Chato v. Teck Metals Ltd. and another, 2024 BCHRT 188
Date Issued: June 19, 2024
File: CS-003412
Indexed as: Chato v. Teck Metals Ltd. and another, 2024 BCHRT 188
IN THE MATTER OF THE HUMAN RIGHTS CODE,
RSBC 1996, c. 210 (as amended)
AND IN THE MATTER of a complaint before
the British Columbia Human Rights Tribunal
BETWEEN:
Ms. Ashley Chato
COMPLAINANT
AND:
Teck Metals Ltd. and Richard Magner
RESPONDENTS
REASONS FOR DECISION
APPLICATION TO DISMISS A COMPLAINT
Section 27(1) (c) and (d)(ii)
Tribunal Member: Laila Said Alam
Counsel for the Complainant: Matthew Yates
Counsel for the Respondents: David T. McDonald
I INTRODUCTION
[1] Ms. Chato alleges Teck Metals Ltd. and her supervisor, Richard Magner, [together, Respondents] discriminated against her in the area of employment on the grounds of family status, contrary to s. 13 of the Human Rights Code. Specifically, she alleges that they failed to accommodate her request to shift her working hours so that she could address her childcare needs. As a result, she had to take unpaid leave.
[2] The Respondents deny discriminating. They apply to dismiss the complaint under sections 27 (1)(c) of the Code.The Respondents argue Ms. Chato has no reasonable prospect of establishing that she experienced an adverse impact or that her family status was a factor in the Respondents’ decision-making. They also argue that they are reasonably certain to establish that they met their duty to accommodate Ms. Chato. They also apply to dismiss the complaint against Mr. Magner under s. 27(1)(d)(ii) of the Code. The Respondents say it would not further the purposes of the Code to proceed against him as an individual respondent.
[3] To decide this application, the issues I need to decide are:
a. Does Ms. Chato have a reasonable prospect of proving that her unpaid leave was an adverse impact in employment within the meaning of the Code ?
b. Are the Respondents reasonably certain to prove at a hearing that Ms. Chato failed to cooperate with the accommodation process?
c. Does it further the purposes of the Code to allow the complaint to proceed against Mr. Magner because he was the sole decision maker in regards to Ms. Chato’s accommodation request and his conduct was infused with personal animosity, anger, and retaliation towards her?
[4] For the following reasons, I allow the complaint against Teck Metals Ltd. to proceed, and I dismiss the complaint against Mr. Magner. To make this decision, I have considered all the information filed by the parties. In these reasons, I only refer to what is necessary to explain my decision. I make no findings of fact.
II BACKGROUND
[5] Ms. Chato is a single mother of two young school-aged children. She is their primary caregiver.
[6] Ms. Chato worked in Teck Metals Ltd.’s Analytical Services Department Monday-Friday, 8.5 hours a day. She had Saturday and Sunday off. The parties refer to this as a “5&2” schedule. This schedule allowed Ms. Chato to balance her work and her caregiving responsibilities.
[7] Ms. Chato’s sister, JT, worked with Ms. Chato. JT worked a “4&4” eight-day shift set. She worked 11.4 hours four days in a row, followed by 4 days off. The parties refer to this as the “S-shift.” JT looked after Ms. Chato’s children on occasion when her schedule permitted it.
[8] In March 2020, the province of British Columbia declared a state of emergency because of the COVID-19 pandemic. Public health guidance at the time required anyone exhibiting COVID-19 symptoms to quarantine at home for 14-days starting from the first day of their symptoms.
[9] Around mid-March 2020, Ms. Chato got sick, and took sick leave for the quarantine period. She expected her first day back to work to be Thursday, March 26, 2020.
[10] While Ms. Chato was on sick leave, the province announced that schools were closed for in-person learning, and daycares would be closed. As a result, Ms. Chato’s children would be home full time.
[11] To address Ms. Chato’s immediate childcare needs, JT agreed to watch the children on Thursday, March 26, 2020, and Friday, March 27, 2020. Ms. Chato would watch the children on her regular days off, which were Saturday and Sunday. Ms. Chato had no childcare secured as of Monday, March 30, 2020.
[12] Ms. Chato and JT discussed the dilemma and brainstormed solutions. JT offered to assist with childcare if the Respondents agreed to change Ms. Chato’s shift such that it mirrored JT’s S-shift. This means that Ms. Chato would work the 4 days that JT was home, and vice versa. The parties refer to the mirroring shift as the “T-shift.”
[13] On March 23, 2020, Ms. Chato emailed her group lead to ask if there were discussions on how to accommodate employees who were suddenly without childcare. He responded asking for her thoughts on this. Ms. Chato raised a few possibilities, including temporarily going on a T-shift to mirror JT’s shift. Ms. Chato did not receive a reply.
[14] On Wednesday, March 25, 2020, the day before Ms. Chato’s expected return to work, the Respondents announced that all Teck Metals Ltd. employees would move to a 4&4 shift as part of their COVID risk mitigation strategy.
[15] Ms. Chato emailed Mr. Magner and said she heard about the new 4&4 schedule and asked when her shift change would be. She wrote, “I was thinking I would be working 8 hours the next two days to finish this work week, then have a shift change.” Mr. Magner notified Ms. Chato that her T-shift schedule would begin the next day, on her first day back at work. This shift would mirror JT’s shift. He wrote, “Ms. Chato. The first day of T-shift begins tomorrow. You are scheduled to work 11.4 hours each of the next 4 days. Thanks.”
[16] Ms. Chato notified Mr. Magner that the last-minute schedule change would leave her without childcare on the last two days of the schedule, which would have coincided with the Saturday and Sunday that she expected to have off had she returned to work on the 5&2 schedule. She said she would have to consult with JT to see if she could do 4 consecutive days of childcare instead of the two days they had previously arranged. She notified Mr. Magner that she sent the group lead a message on Monday with her idea about childcare but hadn’t heard back from him.
[17] Ms. Chato also brought up overtime for the shift change and union rules around notice to shift change. Ms. Chato followed up with her union representative. As a solution, she offered to work 11.4 hours for the next two days (Thursday and Friday). In lieu of what could have been 6.8 hours of overtime had she been on the regular 8-hour shift, she would take Saturday and Sunday with pay plus a credit of 3 days sick time.
[18] A few hours later, Mr. Magner notified her that he had, “worked with HR and the union to try and solve your situation,” and that, “as a group,” they decided that she would stay on the 5&2 schedule until later in April. This arrangement would not allow Ms. Chato to coordinate childcare with JT’s S-shift.
[19] Ms. Chato says she called Mr. Magner after receiving this email. She alleges that Mr. Magner told her that if the schedule did not work for her childcare needs, she could go on EI. Mr. Magner denies he said this.
[20] Ms. Chato spoke with HR and was given information about taking unpaid-COVID-19 leave.
[21] Throughout her communications with the Respondents and her union, Ms. Chato exchanged text messages with JT. JT wrote that she was not willing to look after Ms. Chato’s children that weekend. They discussed that Ms. Chato would have limited options for childcare if the Respondents left her on the 5×2 shift.
[22] On or around March 26, 2020, the Respondents were copied on Ms. Chato’s email to a union representative. In the email, Ms. Chato queried whether the Respondents had discussed or considered the scheduling options she had offered. She wrote that she would speak with JT about providing childcare support so that she could return to work on the Respondents’ proposed schedule.
[23] Ms. Chato worked on March 26, 2020, and March 27, 2020. On March 27, 2020, Ms. Chato advised the Respondents that she was taking unpaid-COVID-19 leave from March 30, 2020, to September 11, 2020. She returned to work on September 14, 2020.
III DECISION
A. Section 27(1)(c)
[24] The Respondents apply to dismiss Ms. Chato’s complaint on the basis that it has no reasonable prospect of success: Code,s. 27(1)(c) The onus is on the Respondents to establish the basis for dismissal.
[25] Section 27(1)(c) is part of the Tribunal’s gate-keeping function. It allows the Tribunal to remove complaints which do not warrant the time and expense of a hearing.
[26] The Tribunal does not make findings of fact under s. 27(1)(c). Instead, the Tribunal looks at the evidence to decide whether “there is no reasonable prospect that findings of fact that would support the complaint could be made on a balance of probabilities after a full hearing of the evidence”: Berezoutskaia v. British Columbia (Human Rights Tribunal) , 2006 BCCA 95 at para. 22, leave to appeal ref’d [2006] SCCA No. 171. The Tribunal must base its decision on the materials filed by the parties, and not on speculation about what evidence may be filed at the hearing: University of British Columbia v. Chan, 2013 BCSC 942at para. 77.
[27] This application also presents key issues of credibility. Many human rights complaints raise issues of credibility. This is not, by itself, a sufficient reason to deny an application to dismiss: Evans v. University of British Columbia, 2008 BCSC 1026 at para. 34. However, if there are foundational or key issues of credibility, the complaint must go to a hearing: Francescutti v. Vancouver (City), 2017 BCCA 242 at para 67.
[28] The Court of Appeal recently addressed the test for discrimination regarding family care giving responsibilities: British Columbia (Human Rights Tribunal) v. Gibraltar Mines Ltd , 2023 BCCA 168 [Gibraltar Mines]. In obiter , the Court said that, properly understood, the test for discrimination regarding family care giving responsibilities as set out in Health Sciences Assoc. of B.C. v. Campbell River and North Island Transition Society , 2004 BCCA 260 [Campbell River] , is consistent with the general test for a complainant’s case of discrimination mandated in Moore v. British Columbia (Minister of Education), 2012 SC 61 [Moore] (paras. 100, 102).
[29] When applying the Moore test to family status discrimination, the Court said “some elaboration” is required: Gibraltar at para. 89. In the context of this complaint, the Moore test can be stated as:
1. Does Ms. Chato’s responsibility for childcare arrangements engage the ground of family status?
2. Did she experience an adverse impact in employment? If so, did the adverse impact she experienced in employment constitute an adverse impact within the meaning of the Code?
3. Was her family status a factor in that adverse impact? For a family obligation, this connection is proven by establishing that the work requirement amounted to a serious interference with the family obligation.
Moore at para. 33; Gibraltar Minesat para. 101.
[30] If Ms. Chato proves this at a hearing, the burden would shift to the Respondents to justify the impact as a bona fideoccupational requirement or with a bona fidereasonable justification. If the impact is justified, there is no discrimination.
[31] A dismissal application is not the same as a hearing: Lord v. Fraser Health Authority, 2021 BCSC 2176at para. 20; SEPQA v. Canadian Human Rights Commission, [1989] 2 SCR 879 at 899. The threshold to advance a complaint to a hearing is low. In a dismissal application, a complainant does not have to prove their complaint or show the Tribunal all the evidence they may introduce at a hearing. They only have to show that the evidence takes their complaint out of the realm of conjecture: Workers’ Compensation Appeal Tribunal v. Hill, 2011 BCCA 49 at para. 27.
[32] The Respondents have not put the first element of this test in dispute. I therefore turn to the disputed issues of whether Ms. Chato has taken her allegation that there was an adverse impact out of the realm of conjecture, and whether the Respondents are reasonably certain to prove at a hearing that they accommodated Ms. Chato to the point of undue hardship.
1. Did Ms. Chato experience an adverse impact in employment within the meaning of the Code?
[33] Ms. Chato alleges that the adverse impact she experienced in employment is having to go on unpaid COVID-19 leave. The Respondents argue that Gibraltar Mines requires a complainant to establish a serious adverse impact amounting to a “real disadvantage,” and has made this element of the test for establishing the complainant’s case “more acute.” The Respondents say that Ms. Chato has no reasonable prospect of establishing that she experienced an adverse impact because she was not “forced” to go on unpaid leave because of their actions. They say she made the decision freely and voluntarily after considering the financial viability of taking unpaid leave with JT. The Respondents say Ms. Chato did not experience a “real disadvantage” in the circumstances.
[34] The Court in Gibraltar Mines commented on how to apply Moore when a complaint involves allegations of family status discrimination related to caregiving duties. It said,
In order to establish family status discrimination in the context of employment, the employee will have to do more than simply establish a negative impact on a family need. The negative impact must result in real disadvantage to the parent/child relationship and the responsibilities that flow from that relationship, and/or to the employee’s work. For example, a workplace rule may be discriminatory if it puts the employee in the position of having to choose between working and caregiving or if it negatively impacts the parent/child relationship and the responsibilities that flow from that relationship in a significant way: para. 97.
This reasoning is consistent with the Tribunal’s case law that states not all negative effects amount to discrimination under the Code. The issue of what constitutes adverse treatment or impact for the purposes of the discrimination analysis is determined contextually, having regard to the purposes of the Code: Bach v. BC Ministry of Finance, 2024 BCHRT 145; Miller v. Union of BC Performers, 2020 BCHRT 133 at para. 7; Brito v. Affordable Housing Societies and another, 2017 BCHRT 270 at paras. 41-46 and cases cited therein.
[35] In this context, Ms. Chato is a single mother who found herself with a conflict between her paid employment and her obligations to provide care for her children, without notice, when daycares were closed, and schools changed to virtual learning because of an unprecedented global pandemic. On the evidence before me, it is not speculative that her employer provided her with limited options on short notice to return to work after sick leave, when the province had announced that childcare services would be suspended for an unknown duration of time. I am satisfied that it not mere conjecture that Ms. Chato had a real disadvantage by being placed in a position of having to choose between working and caregiving.
a. Was her family status a factor in that adverse impact?
[36] Though the Respondents do not explicitly argue that Ms. Chato has not taken the connection between her family status and the adverse impact in employment out of the realm of conjecture, I will briefly address it. For a family obligation, this connection may be proven by establishing that the work requirement amounted to a serious interference with the family obligation. I am satisfied that it is not merely conjecture that the employer’s two options for Ms. Chato’s return to work meant that Ms. Chato was unable to secure adequate childcare for her children in the time provided. Her obligation to secure her young children’s childcare is an essential part of her obligation to her children; without childcare, her children’s wellbeing is at risk. I am satisfied that she has taken the connection between her family status and the adverse impact in employment out of the realm of conjecture.
a. Are the Respondents reasonably certain to prove at a hearing that they accommodated Ms. Chato to the point of undue hardship?
[37] To justify the two return to work options provided to Ms. Chato at a hearing, the Respondent would have to prove that: (1) they adopted the options for a purpose rationally connected to the legitimate purpose of maintaining a functioning Analytical Services Department and healthy workplace during the COVID-19 pandemic, (2) they adopted the standard in an honest and good faith belief that it was necessary to the fulfillment of that legitimate purpose; and (3) the standard is reasonably necessary to the accomplishment of that legitimate purpose. This third element encompasses their duty to accommodate Ms. Chato to the point of undue hardship: British Columbia (Public Service Employee Relations Commission) v. British Columbia Government and Service Employees’ Union (Meiorin Grievance), [1999] 3 SCR 3 at para. 54.
[38] Ms. Chato does not dispute the first two elements of this test. However, she does dispute that the Respondents are reasonably certain to prove they accommodated her to the point of undue hardship. For the reasons that follow, I agree with Ms. Chato.
[39] On this application, the Respondents’ argument concerns the final element. The Respondents argue that Ms. Chato does not have a reasonable prospect of establishing that they failed to take reasonable steps to accommodate her. The Respondents appear to misunderstand the burden of proof. At the justification stage, where the duty to accommodate falls, it is respondents who bear the burden of proving they accommodated a complainant to the point of undue hardship. On an application to dismiss, it is the respondents who must persuade the Tribunal they are reasonably certain to show they met their duty to accommodate. For the following reasons, I am not satisfied that they are reasonably certain to prove this at a hearing.
[40] It is not in dispute that the Respondents knew that Ms. Chato was a single mother with two young children, and that she needed to work hours that allowed her to balance work and caregiving responsibilities. For many years the Respondents and Ms. Chato worked together to create schedules that allowed her to work and manage her childcare responsibilities. It is also not in dispute that the Respondents knew that JT provided occasional childcare for Ms. Chato.
[41] The Respondents have provided evidence of the two options they explored. These two options were to either change Ms. Chato’s schedule to a T-shift, with one day’s notice, or maintain her 5&2 schedule until the end of April. During the ongoing conversations to accommodate the new shift schedule and Ms. Chato’s family caregiving responsibilities, Ms. Chato offered to finish her 5&2 shift, with her T-shift beginning on Monday, March 30, 2020, to coordinate with JT’s S-shift. This arrangement seems to have been in discussion with the union representative and the Respondents. Additionally, the evidence before me is that the Respondents put in place the same arrangement proposed by Ms. Chato for another employee who, similarly, was on sick leave due to quarantine in or around the same time as Ms. Chato. The extent to which the option proposed by Ms. Chato was explored by the Respondents is not apparent to me, nor is whether accepting Ms. Chato’s preferred accommodation would have caused the Respondents undue hardship.
[42] Concerning undue hardship, Mr. Magner states in his affidavit that this arrangement, “would have caused the Department some hardship as it was already short-staffed and removing another employee for a week would not have positioned the Department well for reporting results.” “Some hardship is acceptable” and expected when an employer seeks to satisfy their duty to accommodate: Renaud v. Central Okanagan School District No 23, [1992] 2 S.C.R. 970. Only undue hardship will satisfy the bona fide occupational requirement test. For the reasons previously state, I am not satisfied that the Respondents are reasonably certain to prove that they satisfied their duty to accommodate Ms. Chato to the point of undue hardship.
[43] The Respondents argue that Ms. Chato was seeking her “perfect accommodation,” when she is only entitled to a reasonable one. I understand Ms. Chato’s “perfect accommodation” would have been to work 11.4 hours on her first two days back from sick leave, with overtime pay in lieu of working Saturday and Sunday, and starting her T-shift on Monday, March 30, 2024. While this may have been Ms. Chato’s “perfect accommodation,” it may very well have also been one that did not impose undue hardship on the Respondents. The extent to which the proposal was considered, however, is not apparent to me. The Respondents are required to provide more than anecdotal or “impressionistic” evidence concerning the extent to which they could not accommodate Ms. Chato without undue hardship: Meiorin at para. 79. The Respondents have not satisfied me that they are reasonably certain to prove that Ms. Chato’s proposal was an unreasonable accommodation or that implementation of it would have amounted to undue hardship.
[44] The Respondents argue that Ms. Chato did not cooperate with the accommodation process because she did not notify Mr. Magner that “notwithstanding the limited notice she received of the new 4×4 schedule, it would still cause her hardship to remain on the 5×2 schedule temporarily.” I am not satisfied that the Respondents are reasonably certain to prove that Ms. Chato did not try to have a conversation about the option she presented, based on the hardship caused on remaining on the 5×2 schedule. On the materials before me, she raised concerns with the options available to her at least four times: once with the group leader, once with Mr. Magner on March 25, 2020, once to her union representative, and once to the HR representative. When she presented her preferred option to Mr. Magner, he did not respond to it directly, and said that her T-shift would begin on her first day returning from sick leave.
[45] The Respondents also argue that Ms. Chato had “resolved to remove herself from the accommodation process altogether.” They rely on the text messages between Ms. Chato and JT to reason that taking unpaid leave was Ms. Chato’s and JT’s “deliberate and voluntary” decision after they had considered the financial viability of doing so. They also rely on the texts to pinpoint the timing of her decision to go on unpaid leave. I am not persuaded that this evidence means that the complaint has no reasonable prospect of success. I am satisfied on the materials before me, including [JT’s] affidavit, that the text messages may not have encompassed the entirety of their discussions around childcare, especially considering that the sisters shared housing. As to whether JT’s stated commitment to watching Ms. Chato’s children should Ms. Chato have been permitted to start a 4×4 on Monday, March 30, 2024, is irreconcilable with the text messages between her and Ms. Chato, that is an issue of credibility and is best left to be tested in the course of an evidentiary hearing. There, JT’s evidence under oath and any “impugned documents [will be] subjected to rigorous and searching cross-examination; and where findings of fact and credibility can thereafter be made”: Dano v. Bee Clean Building Maintenance, 2014 BCHRT 52 at para. 56.
[46] The materials give different accounts as to what Mr. Magner discussed with Ms. Chato during their telephone conversations. I am not able to resolve on the materials before me whether he stated that her third option was to go on unpaid leave or whether he explained his rationale for suggesting she remain on the 5×2 schedule until the end of April 2020. This may all go toward Ms. Chato’s understanding that she was forced into going on unpaid leave. It is a credibility issue that goes to a material issue on this application that I cannot resolve on the materials before me. What was said during this conversation is best left to be tested in the course of an evidentiary hearing.
[47] In all the circumstances, I am not satisfied that there is no reasonable prospect the Respondents will establish that they accommodated Ms. Chato to the point of undue hardship.
B. S. 27(1)(d)(ii)
[48] The Respondents argue that it would not further the Code’spurposes to proceed against Mr. Magner: Daley v. BC (Ministry of Health), 2006 BCHRT 341 [Daley].
[49] There are strong policy reasons that favour complaints against individual respondents. As the Supreme Court of Canada has acknowledged, “the aspirational purposes of the Code require that individual perpetrators of discrimination be held accountable for their actions”: British Columbia Human Rights Tribunal v. Schrenk, 2017 SCC 62at para. 56. This is especially true for allegations of discrimination with a high degree of personal culpability, like sexual or racial harassment: Daley at para. 53.
[50] On the other hand, naming individual respondents can complicate and delay the resolution of complaints, exacerbate feelings of personal animosity, and cause needless personal distress to individuals who are accused of discrimination: Daley at para. 54. Because employers and institutional respondents are liable for the acts of their agents, they will be responsible for any remedy ordered by the Tribunal: Code, s. 44(2); Robichaud v. Canada, [1987] 2 SCR 84. In those situations, the remedial aims of the Codemay be most fairly and efficiently fulfilled without holding individuals liable.
[51] The Tribunal balances all these considerations to decide whether the purposes of the Code are best served by having a complaint proceed against individuals as well as an institutional respondent, or against the institutional respondent only. It has identified the following factors as relevant:
a. whether the complaint names an institutional employer as a respondent and that respondent has the capacity to fulfill any remedies that the Tribunal might order;
b. whether the institutional respondent has acknowledged the acts and omissions of the individual as its own and has irrevocably acknowledged its responsibility to satisfy any remedial orders which the Tribunal might make in respect of that individual’s conduct; and
c. the nature of the conduct alleged against the individual, including whether:
i. their conduct took place within the regular course of their employment;
ii. the person is alleged to have been the directing mind behind the discrimination or to have substantially influenced the course of action taken; and
iii. the conduct alleged against the individual has a measure of individual culpability, such as an allegation of discriminatory harassment.
Daleyat paras. 60-62.
[52] Ms. Chato does not dispute the first element of the test. I will address the last two factors in turn.
[53] Ms. Chato accepts that Teck Metals Ltd. has acknowledged the acts and omissions of Mr. Magner as its own and has irrevocably acknowledged its responsibility to satisfy any remedial orders which the Tribunal might make in respect of Mr. Magner’s conduct. However, Ms. Chato states that she would not be able to obtain non-monetary relief from Mr. Magner, specifically, the personal apology that she seeks from him. The Tribunal does not make orders for apologies, so I am not persuaded by this consideration.
[54] Ms. Chato alleges that Mr. Magner was “acting out of personal animus” against her. Ms. Chato asks the Tribunal to, “take into account the extensive background of tension, hostility and disagreement between the two individuals.” In particular, she cites the two union grievances she was involved in against Mr. Magner. She alleges that Mr. Magner made the decision to retroactively change her shift to 4&4 to avoid paying her overtime rates and to force her to find childcare on less than a day’s notice; Mr. Magner acted alone in his decision to change her shift back to a 5&2; Mr. Magner acted alone not to permit her to start the T-shift on Monday, March 30, 2020; Mr. Magner failed to contact her and arrange her shift to accommodate her childcare needs (as he committed to the union he would do on March 27, 2020), and; Mr. Magner was acting out of personal anger and retaliation against her.
[55] On the first consideration of the third factor of Daley , I am satisfied on the materials before me that Mr. Magner scheduling shifts was conduct consistent with his regular course of employment. This weighs in favour of dismissing the complaint against him.
[56] Respectfully, Ms. Chato’s allegations, including that he was acting alone and out of personal animus, anger, and retaliation to avoid accommodating her or paying her overtime, are merely speculative. The emails between the two of them before and after March 20, 2020, read as professional and collaborative. First, Ms. Chato asked when her shift would be changed to a 4×4. He said effective immediately. When she said she could not work the 4&4 effective immediately because of, among other things, childcare concerns, it appears that Mr. Magner consulted with other members of management, HR, and a representative of Ms. Chato’s union. It was after this consultation that he arranged her shift to remain on her 5&2 schedule. For these reasons, I am satisfied that he is not individually culpable, as contemplated in Daley, or acted out of personal animus, anger, and retaliation.
[57] On the balance of all these considerations, the purposes of the Code are not best served by having this complaint proceed against Mr. Magner.
IV CONCLUSION
[58] The complaint against Mr. Magner is dismissed.
[59] The application to dismiss the complaint against Teck Metals Ltd. is denied. The complaint against Teck Metals Ltd. will proceed. The parties agree that the context of the situation may have contributed to the events unfolding. Ms. Chato had filed multiple grievances against Mr. Magner, and their relationship, though professional, was strained. Additionally, the circumstances surrounding the start of the province’s response to the COVID-19 pandemic was unique and historic, and precipitated the events that give rise to this complaint. In that spirit, I encourage the parties to avail themselves of the Tribunal’s mediation services.
Laila Said Alam
Tribunal Member