City of Nanaimo's attempt to quash a B.C. Human Rights Tribunal ruling favouring a former executive, has been denied in B.C. Supreme Court.
Victor Mema, who served as city chief financial officer from 2016-18, was awarded $650,000 from the tribunal in 2023 for a discrimination claim after he was fired – the city had deemed he improperly used his corporate credit card.
According to Emily Ohler's 2023 decision, a serious misconduct complaint against Mema, a man of African descent, and subsequent termination was influenced by the colour of his skin. The decision to terminate Mema's employment was based largely on a misconduct complaint, but it was "was inflected with racial bias and stereotype – likely unconscious – which ran through each of the key points of the report."
The city filed a petition for judicial review and among assertions, the tribunal erred when it found that Mema's race was an element in the misconduct complaint. Among the tribunal's findings, city staff's implying Mema was involved in reprimanding other staff for reporting his spending "had no factual basis" and that he was not involved. In addition, "these implications imbued Mr. Mema’s conduct with 'something more nefarious' harkening the negative stereotypes of black men."
Justice Michael G. Thomas ruled that "the tribunal’s findings were solidly grounded in the facts and flowed rationally and logically from these findings." Further the tribunal's findings did not fall outside sufficient scope "of appropriate factual findings and inferences."
The city said the tribunal erred in its reliance on circumstantial and opinion evidence in its ruling "on the central issue of drawing inference of discrimination in the absence of direct evidence." Again, Thomas disagreed, stating that the tribunal is afforded the ability to "receive and accept" information and testimony it sees as germane. Further, the city did not oppose when the evidence was presented in the hearing and has not stated its effect on the tribunal's decision.
"The city’s position would also contradict the well-established principles of human rights law that … discrimination rarely occurs through open and direct expression of bias, prejudice, or hatred against a group of people. Human rights tribunals must often infer and tease out discriminatory conduct through circumstantial evidence and viewing the matter holistically through a broader understanding of discrimination and how they insidiously occur in our society," ruled Thomas.
He said the issues were "fatal" to the city's case.
In an e-mail, John Van Horne, city director of human resources, said the the B.C. Supreme Court decision has been received and it is being reviewed.
The hearing took place in B.C. Supreme Court in Vancouver in April and the decision came down Monday, June 2.
In July 2023, a wrongful dismissal claim from Mema against the city was denied by a B.C. Supreme Court justice, who ruled it was filed after a "six-month limitation period."
