Anderson v. YWCA Metro Vancouver and another, 2024 BCHRT 195
Issued: June 26, 2024
File: CS-002061
Indexed as: Anderson v. YWCA Metro Vancouver and another, 2024 BCHRT 195
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:
Shelly Anderson
COMPLAINANT
AND:
YWCA Metro Vancouver and Tina Hurd
RESPONDENTS
REASONS FOR DECISION
APPLICATION TO DISMISS A COMPLAINT
Section 27(1)(c)
Tribunal Member: Edward Takayanagi
On their own behalf: Shelly Anderson
Counsel for the Respondents: Kacey Krenn, Abigail Cheung
I INTRODUCTION
[1] Shelly Anderson was enrolled in the YWCA Changing Gears program, a 23-week course where participants train to obtain a Class 1 driving certificate. Ms. Anderson alleges the YWCA and her instructor, Tina Hurd, discriminated against her contrary to s. 8 of the Human Rights Code because they perceived her to have a physical and mental disability. Ms. Anderson says the Respondents mocked her during a class exercise and removed her from the program.
[2] The Respondents deny discriminating. They deny mocking Ms. Anderson. They say they removed Ms. Anderson from the program for reasons unrelated to Ms. Anderson’s protected characteristics but rather because she did not attend mandatory hours of training. They apply to dismiss the complaint under 27(1)(c) and (d)(ii) of the Code.
[3] For the reasons below, I am satisfied that there is no reasonable prospect Ms. Anderson could establish that her protected characteristics were a factor in the Respondents’ conduct. The Respondents have provided undisputed documentary evidence to support their position that they did not mock Ms. Anderson and that Ms. Anderson failed to attend mandatory training sessions. Therefore, I am persuaded the Respondents are reasonably certain to establish that they had legitimate non-discriminatory reasons for their actions. I find there is no reasonable prospect Ms. Anderson would be able to establish that there is a connection between her protected characteristics and the adverse impact alleged. As such, I dismiss Ms. Anderson’s complaint under s. 27(1)(c).
[4] 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] The YWCA is a non-profit organization. Among other things, it operates the Changing Gears truck-driving training program. The program offers participants an opportunity to receive training to obtain a Class 1 driver’s license. The program consists of classroom training, occupational skills training, and on-the-road driving experience. Attendance and participation are mandatory for participants. Participants are required to complete 80 hours of driving experience before registering for an ICBC road test.
[6] Tina Hurd is Changing Gears’ program manager.
[7] Ms. Anderson was accepted into the program for the session running from March 23 to August 31, 2020.
[8] On May 6, 2020, there was a class exercise where participants would sequentially relay information about a fictional scenario to one another in a manner similar to the game of telephone. The instructor would give a scenario to the first student and each student would retell the scenario to the next person. At the end of the exercise the original scenario and the final retold scenario would be compared. The purpose of the exercise was to teach active listening skills and demonstrate how miscommunication can arise. During the exercise a character from the scenario named “Sally” became changed in the retelling to “Shelly”. Ms. Anderson alleges that the scenario was based on her, and the exercise was designed to mock her.
[9] During the program Ms. Anderson missed several scheduled driving sessions, cancelled other sessions, and ended some sessions early on several occasions. As a result, the Respondents calculated that there was no way that Ms. Anderson could complete her required 80 hours of driving experience before the end of the program.
[10] On August 21, 2020, the Respondents removed Ms. Anderson from the Changing Gears program.
III PROCEDURAL MATTERS
[11] On May 30, 2022, the Respondents filed an application to dismiss the complaint. The Tribunal set a submission schedule and Ms. Anderson was given until June 29, 2022, to provide a response to the dismissal application.
[12] On June 29, 2022, Ms. Anderson wrote the Tribunal requesting an extension of time due to medical issues. The Tribunal extended the deadline for Ms. Anderson to file a response to July 13, 2022.
[13] On July 7, 2022, Ms. Anderson called the Tribunal and requested a further extension of time to file a response. The Tribunal granted Ms. Anderson’s request and extended the deadline to August 8, 2022.
[14] On July 29, 2022, Ms. Anderson emailed the Tribunal and the Respondents saying she would not be filing a response to the application and that “the content [she has] submitted previously will be the information the tribunal will be used in this case [sic].”
[15] I am satisfied that Ms. Anderson has been given a full opportunity to respond to this application to dismiss the complaint and has chosen not to provide new submissions. Instead, she directs the Tribunal to her previously filed information. In making my decision I have considered Ms. Anderson’s complaint which is the only material previously filed. I find no breach of the principles of procedural fairness to proceed on the basis of the materials before me.
IV ANALYSIS
[16] The Respondents apply to dismiss Ms. Anderson’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.
[17] 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.
[18] 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 942 at para. 77.
[19] A dismissal application is not the same as a hearing: Lord v. Fraser Health Authority, 2021 BCSC 2176 at 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.
[20] To prove her complaint at a hearing, Ms. Anderson will have to prove that she has a disability protected by the Code or the Respondents perceived that she had a disability protected by the Code, she was adversely impacted in Changing Gears, and her disability or perceived disability was a factor in the adverse impact: Moore v. British Columbia (Education), 2012 SCC 61 at para. 33.
[21] The Respondents do not make submissions on the first two elements of Moore. The issue for me to decide on this application is whether there is no reasonable prospect that Ms. Anderson can establish at a hearing that her protected characteristics were a factor in the class exercise and the Respondents’ decision to remove her from the training program.
[22] I deal first with the allegation that Ms. Anderson was mocked during a class exercise.
[23] As I understand from her complaint, Ms. Anderson alleges that a character in the class exercise had a name similar to hers and was portrayed as having a mental health issue so she must have been modeled on her to mock her disability.
[24] The Respondents deny that the character in the scenario was based on Ms. Anderson or that the scenario involved a mental health issue. They say the exercise is designed to teach active listening skills and demonstrate how easily misunderstandings can arise by having students play a game of telephone and relay information about a fictional scenario. They say the scenario is wholly fictional and not based on any person.
[25] While there is little before me to support Ms. Anderson’s allegations, the Respondents provided documentary materials, including affidavits from course instructors, inconsistent with Ms. Anderson’s assertion that they based a character in a training scenario on her. The Respondents submit the course curriculum and written instructions for the scenario which show that there is no indication the character of “Sally” is intended to be portrayed as having a mental health issue. The Respondents say that the scenario that is given to the first student simply states the character of “Sally” is having interpersonal issues. They say the instructor’s role is limited to giving the scenario to the first student and the details of the scenario change through the course of retelling among the students. The Respondents acknowledge that the name of the character “Sally” was changed during the exercise to “Shelly” but say it was Ms. Anderson who replaced Sally’s name with her own.
[26] Furthermore, the Respondents submit that the scenario is part of their training curriculum that was created prior to Ms. Anderson’s participation in the program.
[27] Based on the materials before me, I am not persuaded that Ms. Anderson’s allegations that the Respondents created a training scenario to mock her protected characteristics has been taken out of the realm of conjecture and speculation. While the Respondents acknowledge that during the exercise a character began to be called by Ms. Anderson’s first name, the evidence before me is that this was done by Ms. Anderson. When viewed in light of the documentary evidence of the training scenario not mentioning mental health issues and the Respondents’ submission that the scenario predates Ms. Anderson’s enrollment in the program, there is no reasonable prospect the Tribunal would find after a full hearing that the training scenario was designed or conducted to mock Ms. Anderson’s disability or perceived disability.
[28] I next deal with the allegation that Ms. Anderson was removed from the program due to discriminatory reasons. I understand from her complaint that Ms. Anderson is alleging that she was not able to complete the program because she was denied necessary hours of driving due to the Respondents perceiving her to have a physical or mental disability. It is not clear to me based on Ms. Anderson’s complaint, what mental or physical disability she is alleging the Respondents perceived her to have.
[29] Based on the information and materials before me at this stage, in my view there is no reasonable prospect the Tribunal would find after a full hearing that Ms. Anderson’s perceived physical or mental disability was a factor in the Respondents’ decision to remove her from the training program.
[30] The Respondents submit documentary materials including the program requirements, training schedule, hours of driving completed by Ms. Anderson, and correspondence with Ms. Anderson about her attendance and rescheduling training sessions. While there is some materials that show Ms. Anderson cancelled sessions due to doctor’s appointments or not feeling well, the documentary evidence supports the Respondents’ assertion that most of the cancelled sessions were for non-medical issues including:
· On May 28, 2020, Ms. Anderson cancelled a session after arriving 30 minutes late because she was feeling tired.
· On June 9, 2020, Ms. Anderson cancelled a session when she became upset that the instructor asked her if a vehicle’s broken mirror was safe.
· On June 10, 2020, Ms. Anderson cancelled a session so she could locate comfortable PPE to wear during her session.
[31] The Respondents further say that Ms. Anderson missed training sessions without excuse on a number of occasions. While the Respondents concede that on some occasions Ms. Anderson gave a medical reason for why she could not attend her session, they say she did not raise that she had a disability and simply said she has a sore throat, feels tired, doesn’t feel up to training, or that she feels unwell.
[32] While the Code does not define what constitutes a disability, ailments such as the common cold or flu which is temporary, treatable and does not constitute an obstacle to full participation in society are not considered disabilities: Québec (Commission des droits de la personne et des droits de la jeunesse) v. Boisbriand (City), 2000 SCC 27at para. 82.
[33] Because Ms. Anderson does not say what disability she was perceived as having by the Respondents, I cannot say the instances where she says she could not attend her driving sessions because she was not feeling well is related to her disability or perceived disability.
[34] The Respondents say they attempted to reschedule Ms. Anderson’s training sessions on a number of occasions, but Ms. Anderson would cancel or fail to attend those rescheduled sessions as well. The Respondents say that as of August 20, 2020, Ms. Anderson still needed to complete approximately 40 hours of driving experience to have the 80 hours necessary for a road test. They say they could not reasonably schedule her for the necessary hours of driving experience before August 31, 2020, when the program ends. Consequently, the Respondents decided to remove Ms. Anderson from the program.
[35] I am persuaded that there is no reasonable prospect that Ms. Anderson could succeed in establishing that there is a connection between her protected characteristics and the adverse impacts when viewed in light of the entirety of the evidence, and in particular the Respondents’ evidence of Ms. Anderson’s training attendance. The evidence before me is that Ms. Anderson failed to attend the required hours of training and as a result the Respondents decided to remove her from the program. Even if I were to accept that some of the absences were due to medical issues, because Ms. Anderson does not state what disability she was perceived as having by the Respondents, I cannot say that Ms. Anderson’s protected characteristics were a factor in the Respondents’ decision. In this context, the assertion that Ms. Anderson’s physical and mental disability or perceived disability were a factor in the Respondents’ decision to remove her from the program has not been taken out of the realm of mere conjecture. Accordingly, I dismiss the complaint under s. 27(1)(c).
V CONCLUSION
[36] I allow the application for the Respondents and dismiss the complaint under s. 27(1)(c) of the Code.
Edward Takayanagi
Tribunal Member