By: Michael J. Weiler & Chris D. Drinovz

Nanaimo (City) v. Mema, 2026 BCCA 203

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This is a follow up article to our earlier article on this saga.

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The British Columbia Court of Appeal has now upheld the decision of the BC Human Rights Tribunal exceeding $600,000 after finding that racial bias was a factor in the City’s decisions to suspend and terminate Mr. Mema, its Chief Financial Officer.

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Background

To refresh your memories, we will set out some of the relevant background again below.

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The City of Nanaimo hired Victor Mema as its Director of Finance in September 2015 and later changed his title to Chief Financial Officer. Mr. Mema (who was born in Zimbabwe and is Black) alleged that the City discriminated against him on the basis of ancestry, place of origin, race and colour when it suspended him in March 2018 and terminated his employment two months later.

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The dispute arose from Mr. Mema’s use of a corporate credit card, known as a P-card. The cards were not intended for personal purchases, but in practice some employees used them for personal expenses, identified those charges as personal, and repaid the City. There was no formal guideline setting out how quickly repayment had to be made.

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From 2016 to 2017, Mr. Mema accumulated a significant number and value of personal charges and was slow to repay the balance. Finance staff followed up over several months and eventually escalated their concerns to management. The City reprimanded Mr. Mema, agreed to a repayment plan, and ultimately cancelled his card. The City also retained auditors to review personal credit card use and recommend changes to policy or practice.

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Although the amount owing had been repaid, the City later suspended Mr. Mema after receiving an internal report from its finance staff alleging serious misconduct. City Council subsequently gave Mr. Mema an opportunity to be heard but ultimately voted to terminate his employment for cause.

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Tribunal Decision

Before the B.C. Human Rights Tribunal, the central issue was whether Mr. Mema’s protected characteristics were a factor in the City’s decisions to suspend and dismiss him. The Tribunal found that they were.

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The Tribunal concluded that, “however subconsciously,” stereotypes of a Black man as less honest or trustworthy factored into the internal misconduct report from Mr. Mema’s coworkers. Because the City relied on that report when suspending and terminating Mr. Mema, the Tribunal found that those decisions were tainted by discrimination.

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The Tribunal emphasized that the question was not whether Mr. Mema had breached a workplace duty or whether he had engaged in misconduct. The relevant question was whether his protected characteristics factored into the City’s conduct. It found “a distinct underlying thread of racial bias” in the way the misconduct allegations were framed, including a narrative that cast Mr. Mema’s credit card use as broader and more sinister than the established facts supported.

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The Tribunal awarded Mr. Mema remedies that included $50,000 for injury to dignity, feelings and self-respect, $583,413.40 for wage loss subject to a 25% reduction in the City’s responsibility, $10,150.04 in expenses, and post-judgment interest. It was noted in our prior article that the 25% reduction was due to the “chilling effect” on his future employment of numerous articles about Mr. Mema’s financial misconduct with his prior employer, the City of Sechelt, including the fact that Sechelt had to pursue him in court to seek repayment for personal purchases used on the corporate card, the exact same misconduct he was fired from Nanaimo for.

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Court of Appeal Decision

The City unsuccessfully sought judicial review in the Supreme Court of British Columbia and then appealed to the BC Court of Appeal. The Court of Appeal dismissed the appeal and upheld the Tribunal’s finding that there was a reasonable basis to conclude that race was a factor in the suspension and termination decisions.

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The Court reiterated several core principles of human rights law: Mr. Mema did not need to prove that the City intended to discriminate, nor did he need to prove that race was the sole or overriding factor in the adverse treatment. It was enough to show that a protected characteristic was a factor.

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The Court rejected the argument that the Tribunal had failed to consider Mr. Mema’s position of trust as the CFO when assessing the City’s decision to terminate him for cause. The Court noted that “it made no difference whether the City had the right to fire Mr. Mema for misconduct” (para. 61) and “it matters not whether Mr. Mema’s conduct may have given the City cause to terminate his employment at common law because a termination with cause may nevertheless contravene s. 13(1)(b) of the Code if it is racially motivated” (para. 63) holding:

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[64]      The City submits that the Tribunal could not decide whether Mr. Mema’s misconduct was a factor in the City’s decision to terminate without meaningfully engaging in an analysis of the misconduct.  But the issue before the Tribunal was not whether Mr. Mema’s misconduct was a factor in the City’s decision.  Undoubtedly, there were many factors.  Misconduct and a racist motivation could co-exist.  Only the presence or absence of the latter was relevant.

Another key argument on appeal was that the misconduct report was effectively an employee complaint and that the City should not be responsible for whatever alleged subconscious biases another employee may have held. The Court rejected that argument as well by stating as follows:

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[79]      I reject the City’s submission.  In my view, the distinction drawn by the City between policies, rules, and decisions, on the one hand, and employee complaints, on the other, is unprincipled and unsound.  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.  

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What was surprising to us is that the City did not appear to challenge the Tribunal’s finding of a general subconscious bias in the first place which the Tribunal clearly stated was not grounded in any direct (or even circumstantial) evidence but seemed to rely entirely on “historical disadvantage experienced by the group”.  

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We question however whether the City could have done anything to change the result. If they had done an external investigation which confirmed the misconduct without any bias, would the process still not have been found to be tainted by the original report? How could the employer “clean” the ultimate decision to terminate? What about the fact that Mr. Mema was offered the chance to speak to Council? Could it be argued that this eliminated any discrimination?

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Practical Takeaways for Employers

This result would be extremely difficult for most if not all employers to accept and in our view undermines the trust necessary to have in our adjudicative process. Where hundreds of thousands of dollars are awarded based on a connection that was assumed (not proven), it creates an incredible uncertainty, not to mention the chilling effect on employees and other whistleblowers who are acting in good faith and reporting financial and other misconduct, particularly in a public organization.

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All of this is occurring in the underlying context of extraordinary adjudicative delay. In a recent presentation, the BC Human Rights Tribunal confirmed that complaints are now being vetted and forwarded to employers 2 years after being filed, and the average time for decisions is now down to 5 years from the date of original filing, and this is an improvement!

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Employer must now be extremely cautious when investigating misconduct against any racialized individual. Mema demonstrates that courts and tribunals will look beyond the serious misconduct and examine how the employer reached its decision. A disciplinary outcome that may appear justified can still be found to violate human rights legislation if the process was tainted or biased in any way, including if subconscious bias is found to have influenced the investigation, the report, or the decision-making process.

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The case also shows the risk of relying too heavily on a single internal narrative produced by co-workers without having an external investigation done. Where there is a possibility that an internal complaint is only assembling partial facts or creates a suspicious or exaggerated story, decision-makers should pause before treating the report as a reliable foundation for discipline without outside verification.

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When investigating workplace misconduct and making disciplinary decisions, employers should keep the following points in mind:

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• ‍Vet from the beginning. Had the City done some basic due diligence on Mr. Mema, they would have found his past misconduct with Sechelt and avoided this case altogether.
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• Cause is not a complete answer. A termination for cause may still breach human rights legislation if a protected characteristic plays any role in the decision.
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• Investigate thoroughly and objectively. Employers should not rely uncritically on one employee’s report or account, especially where the allegations are serious and the consequences are significant.
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• Test the factual foundation. Decision-makers should distinguish between established facts, assumptions, inferences, and speculation before imposing discipline.
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• Consider whether bias may be operating indirectly. Bias does not need to be intentional or overt. Employers should assess whether stereotypes or assumptions may have shaped how concerns were framed, investigated, or escalated.
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• Use independent support where appropriate. In serious or sensitive matters, an independent investigator or outside advisor may help ensure the process is fair, impartial, and evidence-based.
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• Document the decision-making process. Employers should be able to show how they assessed the evidence, considered the employee’s response, and separated legitimate misconduct concerns from potentially biased reasoning.
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Note to Readers: This is not legal advice. If you are looking for legal advice in relation to a particular matter please contact one of our group members. We communicate all these updates to our clients and readers on our Employer Resources Portal and through monthly Newsletters.

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