The City of Nanaimo, a medium sized BC community of 170,000
residents employed Victor Mema as its CFO for 3 years from 2015 to
2018 when he was dismissed for cause related to misuse of the
City's credit cards. Mema was a Black person from Zimbabwe. 5
years after his termination the Chair of the Human Rights Tribunal
found his race was a factor in his termination and awarded him lost
wages of $583,413.40 (after deducting some portion for
mitigation!), $50,000 as compensation for injury to dignity,
feelings and self-respect, $10,150.04 for expenses and post
judgment interest.
The decision represents in my view a marked departure from the
usual findings of a violation of the Code that all employers,
especially municipal and public sector employers should note.
Decision - Mema v City of Nanaimo
The decision is 107 pages and delves into the facts in great
detail. But the City would have known from the first 5 pages of the
Award that it was in trouble.
The Tribunal spends the first 4 pages analyzing the concept of
anti-Black racism:
[6] This case alleges anti-Black
racism in a predominantly White workplace, in which Mr. Mema was
one of very few Black employees. The social context of anti-Black
racism in Canada is a critical element. I take notice that, as Mr.
Mema submits in argument, "Black people can be treated
adversely in the workplace because of a conscious or unconscious
stereotype of Black people being criminals, dishonest, of
questionable moral character or poor."
It concludes in the opening section:
[12] Ultimately, I have applied the
above in my consideration of whether the evidence as a whole could
support an inference that, on a balance of probabilities, Mr.
Mema's protected characteristics factored into the City's
suspension and termination of his employment.
Evidence and Findings of Fact
It is not possible to review in any detail in this article the
extensive analysis of the facts and findings of the Tribunal that
span almost 70 pages and indeed it is difficult to fully summarize
the various findings. Although the findings are important the focus
of this article is the legal analysis of discrimination under the
Code. Anyone who wants to really understand the impact of this
decision should take the time to read the section on "EVIDENCE AND FINDINGS OF FACT" pages 9
through 76. We will summarize the key findings as follows
All employees who had use of corporate credit cards (referred to
as P-cards) were required to sign a P-Card Agreement which
prohibited personal use. The P-Card Agreement included the
following provisions:
3. I understand that under no
circumstances will I use the [P-card] to make personal purchases.
Failure to do so could be considered as misappropriation of City
funds. Failure to comply with this Agreement may result in either
revocation of my user privileges or other corrective action, up to
and including termination of my employment.
4. I agree that should I violate the
terms of this Agreement and use the [P-card] for personal use or
gain, that I will reimburse the City for all incurred charges and
any fees related to the collection of those charges
The Tribunal found however that:
[44] In practice, however, some
personal use of P-cards was accepted. Where someone used their
P-card for personal expenses, they were expected to indicate that
expense as personal on their P-card statement and reimburse the
City. There were no guidelines for the timelines for such
repayment, but most people repaid promptly.
Mr. Mema in his role as CFO had to approve other employees'
P-Card expenses. He noticed that some employees would indicate
personal expenses and would reimburse the City promptly.
Notwithstanding his role as CFO Mr. Mema concluded that the City
condoned this practice and therefore he used his P-Card for
personal use. He knew the practice had to be updated as it clearly
was not good practice but concluded that while "it may not
have been good practice it was the practice at the City.
Notwithstanding his conclusion it was a bad practice he took no
steps to amend the policy when he became CFO.
However unlike other employees Mr. Mema did not repay his
personal expenses promptly. Unfortunately, the CAO who herself had
a dispute with the City simply approved Mr. Mema's personal
expenses and sent them to the finance staff for processing.
This then became a major problem for employees in the finance
department as Mr. Mema continued to rack up large amounts of
personal expenses and would not repay them.
The decision outlines the serious problems at the City at the
time. By 2016 the acrimony between the CAO and the Mayor had
escalated to the point where the City paid $10,000 for the CAO to
get her own legal advice regarding:
alleged defamation, bullying,
harassment and discrimination by the Mayor and a Councillor, after
Council's directing them to "work collaboratively and
respectfully" with Ms. Samra [the CAO]"
Fast forward to the point where certain staff in the finance
department make formal complaints about what they saw as abuse by
Mr. Mema and the CAO of the P-Card policy. The City engaged
auditors to review the P-Card practices and filed its Report.
The finance staff filed a Serious Misconduct Report regarding
Mr. Mema. Broadly the allegations were:
1. Mr. Mema began using his P-card
for personal purchases in March 2016;
2. Since then, in total, he made 70
personal transactions totaling $14,148.97;
3. He was aware that the cardholder
agreement prohibits personal use of the Pcard;
4. Mr. Mema's personal use of the
P-card meets the definition of "serious misconduct"
because it constitutes "unauthorized and inappropriate use of
the City's assets",
5. In September 2017, DD and Ms.
Mercer reported Mr. Mema's use of the P-card to the City's
regular auditors, under s. 172 of the Community Charter;
6. Repeated attempts were made to
have the funds repaid;
7. Mr. Mema issued a cheque to the
City that was ultimately returned NSF;
8. On February 17, 2017, "the
City of Nanaimo began a $500 biweekly payroll garnishment to begin
to repay the amount owing";
9. Around the same time, the City of
Nanaimo began to pay Mr. Mema $600 per month as a "vehicle
allowance". Ms. Slater alleged that the CFO position requires
very little travel for business, and that she did not have any
details on how this was authorized;
10. All of Mr. Mema's P-card
statements were approved by Ms. Samra;
11. Ms. Samra disciplined Ms. Mercer
and DD when they brought Mr. Mema's personal P-card purchases
to her attention;
12. Ms. Slater was concerned that Mr.
Mema and Ms. Samra were using their "management override
capabilities" to authorize payments and expenditures for each
other. Ms. Slater noted the $16,922.50 payment to Ms. Samra on for
the Samra Legal Invoices and another amount for the 2017 bonus
payment to Mr. Mema; and
13. Mr. Mema requested that Mr. Mloyi
be granted access to the banking system
Mr. Mema was first suspended and then ultimately terminated. A
key problem at the City were numerous leaks of confidential
information to the media. Mr. Mema first found out about the
Misconduct Report when a radio reporter contacted him asking about
his suspension.
Legal Analysis
The Tribunal summarizes the applicable law of discrimination
under the Code:
[281] In a human rights complaint,
the burden to establish that discrimination has taken place rests
with the complainant. It is not up to the respondent to prove that
they did not discriminate: Heyman v. Saunders (No. 2), 2010 BCHRT
88, at para. 6. A complainant is required to prove a case of
discrimination on a balance of probabilities. If the complainant is
successful in establishing a case of discrimination, the burden
shifts to the respondent to justify its conduct. If the complainant
fails to prove a case of discrimination, then there is no breach of
the Code...
[282] In order to establish a case of
discrimination, Mr. Mema must prove that he experienced an adverse
impact regarding his employment and that his ancestry, place of
origin, race or colour was a factor in that adverse impact: Moore
v. British Columbia (Education), 2012 SCC 61, para. 33. There does
not need to be an intention or motivation to discriminate: s. 2 of
the Code. One's protected characteristics need not be the sole
or even the overriding factor in the adverse impact experienced;
they need only be a factor...
[283] In this case, there is no
dispute that Mr. Mema has the protected characteristics under which
he filed this complaint. He is Black and was born in Zimbabwe.
There is also no dispute that he suffered an adverse impact when he
was suspended and later terminated from his employment, following
the filing of the Misconduct Report.
What makes this case interesting and scary for employers is the
analysis the Tribunal considered in finding discrimination in this
case:
[284] The issue I must decide is
whether there is a connection between Mr. Mema's protected
characteristics and the City's suspension and termination of
his employment. This is a question of fact for the Tribunal to
decide after a review of all of the evidence: Stewart v. Elk Valley
Coal Corp., 2017 SCC 30 at para. 5. Aside from the
perceptions of the witnesses including City Councillors and
employees, there is no direct evidence that Mr. Mema's
protected characteristics were a factor in the City's
decisions. Rather, this is a connection that can only be made from
drawing an inference. [emphasis added]
The Tribunal rejected what it said was the City's arguments
that there was no evidence of any connection between the decision
to terminate and any prohibited ground. It stated:
[288] To the extent the City is
arguing that discrimination can only be established by direct
evidence, this approach is inconsistent with the prevailing
jurisprudence, specifically in respect of race-based
discrimination. In fact, the jurisprudence is express in
highlighting that such discrimination is often proven precisely
from drawing inferences. The Tribunal made this point in Kennedy,
developing it further in Radek v. Henderson Development (Canada),
2005 BCHRT 302 [Radek]. In Radek, the Tribunal acknowledged that
discrimination will more often be proved by circumstantial evidence
and inference; and that subtle unconscious beliefs, biases and
prejudices usually inform racial stereotyping, which can be
inferred from circumstantial evidence.
[289] This Tribunal has more recently
articulated the approach to be taken in the context of race
discrimination in Campbell v. Vancouver Police Board (No. 4), 2019
BCHRT 275 [Campbell] and Francis. I adopt the Tribunal's
statements in Campbell at paras. 102 – 105, regarding the
subtle, pernicious nature of racial discrimination, with most
racial discrimination complaints turning on an inference. There,
the Tribunal said that (at para. 103): an inference of
discrimination may arise "where the evidence offered in
support of it renders such an inference more probable than the
other possible inferences or hypotheses": Vestad v. Seashell
Ventures Inc., 2001 BCHRT 38 at para. 44; Abbott at para. 31. In
this case, the question is whether an inference of discrimination
is more likely than the VPB's explanation for the officers'
conduct. In making this assessment, it is not necessary that the
officers' conduct be consistent only with the allegation of
discrimination and not any other rational explanation...
[291] I similarly adopt this
Tribunal's approach in Francis at paras 284 – 289, as
cited by Mr. Mema, where the Tribunal emphasized the importance of
a contextual approach to race discrimination, noting that several
contextual factors informed the analysis of the inferences that
could be drawn from the facts in that case. As the Tribunal
explained at para. 284: Establishing what constitutes a reasonably
objective observer in the context of race discrimination cases is
challenging. There are "no bright lines" in cases where
discrimination must be proven by circumstantial evidence, and these
cases are often "difficult" and "nuanced"... A
contextual examination of all relevant circumstances is often
required to identify the "subtle scent of
discrimination"... For example, one such contextual
circumstance is any historical disadvantage experienced by the
group: Mezghrani v. Canada Youth Orange Network Inc. (CYONI) (No.
2), 2006 BCHRT 60 [CHRR Doc. 06-066], para. 28
The Tribunal concludes:
[293] In sum, as stated earlier in
this decision, I have applied the recognition by courts and human
rights Tribunals of pervasive stereotypes of Black men in my
consideration of the issue before me. That issue is whether the
evidence as a whole could support an inference that, on a balance
of probabilities, Mr. Mema's protected characteristics factored
into the City's suspension and termination of his
employment.
In rejecting all the City's arguments including the fact
that their CFO had engaged in serious financial misconduct that
there was no evidence to support a finding of discrimination, the
Tribunal comments:
[295] The City argues that there was
no differential treatment of Mr. Mema because "any CFO in a
similar position and engaging in such serious misconduct would have
been terminated from employment in February, 2017; and, if not
then, in October, 2017." Evidence of differential treatment is
not necessary, and in any event, this argument relies on a
hypothetical. The issue before me is not whether the City treated
Mr. Mema as it would have any other hypothetical CFO in the same
situation, but whether his protected characteristics were a factor
in how the City did treat him.
[296] The City then argues that there
is no evidence that the February or October reporting of the P-card
issues by finance staff, or Ms. Mercer's flagging it to the
auditors were "triggered by racist motives". However,
"motive" and intentions are not required to establish
discrimination under the Code, as s. 2 of the Code makes plain.
Further, it disregards the reality that racial stereotypes
may operate subconsciously, as this Tribunal recognized in Campbell
and Francis. [Emphasis added]
Despite what appeared to be a strong argument by the City of a
"non discriminatory explanation" for the suspension and
termination the Tribunal found:
[298] Ultimately, for the reasons set
out below, I am satisfied on a balance of probabilities that
– however subconsciously – pernicious
stereotypes of a Black man as less honest or trustworthy factored
into the Misconduct Report, and as such there is a connection
between the Misconduct Report and Mr. Mema's protected
characteristics. The City's reliance on the discriminatory
Misconduct Report tainted its decisions to suspend and terminate
Mr. Mema's employment, rendering it discriminatory. I am thus
satisfied on a balance of probabilities that the City breached the
Code when it suspended then terminated Mr. Mema's employment.
[Emphasis added]
Remedies
As noted, the Tribunal found that an award of $50,000 for hurt
feelings, injury to dignity and self respect. Mr. Mema had asked
for $75,000.
The really interesting finding is the wage loss. The Tribunal
found that Mr. Mema tried to mitigate his damages. However despite
a finding of discrimination that resulted in his lost employment
the Tribunal was not satisfied that Mr. Mema's difficulties in
finding reemployment arose solely from the discrimination by the
City and therefore the City was not responsible for
all the loss from the time from the termination to the
time of the hearing, ie the normal award [a claim of $777,884.54].
Why did the Tribunal find that not all the loss in remaining
unemployed lay at the feet of the City?
[385] However, on a balance of
probabilities, I am not satisfied that Mr. Mema's difficulties
in finding reemployment arise solely from the discrimination or
that that awarding compensation for all lost wages between the time
of the termination and the hearing would be an appropriate exercise
of my discretion under s. 37(2)(d)(ii).
[386] I am satisfied that publicly
available information about the matter with Sechelt contributed to
his difficulties in finding reemployment. In my view, that
situation would reasonably raise questions for a prospective
employer about Mr. Mema's judgment.
[387] I note that Mr. Mema recalled
in his evidence, one prospective employer asked him, "have you
Googled yourself?", presumably referring to the various media
articles. I understand this to relate not only to the publicity
surrounding his employment with the City, but also his employment
with Sechelt. I have not considered the media coverage of the
situation at the City. Regardless of the events at the City, the
City's witnesses testified that they came across publicly
available material highlighting Mr. Mema's having used his
corporate credit card for 105 personal purchases while employed by
Sechelt. Further, the article referenced Sechelt's having had
to pursue him through the courts to seek repayment. It is
reasonable to expect this information would have a chilling effect
for prospective employers. The article was put into evidence.
There is no dispute about that.
[388] For the reasons set out above,
I have reduced the wage loss award sought by a quarter, resulting
in a final award of $583,413.40. In my view, this appropriately
accounts for the fact that Mr. Mema's loss of employment was
discriminatory, while also accounting for the fact that not all of
the wages lost by Mr. Mema fall at the feet of the City for its
breach of the Code. It accounts for the fact that some of the
information in the public domain related to his alleged conduct
while at Sechelt more likely than not played a role in prospective
employers' reticence to hire him and his difficulties in
finding reemployment.
Interesting that this probative evidence of the same issue of
misconduct at his previous employer did not factor into the
accepting the City's defense but did factor in to reducing the
claim by almost $200,000.
Finally it is important to note (and a little bit scary) that
the Tribunal made no award for future loss as none
was sought by the complainant.
TAKEAWAYS
The decision is simply too complicated to summarize all the
findings. The Tribunal appears to be more readily able to reject
the City's evidence in favour of Mr. Mema's evidence
ignoring the onus that rested on Mr. Mema to prove the
discrimination ie the connection between his termination and his
protected ground. And as noted it makes this extraordinary finding
based on assumed stereotypical unconscious prejudices against Black
men.
But the reality is that with legal fees the cost to the City
could well exceed $1 million. The same findings could be made of a
small municipality say of 10,000 as each case is an individual
assessment—it only takes one employee to have a human rights
complaint. How would the citizens of a small community handle
payment of a $1 million award plus legal fees especially when most
in BC are suffering from horrendous destruction and costs fighting
forest fires?
In my view the decision of the Tribunal here fails to provide
proportionality in its analysis and conclusions. Further I think
public sector employers are easy targets for employees to file
human rights complaints. But how long can public employers bear
these costs? The answer might have to be amendments to the Code to
limit such awards and more clearly define what is needed to prove
discrimination.
Finally this award highlights the significant procedural
problems that now exist at the Tribunal. The delay in processing
complaints has become epidemic. For example in a recent case the
alleged discrimination took place in December 2020; the Complaint
was filed at the very end of the one year limitation period Dember
2021 and the Tribunal first notified the Employer that the
complaint had been filed in May 2023 some 32 months after the
events alleged to constitute discrimination.
Here there was almost a 5 year gap from the termination to the
award and the potential wage loss was exacerbated due to the
Tribunal's inefficient process to conduct a proper formal
hearing.
I acknowledge that the Government has stepped up with further
financial support and the Tribunal is doing everything it can to
resolve the backlog and increase the efficiency of the system. Yet
fixing the problem will likely take years. In the meantime
employers large and small pay the price.
NOTE the City advises that it will be filing an appeal by way of
a Judicial Review—watch this space.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.