the misgendering and deadnaming and the unwelcome questions and comments about his body and his sex life arose because he is transgender. He says that the allegations he characterizes as sexual harassment occurred because Mr. Currie did not see Mr. Bilac as a man. He argues that the complained of conduct is related to his status as a transgender man. I agree and, while I decline to make a finding of sexual harassment based on the evidence presented at the hearing, I have considered whether the conduct that he has described as sexual harassment constituted discriminatory harassment on the basis of his gender identity or expression.
[18] With regard to the prohibited ground of sexual orientation, Mr. Bilac states in his closing submissions that the allegation of discrimination on this basis relates to certain questions that Mr. Currie and Ms. Abbey asked him about his sex life. He submits that, given the overlap between the grounds of discrimination (sexual orientation and gender identity or expression), and the fact that Mr. Bilac was viewed by the Respondents as a woman and asked about sexual practices between women, it is open to the Tribunal to find a violation based on both grounds. Mr. Bilac submits, however, that a finding based on gender identity would be most appropriate. I agree and will therefore not consider whether he was discriminated against on the basis of his sexual orientation.
IV. Issues
[19] The issues for the Tribunal to decide are:
Has Mr. Bilac established that he was harassed on the basis of his gender identity or expression by Mr. Currie and/or Ms. Abbey during his employment, contrary to section 14(1)(c) of the CHRA? If I decide that Mr. Bilac experienced harassment on the basis of his gender identity or expression, is NC Tractor liable for the discriminatory conduct of Mr. Currie and/or Ms. Abbey pursuant to section 65 of the CHRA? If the complaint has been established and NC Tractor is unable to rebut the presumption of liability pursuant to section 65(2) of the CHRA, what remedies should be ordered against Mr. Currie, Ms. Abbey and NC Tractor that flow from the discrimination?
V. Analysis
A. Issue 1: Mr. Bilac has established that he was harassed on the basis of his gender identity or expression during his employment
(i) Legal Framework [20] Section 14(1)(c) of the CHRA states that it is a discriminatory practice to harass an individual on a prohibited ground of discrimination in matters related to employment. Gender identity or expression is a prohibited ground of discrimination as set out in section 3 of the CHRA.
[21] Gender identity refers to how a person internally and individually experiences gender, and gender expression refers to how a person publicly presents their gender. Trans individuals such as Mr. Bilac have a gender identity which differs from the sex they were assigned at birth.
[22] In order to establish a prima facie case of discriminatory harassment contrary to section 14(1)(c) of the CHRA, Mr. Bilac must establish that the behaviours or conduct he has complained about were:
related to a prohibited ground of discrimination;
unsolicited or unwelcome; and
persistent or serious enough to create a hostile or negative work environment that undermined Mr. Bilac’s dignity (R.L. v CNR at para 95; Nielsen v Nee Tahi Buhn Indian Band, 2019 CHRT 50 (CanLII) at paras 116-117).
[23] A prima facie case of discrimination is “…one which covers the allegations made and which, if they are believed, is complete and sufficient to justify a verdict in the complainant’s favour in the absence of an answer from the respondent-employer” (Ontario Human Rights Commission and O’Malley v Simpsons-Sears, 1985 CanLII 18 (SCC) at para 28).
[24] A protected characteristic need only be a contributing factor, not the sole factor, in the adverse treatment (Holden v Canadian National Railway, 1990 CanLII 12529 (FCA) at para 8). A causal connection is not required, nor is proof of intention to discriminate (Quebec (Commission des droits de la personne et des droits de la jeunesse) v Bombardier Inc. (Bombardier Aerospace Training Center), 2015 SCC 39 (CanLII) at paras 56, 40).
[25] Mr. Bilac must prove on a balance of probabilities that he was harassed, meaning he must show that it is more likely than not that the harassment occurred. The evidence must be “sufficiently clear, convincing and cogent” to satisfy the balance of probabilities test (F. H. v McDougall, 2008 SCC 53 (CanLII) [F.H. v McDougall] at para 46).
[26] In determining whether discrimination occurred, the Tribunal must consider the evidence of all parties. Where respondents present evidence in an effort to refute an allegation of prima facie discrimination, their explanation for the impugned conduct must be reasonable, it cannot be a “pretext” - or an excuse - to conceal discrimination (Moffat v Davey Cartage Co.(1973) Ltd., 2015 CHRT 5 (CanLII) at para 38).
[27] If a complainant is able to meet the burden of proof and establishes prima facie discrimination, respondents may put forward a defence justifying the discrimination under section 15 of the CHRA or they may argue that their liability is limited pursuant to section 65(2) of the CHRA.
Evidence [28] The evidence presented at the hearing may be separated into two categories: uncontested and contested evidence of harassment. I will consider each category separately to determine whether Mr. Bilac experienced discriminatory harassment during his employment.
(ii) Uncontested evidence (a) Findings of Fact [29] The Tribunal heard that Mr. Bilac has presented as a man for more than twenty years and has used the chosen name Denny for about 15 years and masculine pronouns since the 1990s. However, he has not legally changed his name, so his driver’s licence and banking and tax information identify him by his deadname.
[30] In June of 2017 Mr. Bilac posted his resumé online and was hired by Edenbank as a truck driver. He moved from Vancouver to Chilliwack for the job, where he met Mr. Currie and Ms. Abbey. He worked for Edenbank from June of 2017 until he started with NC Tractor around the end of August of 2018.
[31] Ms. Abbey worked as a dispatcher and office administrator at both Edenbank and NC Tractor. Mr. Currie was a mechanic and floor manager at Edenbank. He worked there for 7 years. After Edenbank’s owner died, Mr. Currie wanted to continue the business, so he purchased some trucks and started NC Tractor, which was incorporated on August 30, 2018. Mr. Currie is the sole owner of this business.
[32] NC Tractor rented out part of the building where Edenbank had operated and hired several former Edenbank employees, including Ms. Abbey and Mr. Bilac. It also purchased several of Edenbank’s trucks and entered into contracts with approximately one-third of Edenbank’s former customers. The business was active from August of 2018 until August or September of 2019. Although NC Tractor had ceased operations and payroll activities by the end of 2019, as of the hearing dates it had not been formally wound up.
[33] In addition to dispatching for NC Tractor, Ms. Abbey did some additional tasks like data entry and paperwork and she was the Safety Officer. She worked there until August of 2019.
[34] Mr. Bilac worked as a truck driver for NC Tractor until November of 2018. He testified, and the Respondents agreed, that shortly after he began working with Mr. Currie and Ms. Abbey at Edenbank, he told them that, although his deadname was still his legal name and it appeared on his driver’s licence, he uses the name Denny and masculine pronouns and asked them to do the same. He repeated this request many times while working for both Edenbank and NC Tractor.
[35] Mr. Bilac testified that Mr. Currie only called him Denny on his last day of work and that he did not recall Ms. Abbey ever calling him Denny. During his cross-examination by Ms. Abbey, Mr. Bilac accepted that Ms. Abbey had apologized to him for using his deadname and said she would make every effort to use Denny instead.
[36] Both Respondents acknowledged that they misgendered and deadnamed Mr. Bilac even after being corrected. Ms. Abbey agreed that both she and Mr. Currie used feminine pronouns and Mr. Bilac’s deadname to refer to him in conversations with him, with each other, with other drivers, and with other people generally, including Mr. Bilac’s friends, Dr. Nicholson and Ms. Thomson, when they visited him at the workplace. Both Dr. Nicholson and Ms. Thomson were witnesses who testified at the hearing that they heard the Respondents deadname and misgender Mr. Bilac.
[37] Ms. Abbey said she was confused by Mr. Bilac’s request to use the name Denny and had difficulty using this name because she was used to seeing his deadname in the logbooks and other paperwork she handled. She recognized that she did not go far enough in her efforts to correct herself and she apologized to Mr. Bilac during the hearing. In her closing submissions, Ms. Abbey says, “I acknowledge that I failed in my responsibility to respect the human rights of Mr. Bilac.”
[38] Mr. Currie testified that Mr. Bilac had asked him to call him Denny but that he refuses to call anyone by a name other than their legal name in the workplace because doing so would be unprofessional and illegal. He emphasized that Mr. Bilac had applied for the job using his deadname. Mr. Currie testified that he believes he has a legal obligation to use the name that appears on an employee’s government-issued documents in the workplace, despite the fact that several people in the workplace, including him, used shortened versions of their legal names or nicknames on a regular basis.
[39] Mr. Currie also said that using masculine pronouns and the Complainant’s chosen name would cause problems when dealing with certain businesses the trucking company dealt with such as railways and ports. He believed that using Mr. Bilac’s chosen name at work would be fraudulent. During his testimony he apologized for upsetting Mr. Bilac but held to his belief that he did not have to use his chosen name in the workplace.
[40] During the course of the hearing both Ms. Abbey and Mr. Currie misgendered Mr. Bilac - Mr. Currie more frequently than Ms. Abbey - even after being corrected by Mr. Bilac’s counsel and the Tribunal.
[41] In addition to the misgendering and deadnaming, Mr. Bilac also testified that Ms. Abbey asked which washroom he uses even though there was only one washroom in the workplace. Ms. Abbey testified during the hearing that she did ask this question and she recognized the question was in bad taste, but that she only asked because Mr. Bilac was so willing to share and educate them about being transgender.
(b) Applying the law to the facts as I have found them
The conduct was related to a prohibited ground of discrimination
[42] I agree with Mr. Bilac’s position that the conduct complained of is related to his status as a trans man. Referring to Mr. Bilac using feminine pronouns and by his deadname which, as he testified, is distinctly a woman’s name, are clear examples of misgendering. Misgendering is intrinsically linked to Mr. Bilac’s gender identity or expression.
[43] As the British Columbia Human Rights Tribunal (“BCHRT”) has stated, transgender employees “are entitled to recognition of, and respect for, their gender identity and expression. This begins with using their names and pronouns correctly. This is not an ‘accommodation’, it is a basic obligation that every person holds towards people in their employment” (Nelson v Goodberry Restaurant Group Ltd. dba Buono Osteria and others, 2021 BCHRT 137 (CanLII) [Nelson v Goodberry] at para 80 citing BC Human Rights Tribunal v Schrenk, 2017 SCC 62 (CanLII) [Schrenk]).
[44] I agree with the BCHRT that, “like a name, pronouns are a fundamental part of a person’s identity. They are a primary way that people identify each other. Using correct pronouns communicates that we see and respect a person for who they are. Especially for trans, non-binary, or other non-cisgender people, using the correct pronouns validates and affirms they are a person equally deserving of respect and dignity” (Nelson v Goodberry at para 82).
[45] I further agree with Mr. Bilac that asking him about which washroom he uses only arose because he is transgender and the Respondents thought it was acceptable to ask him personal questions about his body.
The conduct was unsolicited or unwelcome
[46] Mr. Bilac repeatedly asked Mr. Currie and Ms. Abbey to stop using his deadname and to use his chosen pronouns and they did not do so. I accept that the repeated misgendering was both unsolicited and unwelcome.
[47] Mr. Bilac says the question about which washroom he uses was also unwelcome. Ms. Abbey testified that she did ask him this question because she did not know and she thought Mr. Bilac was receptive to having this conversation. In his closing submissions Mr. Bilac says, in relation to this question and others that related to him being transgender, that he “made a good faith effort to try to educate his employers about transgender issues but eventually came to experience these questions as unwelcome and felt that the Respondents were ganging up on him.”
[48] Mr. Bilac testified that, while the deadnaming and misgendering persisted throughout his employment with both Edenbank and NC Tractor, he did not know if the question about which washroom he uses happened while he was working for Edenbank or for NC Tractor.
[49] All parties agreed there was only one washroom at the workplace (which remained the same for Edenbank and NC Tractor), so a conversation about which washroom he uses was not relevant to the workplace. I accept that the question was unsolicited. Such a personal question is not appropriate to ask of a transgender or non-binary person unless it is necessary to do so for a legitimate work-related purpose. Mere curiosity would not qualify as a reason to ask such a personal question of a coworker or employee.
The conduct was persistent or serious enough to create a hostile or negative work environment that undermined Mr. Bilac’s dignity
[50] There is no question that the deadnaming and misgendering persisted throughout Mr. Bilac’s employment with Mr. Currie and Ms. Abbey, both at Edenbank and at NC Tractor up until he quit. There is also no question that this conduct was serious enough to create a negative work environment that undermined Mr. Bilac’s dignity.
[51] Mr. Bilac says he told the Respondents about the potential dangers of being outed as a trans person in a small town. He said the misgendering alienated him and made him feel unsafe. This sentiment was affirmed in Nelson v Goodberry, where the BCHRT noted that, especially for trans or non-binary people, pronouns are fundamental to feeling like they exist and, when people do not use the right pronouns, their safety is undermined (at para 82).
[52] The Commission referred the Tribunal to a source that describes misgendering as a “critical stressor that is experienced as humiliating, stigmatizing, psychologically distressing, and dehumanizing” (Chan Tov McNamarah, Misgendering as Misconduct, (2020) 68 UCLA L. Rev Discourse 40-71 as cited in Amy Salyzyn & Samuel Singer, “Challenging ‘Compelled Speech’ Objections: Respectful Forms of Address in Canadian Courts” (14 December 2021)).
[53] With respect to Ms. Abbey’s question about which washroom Mr. Bilac uses, while this question by itself may not have constituted discriminatory harassment, I do accept that such a question of a personal nature could certainly add to the negative work environment for Mr. Bilac in conjunction with the persistent misgendering and deadnaming. The question was not asked in relation to the workplace, and it clearly related to Mr. Bilac’s gender identity and expression.
(c) Respondents’ explanation for the discriminatory behaviour [54] Ms. Abbey testified that she was confused by Mr. Bilac’s request to call him Denny because she was used to seeing his deadname in the logbooks and other paperwork. Mr. Currie says in his closing submissions that he did not intentionally try to embarrass Mr. Bilac or hurt his feelings by calling him by his deadname. Rather, he believed that he was legally required to use his deadname during his employment as this was the name on Mr. Bilac’s driver’s licence and other government documents.
[55] It is unclear what law Mr. Currie relied on in persisting to call Mr. Bilac by his deadname in the workplace. He did not refer the Tribunal to any such law and I am unaware of any that would require an employer to do so. Human rights legislation across Canada, including the CHRA, requires employers to respect the dignity of their employees by not discriminating against them on the basis of their gender identity or expression.
[56] The CHRA is quasi-constitutional legislation, enacted to give effect to the fundamental value of substantive equality. Its purpose is to ensure that individuals have an equal opportunity to make for themselves the lives that they are able and wish to have, consistent with their duties and obligations as members of society, without being hindered by discriminatory practices based on prohibited grounds of discrimination (s.2). Misgendering and deadnaming an employee who has specifically and repeatedly asked to have their gender identity respected is a discriminatory practice that is contrary to the CHRA.
[57] The issue of whether Ms. Abbey or Mr. Currie intentionally tried to embarrass Mr. Bilac or hurt his feelings is also not relevant in determining whether discrimination occurred. Human rights legislation is concerned not with a Respondent’s intentions, but with the impact of the discriminatory conduct or behaviour (Schrenk, supra at para 88 (per Abella J, concurring)). However, as the BCHRT has stated:
A person’s intention can go a long way towards mitigating or exacerbating the harm caused by misgendering. Where a person is genuinely trying their best, and acknowledges and corrects their mistakes, the harm will be reduced. … On the other hand, where a person is callous or careless about pronouns or – worse – deliberately misgenders a person, the harm will be magnified (Nelson v Goodberry, supra at para 84).
[58] As the BCHRT in Nelson v Goodberry stated, “for many people the concept of gender-neutral pronouns is a new one. They are working to undo the ‘habits of a lifetime’ and, despite best intentions, will make mistakes. Unfortunately, this learning is done at the expense of trans and non-binary people, who continue to endure the harm of being misgendered” (at para 83).
[59] In the case of Mr. Bilac’s employment with NC Tractor, I cannot conclude that either Mr. Currie or Ms. Abbey made much, if any, effort to respect Mr. Bilac’s request to be called Denny and to use masculine pronouns when referring to him.
(d) Conclusion with respect to the uncontested evidence [60] I agree that Ms. Abbey and Mr. Currie harassed Mr. Bilac on the basis of his gender identity or expression contrary to section 14(1)(c) of the CHRA, by repeatedly misgendering and deadnaming him. Ms. Abbey’s unwelcome question about which washroom he uses added to the impact of the discriminatory harassment he experienced.
(iii) Contested evidence [61] In addition to the misgendering and deadnaming that occurred in the workplace, and asking which washroom he uses, Mr. Bilac alleges behaviour mainly by Mr. Currie that made the workplace even more uncomfortable for him as a trans man. Specifically he testified that Mr. Currie: grabbed his buttocks over his clothing one time; asked him if he had hair on his buttocks; bragged about how his penis felt during intercourse; chased Mr. Bilac out of the shop; “farted” on his shoulder and rubbed his buttocks against Mr. Bilac’s shoulder while Mr. Bilac was sitting in a chair; exposed his buttocks to Mr. Bilac; rubbed his crotch against the back of Mr. Bilac’s body while he was reaching to plug in a cell phone charger; pretended to “hump” another driver in front of Mr. Bilac; told him his Mormon religion does not allow for transsexuality; threatened to rub grease on his body and face; and told him to expose his breast to another driver. Mr. Bilac says he experienced these encounters as sexual and unwelcome.
[62] In addition to this alleged behaviour by Mr. Currie, Mr. Bilac says that Ms. Abbey asked him who he has sex with and that Mr. Currie asked him about how two women have sex.
(a) These allegations were “related to employment” pursuant to section 14(1)(c) of the CHRA [63] It is uncontested that Mr. Bilac was living at the worksite during his employment with Edenbank. He was permitted to live on the property first in a camper and then in a motorhome that he was purchasing from the son of Edenbank’s owner. Mr. Bilac did not pay rent to live on the property. He did not have a working washroom in his motorhome so he used the one in the shop and also got his water from the shop. He was given a key and the security code to the shop so he could use the facilities and the microwave after hours. He also ran an extension cord from the shop to the motorhome for electricity, which sometimes tripped the breaker and cut the power to Ms. Abbey’s computer.
[64] Mr. Currie said that, after Edenbank’s owner died and he started NC Tractor, he was “stuck” with Mr. Bilac living on the property and not paying rent. Mr. Currie testified that he tried to get Mr. Bilac to move to a campground where he would have access to water, sewage and electricity, but that Mr. Bilac told him he could not afford to live in a campground.
[65] As Mr. Bilac was living on the property, he would often come into the shop to visit with Ms. Abbey and Mr. Currie, who would often be working late into the evening.
[66] Ms. Abbey testified that, as Mr. Bilac was a truck driver for both Edenbank and NC Tractor, he was only working when he was out driving a truck. He was not working when he was in the shop visiting with others, even if they were working.
[67] I accept that none of the alleged discriminatory behaviour happened while Mr. Bilac was driving a truck, either for Edenbank or NC Tractor, with the exception of the misgendering and deadnaming, as well as an incident with another driver named Bill, which I will discuss later. The alleged unwelcome conversations and conduct happened when Mr. Bilac was in the shop visiting with Mr. Currie and Ms. Abbey.
[68] Mr. Bilac was not the only employee who stopped by the shop to visit, but he would have been around more frequently because he lived on the property. Ms. Abbey described the work environment as not “strictly professional”, meaning there was overlap between the personal and professional. She testified that they were like a family, and it was a place where people supported one another even outside of work. She said that drivers who had been working alone for 13 hours would often talk to her for a while afterwards and they would share things about themselves.
[69] Mr. Currie’s witness Mr. Burns also testified that the atmosphere in the shop was more like a family than a workplace, saying there was often laughter and joking and food to share.
[70] Clearly for Mr. Bilac, the workplace became part of his social life, as he even brought his friends into the shop to visit with Ms. Abbey and Mr. Currie when they came to see him. Both Ms. Abbey and Mr. Currie testified that they considered Mr. Bilac to be a friend.
[71] Section 14 of the CHRA does not require that someone actually be working in order to be afforded protection from discrimination. Rather, section 14(1)(c) states that it is a discriminatory practice “in matters related to employment” to harass an individual on a prohibited ground of discrimination. The Tribunal in Nielsen v Nee Tahi Buhn Indian Band, supra stated that “the important element is … the existence of a sufficient connection with the employment context” (at paras 118-119, citing Duverger v 2553-4330 Québec Inc. (Aéropro), 2019 CHRT 18 (CanLII) at paras 108-158, and Schrenk, supra at paras 37, 38 and 40).
[72] Mr. Bilac was living on the property of Edenbank and NC Tractor while he was working there and relying on certain amenities in the shop. The conversations he had with Ms. Abbey and Mr. Currie in the workplace occurred when they were working, even if he was not. I accept that they were “related to employment” for the purposes of the CHRA.
(b) Determining which allegations relate to Mr. Bilac’s gender identity or expression [73] As indicated, this group of allegations is largely contested. The evidence from the Respondents conflicts with Mr. Bilac’s evidence or that of his witness Dr. Nicholson. As Mr. Bilac has characterized these incidents or comments as being discriminatory, the Tribunal must weigh the oral testimony of all witnesses and assess the reliability and credibility of each witness and make findings of fact based on these assessments. In doing so, I have considered Faryna v Chorny, 1951 CanLII 252 (BC CA), in which Mr. Justice O'Halloran stated at p. 357:
The credibility of interested witnesses, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether the personal demeanour of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions.
[74] Mr. Bilac has made a number of allegations about behaviours he found to be unwelcome that are disputed by the Respondents. In order to be more efficient, before I go through the process of determining whose evidence I believe with regard to each allegation, I will first consider which allegations could actually constitute harassment on the basis of Mr. Bilac’s gender identity or expression. I have already determined that this is the only ground of discrimination that I am considering in this decision. Determining that that the allegation is related to a prohibited ground of discrimination is the first part of the 3-part test for discriminatory harassment.
[75] Solely for the purpose of conducting this assessment, I will accept that the incidents happened as described by Mr. Bilac, without considering the Respondents’ positions. This does not mean, however, that I am making a finding that they actually did occur as Mr. Bilac has described. If I do not find a particular allegation to be related to Mr. Bilac’s gender identity or expression, it will not be considered any further in this decision, as it is irrelevant to the determination I must make.
[76] I accept that the allegations that Mr. Currie grabbed Mr. Bilac’s buttocks over his clothing and rubbed his crotch against the back of Mr. Bilac’s body could relate to Mr. Bilac’s gender identity or expression. Similarly, I accept that the following comments made or questions asked by Mr. Currie could relate to Mr. Bilac’s gender identity or expression: asking Mr. Bilac if he had hair on his buttocks; bragging about how his penis felt during intercourse; telling Mr. Bilac his Mormon religion does not allow for transsexuality; telling Mr. Bilac to expose his breast to another driver; and asking him who he has sex with and about how two women have sex. These comments and actions either relate directly to Mr. Bilac’s gender identity (the comment about transsexuality) or to Mr. Bilac’s body, which concords with Mr. Currie’s view that Mr. Bilac is not a man. Mr. Currie’s own evidence at the hearing confirmed that he held this view. When asked by Mr. Bilac’s counsel “do you think Denny Bilac is a woman?” Mr. Currie stated, “I really don’t care.” He said that, when they first met, Mr. Bilac did not look like he did during the hearing, implying he did not present as being male. He persisted in calling Mr. Bilac “she” and using his deadname throughout the hearing.
[77] I do not consider the following allegations against Mr. Currie to relate to Mr. Bilac’s gender identity or expression: chasing Mr. Bilac out of the shop, “farting” on him and rubbing his bum against his shoulder, exposing his buttocks to Mr. Bilac, pretending to hump another employee behind his back, and threatening to rub grease on Mr. Bilac.
[78] Ms. Abbey and Mr. Currie both described the workplace as being somewhat “rough”, that there were jokes and swearing and sometimes roughhousing. These particular in