A recent British Columbia Court of Appeal decision is a significant reminder that workplace discrimination can exist even where an employer believes it had legitimate grounds for discipline or even dismissal.

In September 2015, the City hired Victor Mema as its Director of Finance. Following a reorganization, in July 2016 it changed his title to Chief Financial Officer.

In March 2018, it suspended him. Two months later, it terminated his employment. Mr. Mema complained to the British Columbia Human Rights Tribunal that he was the victim of racial discrimination on the basis of ancestry, place of origin, race and colour, contrary to the Human Rights Code. Mr. Mema was born in Zimbabwe and is a Black person.

The City issued corporate credit cards, known as “P-cards,” to many City employees. They were not for personal use.   However, in practice, employees sometimes used the cards for personal purchases. They would mark such expenses as personal on the credit card statements and repay the City. There was no formal guideline as to how quickly repayment should occur.

From 2016-2017, Mr. Mema accrued a high number and amount of personal purchases on his card. For some time, he was slow repaying it. Finance staff followed up with him for payment over several months. They grew concerned as the balance grew. Staff eventually raised the issue with City management, who reprimanded Mr. Mema, agreed to a repayment plan, and ultimately cancelled Mr. Mema’s card.

The City also hired auditors to audit personal uses of the credit cards and to recommend any required changes to policy or practice.

Even though he had repaid the amount in full, in March 2018, the City suspended Mr. Mema’s employment. This was prompted by a report of serious misconduct that had been prepared by a City staff member (the “Misconduct Report”).    

Prior to terminating him, the City gave Mr. Mema an opportunity to be heard at a meeting held in May, 2018.  Mr. Mema attended the meeting with counsel who spoke on his behalf.  

Nevertheless, City Council voted to terminate Mr. Mema’s employment for cause.   

Human Rights Tribunal Proceeding

At the B.C. Human Rights Tribunal, the focus was on employer (City)’s attempt to demonstrate that race was not a factor in Mr. Mema’s suspension or dismissal.

In Mema v. City of Nanaimo, 2023 BCHRT 91, the Tribunal concluded that:

[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.

At para. 303, the Tribunal stated:

[303] The question before me is not, however, whether Mr. Mema breached a duty or even whether he in fact engaged in misconduct. It is whether his protected characteristics factored into the conduct of the City.

The Tribunal found “a distinct underlying thread of racial bias” that it considered was “more likely than not informed by the pernicious stereotypes I have pointed to above of Black men as less honest or trustworthy”: at para. 306.  

It found that the Misconduct Report’s most critical feature was “how the individual points work together to paint Mr. Mema’s use of his P-card as something much broader and more sinister”: at para. 337. It identified a theme: “eyeing with suspicion various events about which only partial facts were known and assembling them in a way that created a narrative of suspicion and ‘risk’”: at para. 341. The Tribunal attributed this extrapolation at least in part to the influence of negative racial stereotypes.

The Tribunal observed that the City’s decision to suspend Mr. Mema was based on the allegations set out in the Misconduct Report. Having concluded that the Misconduct Report was discriminatory, it relied on Bombardier Aerospace Training Center), 2015 SCC 39 to conclude that the suspension decision based on the Misconduct Report was also discriminatory: at para. 346.

The Tribunal went on to find that the Misconduct Report was “the primary basis for the termination decision”: at para. 348

Ultimately, the Tribunal awarded Mr. Mema:

•             $50,000.00 for injury to dignity, feelings, and self-respect;

•             $583,413.40 for wage loss, for which the City was held to be 75% responsible

•             $10,150.04 in expenses; and

•             Post-judgment interest.

Mr. Mema’s wage loss was discounted by 25% because of publicly available information about his previous job history at the City of Sechelt and his use of the corporate credit card there. publicly available material highlighted Mr. Mema’s use of a corporate credit card for personal purchases while employed by Sechelt. One article said Sechelt had to pursue legal proceedings to seek repayment.   

Courts Uphold Tribunal Decision

The City petitioned the Supreme Court of British Columbia for judicial review. The petition was unsuccessful. In Nanaimo (City of) v. Mema, 2025 BCSC 863, the judge upheld the Tribunal’s decision and awarded costs to Mr. Mema.

The City then appealed that decision to the Court of Appeal for British Columbia. There too, it was unsuccessful:  Nanaimo (City) v. Mema,  2026 BCCA 203.

At para 2, the Court of Appeal commented on the Tribunal proceeding, and then reiterated several foundational principles in human rights law:

The Tribunal heard Mr. Mema’s complaint over 19 days in 2020 and 2021. Thirteen witnesses testified. The only point in issue was whether the evidence established, on a balance of probabilities, a connection between protected characteristics (Mr. Mema’s ancestry, place of origin, race or colour) and the suspension and termination of his employment. Mr. Mema was not required to prove that the City intended to discriminate: Code, s. 2. He did not need to prove that his protected characteristics were the sole or even the overriding factor in adverse treatment he had suffered….Mr. Mema only needed to prove that his protected characteristics were a factor.  

[emphasis in original]

At the Court of Appeal, the City advanced five arguments attacking the reasonableness of the Tribunal’s factual finding that race was a factor in the decision to terminate.

One of the arguments that the employer City made was that the Misconduct Report was an employee complaint, and an employer is not responsible for the subconscious biases that its employees may harbour.  

At para. 78, the Court of Appeal observed that “discrimination can result from an apparently neutral policy, rule, or decision whose discriminatory effects are invisible to an employer.”

At paras 79-80, the Court of Appeal rejected that argument as “unprincipled and unsound.” The Court pointed out that while it is true that the City has no control over the subconscious biases that may motivate employee complaints, it is in control over how it handles complaints, and the decisions it makes in reliance on them.  The City Council chose to suspend Mr. Mema, and later to terminate him.  Nothing forced its hand.  In choosing to take action based on an employee complaint without full investigation, it assumed the risk that the complaint rested on an insecure foundation.

The Tribunal found that the Misconduct Report did not come before Council in a factual vacuum.

The Court of Appeal concluded that there was a reasonable basis for the Tribunal to conclude that race was a factor in the suspension and termination decisions. It dismissed the appeal.

Takeaways

This decision is interesting for many reasons, including because it illustrates the difference between discrimination and wrongful dismissal. 

Whether or not an employer may have had just cause for dismissal, discrimination may still exist.   At para 63, the Court of Appeal recognized that it did not matter whether the City had just cause to terminate Mr. Mema’s employment at common law. This is because a termination with cause may nevertheless be discriminatory if a protected characteristic is a factor in the dismissal.   At para 64, the Court observed that “Misconduct and a racist motivation could co-exist. Only the presence or absence of the latter was relevant.”  

If you feel that a personal characteristic such as race, gender, religion or other protected characteristics may be a factor in adverse workplace impacts, are experiencing issues at work, or simply want to understand your rights, we are here to help. Learn more about Inspire Law or book a consultation to discuss your specific situation.

You may also be interested in this article: Landmark Human Rights Award: Francis v. BC Ministry of Justice (No. 5)

This article is for general informational purposes only, does not constitute legal advice, and is not directed at any particular client or case. The views expressed herein are based on current law, specific facts and available information and may not be applicable to your specific situation or to any matter on which we may act. You should not rely on this material in place of consulting a qualified lawyer about your own situation.

About the Author
Susan Kootnekoff is a lawyer and founder of Inspire Law, an employment and human rights law practice that serves clients across British Columbia and beyond. She represents clients in employment related matters including wrongful dismissal claims, employment contract negotiations, severance negotiations, human rights complaints and workplace rights.

© 2026 Susan Kootnekoff, Barrister & Solicitor