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Performance, Probation, and Human Rights: Lessons for Employers from Shin v. British Columbia
Terminating a probationary or training employee always carries some risk, and that risk feels sharpest when the employee alleges discrimination. Shin v. British Columbia (Ministry of Public Safety and Solicitor General) (2026 BCSC 84) is a useful decision for British Columbia employers because it shows what a defensible performance-based dismissal looks like when a human rights complaint follows. The Supreme Court of British Columbia upheld the Human Rights Tribunal's early dismissal of a discrimination complaint brought by a correctional officer trainee, confirming that consistent, documented, job-related assessments can defeat a complaint before it ever reaches a full hearing. The decision is not a green light for probationary terminations, but it is a clear map of the practices that hold up.
One caution on how to read the result. The complaint was dismissed under section 27(1)(c) of the Human Rights Code, a gate-keeping power that screens out complaints with no reasonable prospect of success. The threshold for an employee to clear that gate is low: the evidence only has to take the case out of the realm of conjecture. The employer cleared a high bar to get an early dismissal, and the court reviewed that dismissal on the highly deferential patent unreasonableness standard. The lesson is about the strength of the employer's record, not a sign that probationary employees lack protection.
Managing a probationary or training employee whose performance is not meeting standard?
How you assess, document, and communicate that decision determines whether a later discrimination complaint can be dismissed early or proceeds to a costly hearing. Get your evaluation and termination process reviewed before you act.
Call: 1-800-771-7882 Review My Termination ProcessBackground: two attempts at the training program
Steve Shin, who is originally from South Korea and whose first language is Korean, was hired on a probationary basis as a correctional officer at the Okanagan Regional Correctional Centre. The role required successful completion of an Officer Training Program made up of class work, written examinations, and graded role-playing scenarios.
Shin began the program with one training cohort in March 2017. During that cohort he borrowed a classmate's notes, passed some tests on retakes, and was terminated after failing a third test. The employer then reconsidered, decided not to proceed with that termination, and allowed him to restart the program with the next cohort in April. During the second attempt he again borrowed a former classmate's notebook, was told he was under investigation for dishonesty related to the borrowed notes, and was assessed by three different evaluators on the graded role-playing scenarios. The employer concluded he failed those scenarios and rescinded his offer of employment.
Shin filed a complaint with the Human Rights Tribunal alleging discrimination on the grounds of age, ancestry, place of origin, and race, and later amended it to add mental disability. He argued the program did not accommodate his English-language abilities and that he had been targeted and unfairly evaluated. The employer applied to dismiss the complaint at the preliminary stage. In 2024 the Tribunal dismissed it under section 27(1)(c), and a reconsideration was denied. Shin sought judicial review, and the Supreme Court of British Columbia dismissed his petition.
What the Court decided
The complaint had no reasonable prospect of success
The Court upheld the Tribunal's conclusion that there was no reasonable prospect Shin could show his protected characteristics were a factor in either termination. His assertion that the assessors colluded to set him up to fail was unsupported by evidence and did not move the case out of the realm of speculation. On the deferential standard that applies, the Tribunal's screening decision was not patently unreasonable.
Language proficiency is not a protected characteristic
The Court accepted that language, on its own, is not a protected ground under the Code. A language requirement connected to the job is not inherently discriminatory, and a complainant must show a nexus between the requirement and a protected characteristic. Shin met the posted English prerequisite, the assessments tested genuine job competencies, and no link to race, ancestry, or place of origin was established.
Accommodation was an alternative basis, and disability was not established
Because the primary finding was that no protected characteristic was a factor, the accommodation analysis was an alternative path that could not undo the result even if imperfect. On the disability ground, the Tribunal found no reasonable prospect that Shin's reported stress and anxiety amounted to a disability under the Code, or that any such disability was known or ought to have been known to the employer.
New grounds raised too late were not considered
Shin tried to advance a perceived or imputed disability argument for the first time at the judicial review hearing. The Court found it had not been squarely raised in the complaint or the response to the dismissal application, and a tribunal does not act unreasonably by failing to decide a ground that was never properly put before it.
What made the employer's record defensible
Key lessons for B.C. employers
Tie assessments to genuine job requirements
The training standards survived scrutiny because they measured competencies the role actually demands, including the ability to communicate effectively in safety-critical situations. Define the essential requirements of the role, assess against them consistently, and you reduce the chance that a performance decision is recast as discrimination.
Document performance concerns as they happen
Contemporaneous notes, examination results, recordings, and assessor reports were what allowed the employer to show a non-discriminatory reason for its decision. A clear, dated record built during the process, not reconstructed afterward, is the single most valuable asset when a complaint follows.
Use more than one assessor where you can
Three evaluators independently reaching the same conclusion made the allegation of a targeted set-up far harder to sustain. Multiple assessors guard against both the reality and the appearance of individual bias in a high-stakes evaluation.
Take accommodation requests seriously and record your analysis
Accommodation is a shared process. Where a request is vague or unlikely to enable the employee to meet an essential requirement, the employer is not required to lower that requirement, but it should document what was requested, what was considered, and why a proposed accommodation would not allow the employee to meet the standard.
Investigate fairly, even when misconduct seems obvious
The employer investigated the borrowed-notes issue and concluded it had not given the trainee an unfair advantage, rather than treating the conduct as automatic grounds for dismissal. A neutral, documented investigation is part of what makes a later decision defensible.
Remember that human rights duties apply from day one
Probationary status may reduce notice obligations under employment standards law, but it does not lower the bar set by human rights legislation. The duty not to discriminate and the duty to accommodate to the point of undue hardship apply from the first day of employment, training period included.
Would your performance-based termination survive a human rights complaint?
Shin shows that the answer turns on consistent standards, careful documentation, and a properly considered accommodation analysis. A proactive review of your evaluation and termination practices is far cheaper than defending a complaint that should have been avoidable.
Book a Compliance Review Or call us: 1-800-771-7882How Achkar Law helps employers
Achkar Law advises British Columbia employers on workplace investigations, human rights compliance, and termination risk. We help employers build defensible performance evaluation and training programs, navigate accommodation obligations under B.C. human rights law, respond to and defend human rights complaints, conduct fair workplace investigations, and draft compliant employment policies and agreements before a dispute arises.
Related resources
For how an employer's duty to investigate harassment plays out in a related context, see our summary of Metrolinx v. Amalgamated Transit Union, Local 1587 (2025 ONCA 415).
For support reviewing performance, investigation, accommodation, and compliance practices, see our labour and employment compliance services.
Call us at 1-800-771-7882 for a confidential consultation.