Greenwood v. Werner Smith Mechanical Inc. and another, 2024 BCHRT 192
Date Issued: June 21, 2024
File: CS-002977
Indexed as: Greenwood v. Werner Smith Mechanical Inc. and another, 2024 BCHRT 192
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:
Mathew Greenwood
COMPLAINANT
AND:
Werner Smith Mechanical Inc. and Colin Pitt
RESPONDENT
REASONS FOR DECISION
APPLICATION TO DISMISS A COMPLAINT
Section 27(1)(c)
Tribunal Member: Ijeamaka Anika
On their own behalf: Mathew Greenwood
Advocate for the Respondents: Jennifer Applegath
I INTRODUCTION
[1] Mathew Greenwood worked for Werner Smith Mechanical Inc. [WSM] as a journeyman plumber until WSM terminated his employment in August 2020. Mr. Greenwood filed a complaint against his former employer WSM and its co-owner Colin Pitt [the Respondents ]. Mr. Greenwood alleges discrimination in employment on the basis of a physical or mental disability contrary to s. 13 of the Human Rights Code . Mr. Greenwood says that the Respondents terminated his employment when he sought to return to work after an illness.
[2] The Respondents deny discriminating and apply to dismiss the complaint under s. 27(1)(c) of the Code. The Respondents advance two arguments under s. 27(1)(c). First, they say that Mr. Greenwood has no reasonable prospect of proving he has a disability. Second, they argue that they are reasonably certain to establish that they terminated his employment for solely non-discriminatory reasons arising from his work performance. In the alternative, the Respondents apply to dismiss under s. 27(1)(d)(ii) on the basis that proceedings against the individual respondent – Mr. Pitt – would not further the purposes of the Code.
[3] I can most efficiently decide this application under s. 27(1)(c). My decision turns on whether there is no reasonable prospect Mr. Greenwood will prove he had a physical or mental disability at the material time. He alleges that he suffered a possible brain damage and a Methicillin-resistant Staphylococcus aureus [MRSA] infection. However, on the materials before me, I am satisfied that Mr. Greenwood has not taken his allegation of disability out of the realm of conjecture. Mr. Greenwood did not respond to the dismissal application, but I am satisfied he had notice of the application and an opportunity to respond.
[4] For the following reasons, I allow the application. 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.
[5] I apologize to the parties for the delay in issuing this decision.
II BACKGROUND
[6] Mr. Greenwood began employment with WSM in October 2019. His job required him to go to different client locations in his company van to resolve any plumbing issues as assigned by WSM. The Respondents say there was no written contract of employment, but that Mr. Greenwood was hired for a 3-month probationary period with an option for WSM to extend the contract to 6 months. The Respondents say they extended Mr. Greenwood’s probation period due to performance issues. This decision does not turn on the specific details of those performance issues.
[7] During his employment, Mr. Greenwood was absent from work on occasion. WSM says the reasons he provided during his absences included: an abscessed tooth, COVID-19 symptoms, a cough, sickness, and an MRSA infection in his legs. WSM says that sometimes he would not specify any illness.
[8] On July 13, 2020, Mr. Greenwood informed the Respondents that he was sick and going to the hospital. Later that day he notified the Respondents that he had been hospitalized.
[9] On July 14, 2020, Mr. Greenwood informed the Respondents that he was infected with MRSA in both legs and that he took a COVID-19 test and needed to quarantine for 48 hours or until he got the results of the test. Mr. Greenwood says he was eventually cleared by hospital staff to return home. The details of Mr. Greenwood’s illness or when hospital staff cleared him are unclear from the materials before me. It is also unclear if or when Mr. Greenwood returned to work after this illness.
[10] On July 21, 2020, Mr. Greenwood called and told Mr. Pitt that on July 17, 2020, he had a seizure at home and was taken to the hospital where he remained until he was discharged. He said his driver’s licence had been taken away pending determination of the cause of the seizure.
[11] On August 12, 2020, Mr. Greenwood informed Mr. Pitt in a text message that he was feeling better and would call him to provide an update on his “situation”. It is unclear what exactly his “situation” referred to. It is also unclear whether there was any further communication between Mr. Greenwood and the Respondents after this message until August 19, 2020, or if Mr. Greenwood returned to work.
[12] On August 19, 2020, Mr. Greenwood asked WSM for modified duties. At the time, Mr. Greenwood advised WSM that he could not drive and needed someone to drive him to jobsites. Mr. Greenwood says Mr. Pitt told him that he would think about it but that due to their COVID-19 safety policy he did not think this would be possible.
[13] On August 26, 2020, Mr. Pitt informed Mr. Greenwood in a telephone call that he had been dismissed due to ongoing performance issues; a slowdown in work due to COVID-19; and that due to their COVID-19 safety protocol, the Respondents could not have two employees in the same van.
III DECISION
[14] In this application, the onus is on the Respondents. 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.
[15] 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.
[16] 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.
[17] To prove his complaint at a hearing, Mr. Greenwood will have to prove that he has a characteristic protected by the Code, he was adversely impacted in employment, and his protected characteristic was a factor in the adverse impact: Moore v. British Columbia (Education) , 2012 SCC 61 at para. 33.
[18] Mr. Greenwood’s complaint is based on physical and mental disability. On the Complaint Form, Mr. Greenwood describes his disabilities as a “possible brain injury” and an “MRSA” infection.
[19] The Respondents argue Mr. Greenwood has no reasonable prospect of proving he has a physical or mental disability. I understand their argument to be that he has not taken the allegation of disability out of the realm of conjecture. They argue, among other things, that he has not provided any proof of a disability. They say they do not believe Mr. Greenwood was diagnosed with a physical or mental disability. They say Mr. Greenwood did not advise them that he was suffering from a disability before he commenced his employment, and the Respondents did not perceive him to have a disability. The Respondents also argue that Mr. Greenwood did not provide any medical evidence which could support his claim that he had developed a disability.
[20] On an application to dismiss under s. 27(1)(c), the Tribunal must assess the whole of the evidence to determine whether it takes the claim of disability out of the realm of conjecture: Gichuru at 275. Contrary to the Respondents’ argument, lack of medical evidence alone is not fatal to a claim of disability in a dismissal application: Gichuru v. Purewal and another, 2017 BCHRT 19 at para. 275.
[21] Whether a particular condition constitutes a disability within the meaning of the Codemust be determined based on the facts and circumstances of each case: Young v. Vancouver Coastal Health Authority and others , 2018 BCHRT 27 at para. 100. Although the Code does not define “disability”, it has been interpreted by the Tribunal to mean a “physiological state that is involuntary, has some degree of permanence, and impairs the person’s ability, in some measure, to carry out the normal functions of life”: Boyce v. New Westminster (City)(1994), 24 CHRR 441 at para. 50. The Tribunal also accepted that “an injury amounts to a disability where the injury limits an employee’s ability to work, requires an absence from work, is supported by medical evidence, or results in receipt of WorkSafe benefits for a period of time”: Osman v. Think Profit.com Inc. and another , 2021 BCHRT 89, at para 20 citing Derek v. Aspen Planer, 2018 BCHRT 266 at para. 42 and Pacheco v. Local Pest Control, 2019 BCHRT 191 at para. 28. The Tribunal has also said that it is not necessary that a disability be permanent for it to constitute a disability for the purpose of the Code. The Code’sprotection also extends to persons who suffer from temporarily disabling medical conditions: Goode v. Interior Health Authority , 2010 BCHRT 95. In other Tribunal cases where a complainant alleged disability, the Tribunal accepted as evidence of disability, the complainant’s own evidence of his medical condition and how it impacts his daily life, proof of disability benefits, approval of short or long-term disability support, and medical evidence: Wali v. Jace Holdings, 2012 BCHRT 389; Derek; Pacheo.
[22] The evidence before me on the issue of disability is limited. As noted above, Mr. Greenwood did not respond to the application to dismiss. The materials before me are limited to what Mr. Greenwood set out in his complaint form, as well as the application materials filed by the Respondents. It bears repeating that on an application to dismiss under s. 27(1)(c), 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.
[23] In the complaint form, Mr. Greenwood identifies two medical conditions: possible brain damage and an MRSA infection. While it is possible that both of these medical conditions could meet the criteria for disability under the Code, on the materials before me, I am unable to conclude that Mr. Greenwood has taken his allegations out of the realm of conjecture in the circumstances of this case.
[24] I begin with the allegation of “possible brain damage”.
[25] In his complaint, Mr. Greenwood says he was admitted to hospital due to a seizure from a possible brain injury. He says hospital staff were concerned that he may have brain damage. Mr. Greenwood also says he was subsequently cleared of any permanent brain injury. He says his driver’s license was revoked in the interim until he completed a follow up exam at an Outpatient centre (though the sequence of these events is unclear from the Complaint Form). I accept that there is evidence before me supporting the assertion that the condition is an involuntaryphysiological state. In the Complaint Form, Mr. Greenwood alleges that he had a seizure and was admitted to hospital.
[26] However, regarding the degree of permanence, the evidence before me is more limited and suggests that the condition was temporary in nature. Mr. Greenwood says he was hospitalized due to illness but was “cleared of having irreparable damage” a few days later. Mr. Greenwood does not provide any further information on the degree of permanence of the condition.
[27] Regarding the impact on his ability to carry on the normal functions of life, the evidence before me is also sparse. Mr. Greenwood says he informed the Respondents that his driver’s license was taken away due to an alleged seizure. It is unclear if his license was taken away temporarily pending his follow up medical examination at the Outpatient Centre, or whether it was returned to him later.
[28] Mr. Greenwood does not provide any other evidence on the continued impact of the illness on the functions of his life. There is no evidence before me on whether Mr. Greenwood condition resolved by the time of his follow-up exam or whether the alleged illness persisted. Mr. Greenwood’s evidence is that he recovered after his hospital stay. Mr. Greenwood states that he was “cleared of having irreparable damage” a few days later, although there are no materials in this regard.
[29] I now turn to the alleged MRSA infection. Similar to the alleged brain damage, there is no evidence before me as to the impact of the MRSA infection on Mr. Greenwood. He says he was infected with MRSA in both legs, and I also accept that there is evidence before me supporting the assertion that the condition is an involuntaryphysiological state. However, Mr. Greenwood does not provide further evidence in that regard. On the other factors the Tribunal considers in determining whether an allegation of disability is out of the realm of conjecture, there is no evidence before me concerning the degree of permanenceof the MRSA infection, its impact on his ability to carry on the normal functions of life, or its continued impact on Mr. Greenwood’s life.
[30] Even on the low threshold required at this stage, Mr. Greenwood’s evidence based on the limited information on his Complaint Form is not sufficient evidence to take his claim of disability out of the realm of conjecture. As stated above, 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: Chan, at para. 77.
[31] The evidence before me does not take the first element of the Mooretest out of the realm of conjecture. I am satisfied there is no reasonable prospect Mr. Greenwood will prove his case at a hearing.
IV CONCLUSION
[32] The complaint is dismissed.
Ijeamaka Anika
Tribunal Member