Gichuru v. Pallai, 2018 BCCA 78. To establish a complaint under s. 43, a complainant must show the following on a balance of probabilities:
- The respondent was aware that that the complainant made or might make a complaint; was named or might be named in a complaint; gave evidence or might give evidence in a complaint; or otherwise assisted or might otherwise assist in a complaint;
- The respondent evicted, discharged, suspended, expelled, intimidated, coerced, imposed a penalty on, denied a right or benefit to, or otherwise adversely treated the complainant.
- There is a sufficient connection between the impugned conduct and the complainant’s involvement in a complaint or possible complaint. This connection may be established by proving that the respondent intended to retaliate, or may be inferred where the respondent can reasonably have been perceived to have engaged in that conduct in retaliation, with the element of reasonable perception being assessed from the point of view of a reasonable complainant, apprised of the facts, at the time of the impugned conduct.
(Note: the complaint in Gichuru was based on s. 43 before it was amended. This statement of the test reflects the Court of Appeal’s decision and the 2015 amendment.)