BCCA Upholds $600,000 Award for Racial Discrimination Against an Employee.

By: Susan Emam.

The British Columbia Court of Appeal (the “BCCA”) recently upheld a British Columbia Human Rights Tribunal (the “Tribunal”) decision which awarded a complainant over $600,000 in damages.

Factual Background

The complainant, Victor Mema, was born in Zimbabwe and is a Black person. In 2015, Mr. Mema, was employed with the City of Nanaimo (the “City”) as its Chief Financial Officer. In May 2018, he was suspended from his position. Two months later, he was terminated.[1]

The suspension and termination were allegedly due to Mr. Mema’s use of a corporate credit card (the “P-card”). P-cards were issued to many City employees and were intended for business expenses only. In practice, many employees would also use their P-cards for personal purchases. From 2016 to 2017, Mr. Mema had accrued a large number of personal purchases on his P-card and had issues with repayment. Finance staff raised their concerns over his outstanding balance with City management. Mr. Mema was subsequently reprimanded. He agreed to a repayment plan and his P-card was cancelled.[2]

The City engaged an audit of P-card usage for personal purchases and sought recommendations to amend the existing policy. The auditors found that while most staff understood that P-cards were not meant for personal purchases, in practice, the City had condoned some personal use. The audit also showed that there were two outliers amongst staff that frequently used their P-cards for personal purchases with a lengthy repayment period (the “Other Outlier”). One of these outliers was Mr. Mema.[3]

Staff that raised concerns about Mr. Mema’s P-card use were unaware of the auditors’ findings, but knew that he no longer has a P-card and had since repaid the outstanding balance to the City. Staff viewed Mr. Mema through a lens of suspicion and perceived him as a financial risk to the City. A Misconduct Report was eventually filed against Mr. Mema with the City’s human resource department. The findings of the Misconduct report resulted in Mr. Mema’s employment suspension and subsequent termination.[4] The matter was highly publicized in their local community, significantly damaging Mr. Mema’s professional reputation.[5]

Tribunal Decision

Mr. Mema argued that the City singled him out and took disproportionate steps to discipline him due to his ancestry, place of origin, race or colour. The City denied all allegations of discrimination and argued that Mr. Mema’s suspension and termination was solely based on his misconduct. The hearing spanned nineteen days. Thirteen witnesses were called, and hundreds of pages of evidence were submitted. [6] 

The Tribunal analysed the evidence through the social context of anti-Black racism in predominantly White workplaces. [7] The Tribunal ultimately concluded that the Misconduct Report reflected racial bias and stereotype.[8] Evidence showed that Mr. Mema was not treated fairly and equally in comparison with other City staff. While purchases made by the Other Outlier were not subject to further review,[9] 100% of Mr. Mema’s charges were treated the same, even when they were made in error.[10]  The Other Outlier was also still employed in a management role at the City, even after incurring the highest number of personal purchases from 2010-2015.[11]

The Tribunal concluded that the Misconduct Report was discriminatory and a driving factor in the decision to terminate Mr. Mema’s employment.[12] While this racial bias was likely unconscious, his protected characteristics were still a factor in his suspension and termination.[13] Mr. Mema was awarded $583,413.40 in damages for lost wages, $50,000 as compensation for injury to dignity, and $10,150.04 for expenses incurred.[14] This was a total award of $643,563.44.

Petition to the Supreme Court of British Columbia

At the Supreme Court of British Columbia, the City’s petition to judicially review the Tribunal’s decision was dismissed.[15] The City argued that the Tribunal committed an error of law, or mixed fact and law, because they relied on hearsay and opinion evidence to draw an inference of discrimination.[16] The chambers judge did not accept the City’s arguments and held that the Tribunal had statutory discretion to receive and accept evidence it considers appropriate and necessary. [17]

 Appeal to the British Columbia Court of Appeal

On appeal, the City argued that the Tribunal unreasonably found that racial discrimination was a factor in Mr. Mema’s adverse treatment. The City advanced five core arguments maintaining that the Tribunal:[18]

1.         failed to consider Mr. Mema’s position of trust;

2.         incorrectly applied “the inference test” by ignoring the most obvious explanation for the Misconduct Report, which was Mr. Mema’s P-card usage;

3.         committed a factual error that pervades the Tribunal’s reasoning;

4.         failed to consider new information received by Council after its receipt of the draft audit report in January 2018, and prior to termination; and

5.         erred in imputing inferred bias underlying the Misconduct Report to the suspension and termination decisions.

The BCCA unanimously rejected the City’s arguments. Honourable Justice Gomery delivered his reasons for judgment with a detailed response to each of the City’s arguments, summarized as follows: 

1.      The issue before the Tribunal was not whether Mr. Mema’s misconduct was a factor in the City’s decision. Racial motivation and misconduct can co-exist. At issue was whether Mr. Mema’s race was a factor in the adverse treatment he experienced. It did not make a difference whether the City had a right to fire Mr. Mema for the misconduct.[19]

2.      This argument overlooked the Court’s obligation to defer to the Tribunal’s findings and assessment of evidence. In this, the law does not require a discrimination tribunal to address causation formulaically or mechanistically.[20]

3.      The Tribunal’s factual error did not have a material effect on the hearing result.[21]

4.      The Tribunal had reasonable basis to conclude that the Misconduct Report was the primary basis for Mr. Mema’s termination.[22]

5.      The Court disagreed that an employer cannot be held responsible for the subconscious bias of its employees.[23]

Justice Gomery dismissed the appeal and concluded that there was reasonable basis for the Tribunal’s finding that race was a factor in Mr. Mema’s suspension and termination.

Closing Remarks

The BCCA decision in Nanaimo (City) v. Mema, 2026 BCCA 203 raises several important considerations. First, appellants court will continue to show deference to Tribunal decisions in relation to findings of fact. Second, appellants must put forward valid arguments which allege errors subject to judicial review. Third, a finding of prima facie discrimination requires the protected ground to only be a factor in the alleged adverse treatment or impact.

The Tribunal’s decision in Mema v. City of Nanaimo (No. 2), 2023 BCHRT 91 reflects British Columbia’s recent trend to award higher damages for human rights discrimination cases.[24]  This is an important consideration for both complainants and respondents in discrimination claims, particularly during settlement negotiations.

The Okanagan Thompson Legal Clinic provides free legal representation to individuals located in the Okanagan Thompson region. Our Staff Lawyers provide clients with full representation in human rights discrimination claims. We also offer full representation for residential tenancy, human rights, employment, and other general civil litigation matters. If you require legal advice or assistance, submit an inquiry through our website or send us an email at info@bclegalclinic.com or phone us at 236-425-9120.

Sources and Authorities

[1] Mema v. City of Nanaimo (No. 2), 2023 BCHRT 91 at para 1 (Mema (BCHRT)).

[2] Mema (BCHRT) at para 2.

[3] Mema (BCHRT) at para 2-3.

[4] Mema (BCHRT) at para 2-5.

[5] Mema (BCHRT) at para 277-280.

[6] Mema (BCHRT) at para 13-18.

[7] Mema (BCHRT) at para 8-12.

[8] Mema (BCHRT) at para 20.

[9] Mema (BCHRT) at para 269

[10] Mema (BCHRT) at para 267.

[11] Mema (BCHRT) at para 200.

[12] Mema (BCHRT) at para 20.

[13] Mema (BCHRT) at para 12.

[14] Mema (BCHRT) at para 393.

[15] Nanaimo (City of) v Mema, 2025 BCSC 863 at para 98 (Mema (SCBC)).

[16] Mema (SCBC)at para 94.

[17] Mema (SCBC)at para 95.

[18] Nanaimo (City) v. Mema, 2026 BCCA 203 at para 55-56.

[19] Mema (BCCA) at para 61-64.

[20] Mema (BCCA) at para 66.

[21] Mema (BCCA) at para 69.

[22] Mema (BCCA) at para 76.

[23] Mema (BCCA) para 77-79.

[24] See: RR v. Vancouver Aboriginal Child and Family Services Society (No. 6), 2022 BCHRT 116, award of $150,000; Francis v. BC Ministry of Justice, 2021 BCHRT 16, award of $176,000; Ms. L v. Clear Pacific Holdings Ltd. and others, 2024 BCHRT 14, award of $170,000.