BC Court of Appeal dismisses employer’s appeal regarding subconscious racial bias

The BC Human Rights Code provides protection for employees against discrimination on various grounds, including ancestry, place of origin, race, and colour. These grounds were referenced in the decision of Victor Mema v. City of Nanaimo, 2019 BCHRT 197, where Mema claimed that he, as a Black man (and the City’s first Black employee), experienced discrimination by his employer, the City.

The dispute eventually reached the BC Court of Appeal, which recently released its decision in Nanaimo (City) v. Mema, 2026 BCCA 203. The decision provides helpful guidance to assessing discrimination complaints, as well as information about the role of the BC Supreme Court and Court of Appeal in judicial reviews and appeals.

The situation started in July 2016, when Mema was hired by the City as its Chief Financial Officer. He reported to the Chief Administrative Officer, Ms. Samra. At the time, relations among City staff and councillors were acrimonious and there was an air of fear, paranoia, and anxiety in the workplace.

Concerns over credit card use

The City issued corporate credit cards to staff, which were intended to be used only for work. However, in practice, some personal use was accepted. Personal expenses had to be reimbursed to the City. Mema, like others, used his corporate credit card for personal expenses. His use of the credit card became concerning to others after he began to delay making repayments due to personal financial difficulties. A payment plan was put into place, though Mema continued to make personal purchases and the balance owing to the City continued to grow. Eventually, the City suspended his use of the credit card.

In November 2017, the City engaged KPMG to conduct a forensic audit of the credit card use generally. During this period, Mema recruited a former colleague, Mr. Mloyi, to the City. Mloyi became the City’s second Black employee.

In January and early February 2018, a local newspaper article suggested that Mema was improperly claiming designation as a Chartered Professional Accountant in BC. At around the same time, the Mayor advised Mema that he had been contacted by the RCMP, who were investigating Mema’s credit card use, and the president of the City’s union began to lobby for Mema to be fired. 

In February 2018, KPMG determined that there was no evidence of fraud or criminal activity related to Mema’s use of the credit card.

Misconduct report led to suspension, termination, human rights complaint

In February 2018, a manager in the City’s finance staff prepared a “Misconduct Report” that addressed Mema’s credit card use, his receipt of a vehicle allowance, the approval of his credit card statements by the CAO, Mema’s approval of the CAO’s legal invoices, and a request regarding Mloyi’s access to the City’s banking system. The report was sent to the City’s Director of Human Resources, Mr. Van Horne, who took the report to the City’s Manager of Legislative Services. The report was then provided to City Council at an in-camera meeting on March 1, 2018. The City Council resolved to suspend Mema’s employment. On May 11, 2018, City Council voted to terminate his employment.

Mema filed a human rights complaint on the basis of his ancestry, place of origin, race, or colour. The complaint eventually made it to a hearing at the Tribunal. The issue before the Tribunal was whether the evidence established, on a balance of probabilities, a connection between Mema’s protected characteristics and the suspension and termination of his employment. The Tribunal noted that Mema did not need to prove that his protected characteristics were the sole or even the overriding factor in the adverse treatment he suffered. He only needed to prove that his protected characteristics were a factor.

The Tribunal found that discrimination factored into the City’s decision to suspend and then terminate his employment, as the Misconduct Report was central to the process leading to the City’s decisions regarding Mema’s employment. It awarded Mema more than $600,000 in wage loss and injury to his dignity.

Supreme Court dismissed petition for review

The City filed a petition for judicial review to the BC Supreme Court. While the Tribunal has the sole jurisdiction to hear discrimination complaints, the courts exercise a supervisory role through the judicial review process.

The City asked the court to review the Tribunal’s decision. The City’s essential challenge to the Tribunal’s decision was that the Tribunal focused on finding facts that supported a finding of discrimination, instead of findings facts that would support both discriminatory and non-discriminatory interpretations of the events and then conducting a comparative analysis to determine which interpretation was the more likely of the two. The City’s petition was dismissed.

Undeterred, the City appealed the Supreme Court’s decision to the BC Court of Appeal, maintaining that the Tribunal’s finding that racial discrimination was a factor in Mema’s adverse treatment was unreasonable. The City made two arguments. First, it contended that the Tribunal “erred by failing to consider key factual and legal constraints in its analysis of whether the Misconduct [Report] and the Suspension and Termination Decisions were discriminatory.”  Second, it argued that the Tribunal was wrong to connect the Misconduct Report to the decisions to suspend and terminate.

On an appeal from a decision of the Supreme Court allowing or refusing an application for judicial review, the Court of Appeal “steps into the shoes” of the reviewing judge and makes its own assessment of the administrative decision under review. Judicial review often requires deference on the part of the reviewing court. The City conceded that its arguments challenged the factual inferences drawn by the Tribunal in reaching a factual conclusion, and that the standard of review was deferential. The Court of Appeal may only set aside a finding of fact made by the Tribunal where there is no evidence to support it or if, in light of all the evidence, the finding is otherwise unreasonable.

Report, termination decision informed by subconscious racial bias

The Court of Appeal reviewed the Tribunal’s decision and made specific reference to paragraph 298:

“… 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.”

The Court of Appeal also noted that the Tribunal “dedicated 45 paragraphs to assessing whether the Misconduct Report was informed by racial stereotypes.”

The City made three arguments in support of its contention that the Tribunal erred in failing to consider key factual and legal constraints in its analysis, and two arguments in support of its contention that the Tribunal erred by drawing a nexus between the Misconduct Report and the suspension and termination decisions.

Following a thorough review of the City’s arguments, the Court of Appeal dismissed the appeal. The Court of Appeal was unpersuaded that the Tribunal’s finding that Mema’s race and colour factored into the City’s decisions to suspend and terminate him was unreasonable. As a result, the chambers judge was right to dismiss the petition for judicial review, said the appeal court.

This is a significant decision regarding the issue of subconscious racial bias. The Tribunal, Supreme Court, and Court of Appeal each provide helpful guidance for employees and employers in similar situations.

Trevor Thomas is a partner and co-founder of Ascent Employment Law in Vancouver.