[1]               Fern Harris describes herself as Nisgaa, a First Nations female, and a visible minority. On December 9, 2020, she sought a loan at a Speedy Cash Payday Advances [Speedy Cash] store. Based on her experience at the store, she filed a complaint against Speedy Cash. She alleges that a Speedy Cash Customer Sales Representative [CSR] discriminated against her based on her race, ancestry, and sex in violation of s. 8 of the Human Rights Code [Code].

[2]               Speedy Cash filed an application to dismiss Ms. Harris’ complaint on the basis that it has no reasonable prospect of success under s. 27(1)(c) of the Code and therefore would not further the purposes of the Code. Speedy Cash says that Ms. Harris has no reasonable prospect of proving that she was adversely impacted by the CSR’s conduct, or that her race, ancestry, and sex were factors in the CSR’s conduct.

[3]               Ms. Harris did not respond to the dismissal application, but I am satisfied that she had notice of the application and a full and fair opportunity to respond to it.

[4]               I need to decide whether Ms. Harris has no reasonable prospect of proving that the CSR’s conduct had an adverse impact on her and that her race, ancestry, and sex were factors in the CSR’s conduct.

[5]               For the following reasons, I deny Speedy Cash’s dismissal application. 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.

[6]               I apologize to the parties for the delay in issuing this decision.

[7]               The following background facts are taken from the materials filed by the parties.

[8]               Ms. Harris visited the Speedy Cash store, in Terrace, BC., on December 9, 2020 around 6:40pm to obtain a loan. The store closed at 7:00pm. Ms. Harris was a returning customer – she had previously obtained loans through Speedy Cash. She lives approximately 100km from the store.

[9]               At the store, Ms. Harris was served by a Speedy Cash CSR, who I will refer to as CP. I have not identified CP, at this early stage in Tribunal process, as he is not a party to the complaint. If the complaint proceeds to a hearing, it will be open to the parties to make submissions about whether CP should be identified.

[10]           At the time, CP had been working at Speedy Cash for just over a month. In the few hours before the store closed, CP was working alone.

[11]           Ms. Harris alleges that the issue with CP’s service arose when CP called her over to his service window. She approached the service window, wearing what she describes as a Native / First Nations sweater with her child’s name and school logo on it. She described what happened next as follows:

[12]           Ms. Harris left without a loan. She described the impact of CP’s conduct:

[13]           CP has a different recollection of his interaction with Ms. Harris. CP describes the interaction as follows:

[14]           Ms. Harris made a direct complaint to Speedy Cash [the direct complaint]. The direct complaint took the form of two emails to Speedy Cash on or about December 9, 2020, and an online comment to Speedy Cash’s “Live Chat” function on or about December 10, 2020.[1] In the emails, Ms. Harris states:

[15]           In the online comment, Ms. Harris states:

[16]           Speedy Cash’s store manager at the Terrace Branch, TD, says that she tried to call Ms. Harris in response to the emails and online form, but was unable to connect with Ms. Harris. TD says that she left a voicemail for Ms. Harris, but that Ms. Harris did not respond to the voicemail: TD affidavit at para. 5. It does not appear that TD tried to email Ms. Harris in response to her direct complaint.

[17]           Speedy Cash argues that the Tribunal should dismiss Ms. Harris’ complaint because she has no reasonable prospect of proving that CP’s conduct adversely impacted her or that her race, ancestry, or sex played any role in CP’s conduct at the Terrace branch: Code, s. 27(1)(c). Speedy Cash also argues that if Ms. Harris’ complaint has no reasonable prospect of success, it cannot further the purposes of the Code for it to proceed: Code, s. 27(1)(d)(ii).

[18]           I address Speedy Cash’s arguments next.

[19]           Section 27(1)(c) is part of the Tribunal’s gate-keeping function. To exercise this gate-keeping function, the Tribunal does not make findings of fact, as it would at a hearing. Rather  the Tribunal considers whether there is no reasonable prospect that a complaint could be proven, after a full hearing of the evidence: Berezoutskaia v. British Columbia (Human Rights Tribunal), 2006 BCCA 95 at para. 22; Lord v Fraser Health Authority, 2021 BCSC 2176 at para. 19.

[20]           If there is no reasonable prospect of a complaint succeeding after a full hearing of the evidence, then it serves no purpose to proceed with the time and expense of a hearing: Workers’ Compensation Appeal Tribunal v. Hill, 2011 BCCA 49 at para. 27.

[21]           Where there are significant differences in the versions of events put forward by parties on issues that are central to a determination of a complaint, a hearing will generally be necessary to fully explore and test the conflicting evidence: Francescutti v. Vancouver (City), 2017 BCCA 242 [Francescutti] at para. 67; Sarba v. Ruskin Construction Ltd. and others, 2022 BCHRT 35 [Sarba] at para. 45; Smallboy v. Grafton Apparel, 2021 BCHRT 15 [Smallboy] at para. 30.

[22]           To prove her complaint at a hearing, Ms. Harris will have to show that she was adversely impacted by CP’s conduct and that her race, ancestry or sex were factors in that adverse impact: Moore v. BC (Education), 2012 SCC 61 at para. 33.

[23]           There is no dispute that Ms. Harris is protected from discrimination based on her race, ancestry, and sex – which together encompass her identity as Nisgaa, a First Nations female, and a visible minority.

[24]           Speedy Cash first argues that Ms. Harris was not adversely impacted by CP’s conduct in providing services. Instead, Speedy Cash says, that any adverse impact on Ms. Harris was a result of her own actions, namely, not providing CP with the information needed to complete the loan and leaving frustrated instead. I cannot accept this argument because Ms. Harris alleges the following adverse impacts:

[25]           On their face, these are allegations of adverse impacts. Adverse impacts may encompass not only a denial of service, but the manner in which the services are provided: Code, s. 8(1)(b). The Tribunal has recognized that excess scrutiny, rudeness, or harshness in the provision of service can amount to adverse impacts: Zhou v. C-Lovers Fish & Chips, 2023 BCHRT 149 at para. 17; Campbell v. Vancouver Police Board (No. 4), 2019 BCHRT 275 [Campbell] at para. 95; Radek v. Henderson Development (Canada) and Securiguard Services (No. 3), 2005 BCHRT 302 [Radek] at para. 469-471.

[26]           If Ms. Harris is able to prove her version of events, then she will have a reasonable prospect of proving that CP’s conduct had an adverse impact on her. Ms. Harris and CP have given conflicting versions of events, and this issue is central to a determination of whether Ms. Harris experienced discrimination. I cannot summarily dismiss Ms. Harris’ complaint in this context. A hearing will be necessary to fully explore and test the conflicting evidence, allowing the Tribunal to make findings of fact on this key issue: Francescutti at para. 67; Sarba at para. 45; Smallboy at para. 30.

[27]           Speedy Cash also argues that Ms. Harris has no reasonable prosect of proving that her race, ancestry or sex played any role in how she was treated. Speedy Cash acknowledges that direct evidence of race-based discrimination is often not available, and that the Tribunal may infer discrimination from the conduct at issue: Mezghrani v. Canada Youth Orange Network (CYONI) (No. 2), 2006 BCHRT 60 at para. 28. However, Speedy Cash says that in this case, there is no evidence capable of substantiating Ms. Harris’ complaint that her race, ancestry or sex factored into CP’s treatment of her. I disagree because Ms. Harris’ direct evidence at a hearing is capable of substantiating her complaint.

[28]           This is another instance where Ms. Harris and CP have given conflicting versions of events. Whether or not Ms. Harris’ race, ancestry or sex factored into CP’s treatment of her is a critical issue that requires the Tribunal to make findings of fact: Smallboy at para. 29. Depending on the Tribunal’s findings, it would be open to the Tribunal to infer that Ms. Harris’ race, ancestry or sex factored into CP’s treatment from the following:

[29]           If the Tribunal accepts Ms. Harris’ version of events at a hearing, it could find a connection between what happened and her race, ancestry or sex.

[30]           In reaching this conclusion I have considered Speedy Cash’s submission that there is “a minor but significant inconsistency” between the allegations in Ms. Harris’ human rights complaint and her direct complaint to Speedy Cash. Speedy Cash points out that in Ms. Harris’ human rights complaint she states that CP was initially interested in assisting her, and only acted negatively towards her when she approached his service window and he saw her “Native Sweater.” In the direct complaint to Speedy Cash, Ms. Harris states that CP was “negative right from the start”: TD affidavit at Exhibit B. In my view, nothing turns on this different statement wording because it’s unclear what Ms. Harris meant from the words “right from the start.” She may be referring to when CP first noticed her in the store. Or she may be referring to the start of her interaction with CP at his service window. This alleged inconsistency is not enough to say Ms. Harris’ complaint has no reasonable prospect of success.

[31]           I have also considered Speedy Cash’s reliance on John v. Canada’s Grocery Store & More, 2019 BCHRT 48 [John], as analogous to Ms. Harris’ complaint. In that case, the Tribunal found that Mr. John did not assert facts or provide any basis upon which the Tribunal could infer that his race was a factor in the service providers treated him: para. 29. In this case, as discussed earlier, Ms. Harris has asserted facts upon which the Tribunal could infer that her race, ancestry or sex were factors in CP’s treatment.

[32]           For these reasons, I am satisfied that Ms. Harris’ complaint has a reasonable prospect of succeeding at a hearing. As a result, I deny Speedy Cash’s application to dismiss under s. 27(1)(c).

[33]           Speedy Cash’s application to dismiss Ms. Harris’ complaint under s. 27(d)(ii) – as not furthering the purposes of the Code - was premised on a finding that Ms. Harris’ complaint has no reasonable prospect of success. I have found otherwise. Accordingly, I also deny Speedy Cash’s application to dismiss under s. 27(d)(ii).

[34]           I deny Speedy Cash’s application to dismiss Ms. Harris’ complaint based on s. 27(1)(c) and (d)(ii) of the Code.

[35]           If the complaint proceeds to a hearing, it will be open to the parties to make submissions about whether CP and TD should be identified.

[36]           The Tribunal’s mediation services remain open to the parties to try to resolve this matter by mutual agreement before proceeding to hearing. I note that Indigenous parties may request an Indigenous mediator, Indigenous protocols, and Indigenous dispute resolution models to resolve a complaint.