Brokerage loses bid to dismiss human rights complaint

B.C.’s Human Rights Tribunal has denied an application by insurance brokerage Shaw Sabey and Associates to dismiss a complaint lodged by one of its former employees, Adam Kwan, who is of mixed racial descent.

“I want to be clear that I am not saying Mr. Kwan’s complaint will succeed,” Human Rights Tribunal Member Pamela Murray wrote in her April 5, 2022 decision, Kwan v. Shaw Sabey and Associates Ltd. and others. “It may very well be that in the end, the Tribunal member who hears this complaint does not find any of the [brokerage employees’] conduct contravened the [Human Rights] Code.”

But in dismissing the brokerage’s application to drop the complaint, Murray noted the legal standard is whether credibility issues are at play. If they are, a tribunal has to make findings of fact, meaning the complaint would have to be heard before the tribunal.

“What emerges from the materials I have reviewed is that there are significant credibility issues on this application,” Murray wrote. “The parties disagree about what happened in almost all of the in-person conversations between them….

“In my view these…are foundational issues of credibility. Mr. Kwan says these things happened; the [brokerage] respondents say they did not. It will be necessary for a Tribunal member to hear the parties’ evidence at a hearing to decide what actually happened.”

Adam Kwan’s complaint to the Human Rights Tribunal has yet to be decided on its merits. Murray’s decision made no findings of fact.

In his complaint to the tribunal, Kwan, who has one parent from China (the other is White), alleges that while he was an insurance salesman at Shaw Sabey and Associates Ltd., a colleague used racial slurs about Chinese persons in the office. Specifically, Kwan’s complaint cites comments made by Clive Bird, whom the brokerage refers to as an independent contractor at the time. Bird referred to Kwan’s work colleague as “Panda” or “Kung Fu Panda.”

The brokerage claimed this was Bird’s nickname for one specific employee in the Shaw Sabey office, with whom Bird had a long and friendly working relationship. The co-worker has Asian heritage and provided evidence on the brokerage’s application to dismiss that she was not offended at all by being called Panda or Kung Fu Panda.

The brokerage and the co-worker submitted evidence the phrases were a specific reference to the animated movie Kung Fu Panda, which the co-worker loved, and also to her often wearing black and white clothing. The brokerage noted the co-worker sometimes signed off her emails to Bird with “KFP,” short for Kung Fu Panda.

Kwan’s complaint is that he found the terms to be racial slurs and offensive. He alleges he raised the matter with Bird and the brokerage’s HR manager, asking for the use of the terms to stop.

It is up to the tribunal to determine whether or not, as Kwan alleges, the terms were used repeatedly despite his objections. Also, the tribunal must decide whether or not brokerage staff told Kwan to stop pursuing his objections because the terms were merely nicknames.

Ultimately, it is up to the tribunal to determine the credibility of Kwan’s claim that his persistence in trying to stop the use of the terms played a role in his eventual dismissal at the brokerage.

The brokerage denies this, saying Kwan was ultimately terminated for reasons that had nothing to do with racial discrimination. The brokerage maintains that by early June 2018, Kwan had more than $20,000 in accounts receivable that were over 60 days outstanding. This was a problem for the brokerage, because when insureds don’t pay their premiums to the insurers, the brokerage pays them out-of-pocket to insurers so the policyholders keep the coverage, as Murray notes in her decision.

The brokerage also submitted evidence that in late November 2018, Kwan’s supervisor received complaints from a manager of Shaw Sabey’s Private Client Group about Kwan’s behaviour with colleagues in that department and making negative comments to a member of her team about her.

After speaking to Kwan about it, the brokerage says Kwan sent off five emails to the manager and others, which the brokerage described as inflammatory, and left the office early. ”I have reviewed the emails and they are in my own view fairly characterized as inflammatory,” Murray wrote.

After termination, Kwan was clearly angry, Murray noted. But this did not mean he filed his human rights complaint in bad faith.

“Mr. Kwan was clearly very angry Shaw Sabey fired him and acted in ways the [brokerage found] highly inappropriate, and I cannot say I disagree, including making accusations that some of the respondents are racist to the news media, professional regulators, and others, and apparently reported some of the respondents to the police for incidents relating to property he says is his,” Murray wrote.

Be that as it may, she continued, “I cannot find on the versions of events there is objective evidence that Mr. Kwan filed his complaint in bad faith or for improper purposes. Rather, throughout, he was – as the [brokerage] respondents acknowledge – deeply affected by hearing what he viewed as a racial slur in the workplace.

“Further, I am persuaded he was also deeply affected by how the respondents addressed the matter and by what happened with his job. As I have said above, I cannot conclude on a preliminary application that these later things had nothing to do with Mr. Kwan complaining about Mr. Bird calling the co-worker Panda in the office.”

Murray thus dismissed the brokerage’s application to drop the complaint, setting up a future tribunal hearing to establish what actually happened.

 

Feature image courtesy of iStock.com/sasar