This ruling came from Devyn Cousineau, the same Tribunal member who brought international notoriety to the BCHRT for entertaining discrimination allegations against minority immigrant women over their opposition to wax a trans woman's testicles. Before the media scrutiny over the waxing cases, Cousineau referred to the waxing of the testicles of gender non-conforming biological males who identify as transgender as "critical gender-affirming care."
Yet Cousineau announced in this recent decision that Nelson was discriminated against in their non-binary identity, Cousineau downplayed offenses that Nelson performed. Nelson had slapped a colleague on the back in anger. Different employees called this a physical assault. Yet Cousineau announced that "there is no evidence that the contact… could fairly be characterized as violent."
However, Cousineau sees a more significant threat in the use of language than in actual physical violence. In the decision, Cousineau wrote about "the power of language" and how not using a person's preferred pronouns is "extremely harmful." In Nelson's case, she wrote that there was an "added layer of harm by the implicit messaging that [the defendant] regarded and treated them as a woman. This undermined, erased, and degraded their gender identity in their place of work. This is discriminatory."
Nelson was dismissed from her position at Buono Osteria after four weeks of employment when it is legal to fire an employee without cause throughout her probationary period. Her employer fired her through a phone call. As the ruling outlines, Nelson kept her former employer on the phone for 20 to 30 minutes, needing to know why she was being dismissed. The employer eventually made remarks regarding Nelson "coming off too strong" and being "militant." These remarks made Nelson's human rights complaint possible.
In addition to the money awarded to Nelson, the Tribunal ruled that the restaurant has to implement a pronoun policy and provide both human rights and diversity, equity, and inclusion training for all staff. Cousineau further "encouraged" the restaurant to update all existing policies with "non-binary, gender-neutral language."
Buried within her ruling, Cousineau wrote that she has "a hard time imagining that the restaurant would have responded in the same way to other serious complaints of discrimination."