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AB v. City, 2024 BCHRT 196

Date Issued: June 26, 2024
File: CS-000890

Indexed as: AB v. City, 2024 BCHRT 196

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:

AB
COMPLAINANT

AND:

City
RESPONDENT

REASONS FOR DECISION
APPLICATION FOR ORDER TO LIMIT PUBLICATION AND TO DISMISS A COMPLAINT
Rule 5 and Sections 27(1)(b)(c),(g)

Tribunal Member: Christopher J. Foy
On their own behalf: AB
Counsel for the Respondent: Gabrielle M. Scorer and Jacqueline D. Gant

I INTRODUCTION

[1] AB filed a complaint against the City alleging discrimination in his employment based on physical disability contrary to the Human Rights Code.

[2] AB commenced employment with the City on August 29, 2005 a Business Analyst 2 in the City’s Information Technology Department, primarily working as a SAP Basis Administrator. AB’s allegations involve the City’s failure to accommodate his eye and spinal conditions. AB says that the City ignored his doctors’ recommendations, failed to accommodate him, denied him sick leave and vacation benefits, did not pay him on the correct salary scale, harassed and bullied him, and fabricated discipline to ultimately terminate his employment on April 20, 2020.

[3] The City denies discriminating and applies to dismiss the complaint. The City argues that there is no reasonable prospect the complaint will succeed at a hearing. The City argues that it reasonably accommodated AB and is reasonably certain to prove that it has a solely non-discriminatory explanation for terminating him: AB’s failure to respond to corrective progressive discipline involving his conduct in the workplace. The City argues that on the whole of the evidence, AB has not taken his allegations out of the realm of speculation and conjecture.

[4] The issues I must decide on this application are whether:

1. AB’s complaint is late filed and, if so, whether it is in the public interest to accept the complaint, and there is no substantial prejudice from the delay;

2. there is no reasonable prospect AB will establish at a hearing that he was adversely impacted in his employment and that his physical disability was a factor in that adverse treatment; and

3. it is reasonably certain the City will establish it met its duty to accommodate AB.

[5] While I do not refer in my decision to all the information filed by the parties in relation to this application to dismiss, I have considered it and thank the parties for their respective submissions. The following will not be a complete recitation of the parties’ submissions, but only those necessary to come to my decision.

[6] I begin with AB’s application for an order to limit publication of personal information. I will then set out the background to the complaint. Finally, I set out my reasons for granting the City’s application to dismiss the complaint, in part.

II ORDER TO LIMIT PUBLICATION

[7] AB applies for an order to limit publication of personal information in the complaint file. The City made no submissions on AB’s application to limit publication.

[8] Complaints at the Tribunal are presumptively public: Mother A obo Child B v. School District C, 2015 BCHRT 64 at para. 7. This openness serves four main goals: maintaining an effective evidentiary process, ensuring that Tribunal members act fairly, promoting public confidence in the Tribunal, and educating the public about the Tribunal’s process and development of the law: Edmonton Journal v. Alberta (Attorney General), [1989] 2 SCR 1326 at para. 61; JY v. Various Waxing Salons, 2019 BCHRT 106 at para. 25. These goals align with the purposes of the Code, which include fostering a more equitable society and identifying and eliminating persistent patterns of inequality: Code, s. 3. The main way that the Tribunal furthers these purposes is through its public decisions: A. v. Famous Players Inc., 2005 BCHRT 432 at para. 14.

[9] The Tribunal has discretion to limit publication of identifying information where a person can show their privacy interests outweigh the public interest in full access to the Tribunal’s proceedings: TribunalRules of Practice and Procedure [Rules], Rule 5(6); Stein v. British Columbia (Human Rights Tribunal), 2020 BCSC 70 at para. 64(a). The Tribunal may consider factors like the stage of the proceedings, the nature of the allegations, private detail in the complaint, harm to reputation, or any other potential harm: JYat para. 30. It may also consider whether the proposed limitation relates to only a “sliver” of information that minimally impairs the openness of the proceeding: CS v. British Columbia (Workers’ Compensation Appeal Tribunal), 2019 BCCA 406 at para. 37. It is not enough to just assert that a person’s reputation may be tarnished: Stein at para. 64(c).

[10] Here, the complaint includes allegations of discrimination on the basis of physical disability. The materials before me include a significant amount of medical documentation, including several Independent Medical Examination [IME] reports concerning AB’s physical and psychological condition. When AB applied for the order to limit publication on May 6, 2020, he had been recently terminated from the City and says: “Please limit my full name from the publication of information for my future sake.”

[11] Although there is no evidence to support an assertion that publication of AB’s name could affect his livelihood or future, in these particular circumstances I am satisfied that AB’s privacy interests in his medical information outweighs the public interest in his name.

[12] In my view restricting publication of his name minimally impairs the openness of this proceeding as the public will still be able to understand the complaint, and the Tribunal’s decision, without knowing his name.

[13] In addition, I find that publication of the City’s identity could potentially operate to identify AB because of their employment relationship. This proposed limitation relates to only a “sliver” of information that minimally impairs the openness of the proceeding.

[14] Finally, another factor which weighs in favour of anonymization is the early stage of the proceedings.

[15] Accordingly, I grant AB’s application to anonymize his name and I also find it is appropriate to anonymize the City in this application. I order that names and identifying details be removed from any other material related to this case made public by the Tribunal. This order will expire at the commencement of the hearing of the complaint, at which point AB will be able to bring a further application if he wishes to extend it.

III BACKGROUND

[16] The following background summary is taken from the parties’ submissions. I make no findings of fact.

A. The Parties

[17] AB was employed with the City for approximately 15 years. The City is a unionized workplace and AB at all material times was a member of a CUPE local [Union]. As such AB’s employment was subject to the terms of a collective agreement between the City and the Union.

[18] AB’s position as a Business Analyst 2 was sedentary in nature, involving monitoring technical systems via a computer. He was on a “9 day fortnight bi-weekly schedule (70 hours bi-weekly)”. This schedule has significance as the City says that AB must maintain it in order to qualify for sick leave benefits.

[19] AB suffers from keratoconus, an eye condition affecting the cornea. In 2007, he underwent a cornea transplant in both eyes followed by several laser eye treatments to correct his vision.

[20] In October, 2014, AB suffered a significant spinal disc herniation. The Workers’ Compensation Appeal Tribunal found that AB’s degenerative disc disease and disc herniation was aggravated by his forward-flexed seating position while working for the City and granted him benefits.

[21] AB was absent from work for approximately three and a half years between October 6, 2014 and April 20, 2020. These absences were a result of a combination of things including his spinal condition, gradual return to work [GRTW] with reduced hours, periods of paid administrative leaves, vacation and unpaid leaves.

[22] The City has a Respectful Workplace Policy which is designed to promote a work environment that is safe, respectful, and free from bullying and harassment [Policy].

[23] The City issued the following discipline to AB for breaching the Policy:

i. January 20, 2016: one-day suspension without pay

ii. October 27, 2017: three-day suspension without pay

iii. June 20, 2019: 10-day suspension without pay

iv. April 23, 2020: termination of employment

B. The Complaint

[24] AB originally filed his complaint on April 20, 2020. In May, 2020, AB amended the complaint and added additional allegations which the Tribunal accepted for filing.

[25] In February, 2021, AB filed another amendment as well as an application to add the Union and the Union President as parties. The Tribunal did not accept these for filing and they do not form part of the complaint.

[26] There are several allegations in AB’s complaint which can be summarized as follows:

a. The City failed to accommodate his eye condition by ignoring “two recommendations from my eye surgeon 10 years ago”;

b. The City failed to accommodate his spinal condition by, amongst other things, not having a space for him to lie down and having him work more than five hours per day contrary to recommendations from his doctor;

c. The City “harassed and bullied” him by:

i. Removing him from his work team and forcing him to report to a supervisor who was a “spy” for the City;

ii. Suspending him for “ridiculous reasons”;

iii. Bribing doctors to have them create “fake reports” that negatively impacted him; and

iv. Treating white and non-white employees differently

d. The City denied him sick benefits because “I take irregular breaks”;

e. The City denied his vacation benefits because it did not include all his leaves of absence in calculating his years of service;

f. The City ignored his reclassification request to pay him at the correct salary scale and provide retroactive pay; and

g. The City terminated his employment because of his physical disability

IV DECISION

A. Preliminary Issue – Sur-Reply

[27] The City asks the Tribunal to reject a sur-reply submitted by AB for filing.

[28] The Tribunal may accept further submissions where fairness requires that a party be given an opportunity to respond to new issues raised in reply: Rule 28(5); Kruger v. Xerox Canada Ltd (No. 2), 2005 BCHRT 24 at para. 17; or to address new information not available to the party when they filed their submission: Rule 28(6). The overriding consideration is whether fairness requires an opportunity for further submissions: Gichuru v. The Law Society of British Columbia (No. 2) , 2006 BCHRT 201, para. 21.

[29] Where there is no unfairness to a party, it is in the Tribunal’s and the parties’ interest that the Tribunal make decisions based on the submissions of the parties. I see no unfairness here, largely because of the outcome of the City’s application to dismiss. I therefore allow the application to file the sur-reply.

B. Should the complaint be dismissed under s. 27(1)(g) of the Code?

[30] There is a one-year time limit for filing a human rights complaint: Code,s. 22. Section 22 is meant to ensure that complainants pursue their human rights remedies promptly so that respondents can go ahead with their activities without the possibility of a dated complaint: Chartier v. School District No. 62, 2003 BCHRT 39 at para. 12. Section 27(1)(g) permits the Tribunal to dismiss a late-filed complaint.

[31] A complaint is filed in time if the last allegation of discrimination happened within one year, and older allegations are part of a “continuing contravention”: Code, s. 22(2); School District v. Parent obo the Child , 2018 BCCA 136 at para. 68. A continuing contravention is “a succession or repetition of separate acts of discrimination of the same character” that could be considered separate contraventions of the Code, and “not merely one act of discrimination which may have continuing effects or consequences”: Chen v. Surrey (City),2015 BCCA 57 at para. 23; School District at para. 50.

[32] The assessment of whether discrete allegations are a continuing contravention is a “fact specific one which will depend very much on the individual circumstances of each case”: Dickson v. Vancouver Island Human Rights Coalition, 2005 BCHRT 209 at para. 17. A relevant consideration is whether there are significant gaps between the allegations: Dickson at paras. 16-17. Whether or not a gap is significant will be assessed contextually, considering the length itself and any explanations for the gap: Reynolds v Overwaitea Food Group, 2013 BCHRT 67, at para. 28. A significant, unexplained, gap in time will weigh against finding a continuing contravention: Bjorklund v. BC Ministry of Public Safety and Solicitor General, 2018 BCHRT 204 at para. 14.

[33] The City acknowledges that AB’s allegations regarding the accommodation of his spinal condition from 2014-2020 constitute an alleged continuing contravention.

[34] The City argues that the following allegations in the complaint are late filed and should be dismissed under s. 27(1)(g) of the Code:

a. Approximately 10 years ago, the City failed to accommodate AB’s eye injury; and

b. The City failed to reclassify AB’s position and place him at a higher salary scale.

[35] In the alternative, the City relies on 27(1)(b) of the Code and argues that AB’s allegation that they failed to reclassify his position and place him on a higher salary scale in no way contravenes the Code.

[36] The complaint was filed on April 20, 2020. To comply with the one-year time limit under s. 22(1) or 22(2) of the Code, an alleged instance of discrimination would have to have occurred on or after April 20, 2019. I will deal first with the City’s arguments regarding AB’s eye condition then the reclassification issue.

i. Eye Condition

[37] The City points out, and AB sets out in his complaint, that the City’s alleged failure to accommodate his eye condition occurred approximately 10 years ago. I would not exercise my discretion to accept AB’s complaint regarding a failure to accommodate his eye condition under s. 22(3) of the Code as it is not in the public interest to do so.

[38] The delay is substantial which weighs against accepting of the complaint: Davy v. Northern Health Authority 2019 BCHRT 288 at para. 15. Further, AB has provided no reasons for the delay. There is also nothing particularly unique, novel, or unusual about AB’s complaint that has not been addressed in other complaints before the Tribunal. It is common for the Tribunal to hear many cases concerning discrimination in employment on the basis of physical disability under the Code.

[39] Considering the information before me, and in particular because of the length of the delay, the absence of any persuasive reason for the delay, and the lack of any other factors that would render it in the public interest to accept the complaint regarding the eye condition allegations against the City, I decline to exercise my discretion to accept this aspect of the complaint against the City for filing. I therefore need not consider the issue of substantial prejudice.

ii. Reclassification Issue

[40] AB alleges that the City has been discriminating against him in his wage rate for approximately the past 13 years, since 2007. He says the work he was doing didn’t reflect the appropriate paygrade and he should have been at a higher paygrade. AB alleges that the Union never represented him with respect to this issue. He says he put in an official Salary Reclassification Request on February 21, 2020 which was ignored by the City.

[41] The City says that this reclassification allegation is more than a decade out of time with no continuing contravention. Next, that even if it was timely, AB has failed to indicate how not reclassifying his position in any way constitutes discrimination under 27(1)(b) of the Code .

[42] I prefer to dismiss this part of AB’s complaint based on 27(1)(b), as there are no alleged facts related to his salary reclassification issue that could, if proven, contravene the Code.

[43] In this case, AB must set out facts that, if proved, could establish 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 at para. 33 .

[44] First, for the purposes of this decision regarding the reclassification issue I will assume that there are some facts capable of proving he is protected from discrimination based on physical disability.

[45] Next, being underpaid can be an adverse impact in employment.

[46] However, AB has failed to set out any facts to allege how his physical disability was a factor in the City’s failure to reclassify his position and place him on a higher wage scale.

Conclusion

[47] The City’s application to dismiss AB’s complaint regarding allegations of a failure to accommodate his eye condition is granted under s.27(1)(g) of theCode. AB’s allegations that the City discriminated against him by failing to properly reclassify his position and place him on a higher salary scale are dismissed as this part of the complaint as alleged could not amount to a contravention of the Code .

C. Should the complaint be dismissed under s. 27(1)(c) of the Code ?

[48] Section 27(1)(c) of the Code is a gatekeeping provision where the Tribunal has the discretion to dismiss a complaint if it determines that the complaint has no reasonable prospect of success. The Tribunal’s role is to assess whether, based on all the material before it, and applying its expertise, there is no reasonable prospect the complaint will succeed at a hearing: Berezoutskaia v. British Columbia (Human Rights Tribunal) , 2006 BCCA 95 at paras. 9 and 27; Workers’ Compensation Appeal Tribunal v.Hill, 2011 BCCA 49 at para. 27 [Hill].

[49] To be successful under s. 27(1)(c), the burden is on the respondent to show there is no reasonable prospect of the complaint succeeding. This may be established in two ways. First, if the Tribunal determines there is no reasonable prospect that the complainant will be able to establish one or more elements of the complaint at a hearing, it may dismiss the complaint. The threshold for proceeding to a hearing is low. In circumstances where the respondent disputes one of these elements, the complainant’s only obligation is to point to some evidence capable of raising their complaint “out of the realm of conjecture”: Hill at para. 27.

[50] Second, the Tribunal may consider a defence in an application under s. 27(1)(c): Trevenav.Citizens’ Assembly on Electoral Reform and others, 2004 BCHRT 24 at para. 67. Section 13(4) of the Code sets out circumstances within which a respondent may prove their actions are justified based on a bona fide occupational requirement [BFOR]: British Columbia (Public Service Employee Relations Commission) v.B.C.G.S.E.U.[1999] 3 S.C.R. 3 at para. 54 [Meiorin]. This test includes establishing that the respondent discharged its duty to reasonably accommodate the complainant’s disability.

[51] If it is reasonably certain that a respondent will establish a defence at a hearing of the complaint, then there is no reasonable prospect that the complaint will succeed: Purdyv.Douglas College and others, 2016 BCHRT 117 at para. 50.

[52] I will first address whether the City has met their onus to show there is no reasonable prospect of the complaint succeeding regarding AB’s allegations of bullying and harassment, followed by the allegation that his employment was terminated because of his physical disability. I will then deal with AB’s allegations that the City denied him vacation and sick leave benefits. Finally, I will address whether the City is reasonably certain to establish it met the duty to accommodate AB’s disability.

1. Bullying & Harassment

[53] The Code does not protect people from general bullying and harassment. Not every employment bruise falls within the scope of the Code’s protections. The Code only protects individuals from bullying and harassment that is connected to a protected characteristic: Complainant v. Douglas College and another, 2019 BCHRT 5 at para 40; Curtis v. Fraternal Order of Eagles and others, 2012 BCHRT 45 ; Seyed-Ali v. Central City Brewers and Distillers Ltd. (No. 3), 2021 BCHRT 28 at para. 144.

[54] AB alleges that the City bullied and harassed him in a number of ways which I will address as follows:

i. Removing AB from his work team and forcing him to report to a “spy”

[55] AB alleges that the City, in particular the City’s Human Resources department [HR] and the Information Technology department [IT], were “revenging” against him because he filed a WorkSafe BC claim in 2016 regarding his spinal condition which WorkSafe accepted in 2019.

[56] AB alleges that the City “punished” him for filing a WorkSafe claim and removed him from his former team, gave him work to do that was menial with limited security access, and forced him to report to a supervisor he considered a “spy” for Human Resources.

[57] The City says that during the material time, there were a number of personnel and operational changes in the IT department and AB was given meaningful work within his job description. In addition, there had been a Respectful Workplace Policy complaint involving AB and another member of the IT department which the City managed, in part, by separating the two. The City acknowledged that AB did not get along with his supervisor but denies that the supervisor was a “spy” for HR. Further, any changes in security access were across the entire City staff and IT department and did not just affect AB.

[58] AB argues that he “will provide evidence” that his supervisor was a “spy” who told lies and that by forcing AB to report to this supervisor, HR’s plan was a “set up” to terminate him. I can only consider information that is before me; I cannot consider what additional evidence might be given if there is a hearing: University of British Columbia v. Chan , 2013 BCSC 942 at para. 77.

[59] AB says that it was illogical for him as a SAP Basis Administrator to report to a supervisor who is a developer.

[60] In my view, the City has the management right to organize its workplace within the confines of the collective agreement with the Union and there is no evidence beyond conjecture that the City bullied and harassed AB as alleged. AB has argued theories about the reasons why the City had him report to this particular supervisor and the work assigned. AB believes this was all part of a plan to ultimately terminate him for applying for and being granted WorkSafe benefits.

[61] While there need be no direct evidence of discrimination, feelings of discrimination cannot be the sole basis for the Tribunal to make an inference that discrimination occurred: K.W. v. BC Ministry of Children and Family Development , 2018 BCHRT 219 at para. 59. Here there is no evidence, circumstantial or otherwise, that would permit me to decide that AB has taken his complaint on this point out of the realm of conjecture.

ii. Suspending him for “ridiculous reasons”

[62] AB alleges that the suspensions he received for violations of the Policy were because he was asking for HR to accommodate his physical disability.

[63] The City says that the suspensions for breach of the Policy: one-day in 2016; three-day in 2017; and 10-day in 2019, had nothing to do with AB’s disability. Instead, each suspension was progressive corrective discipline for repeated violations of the Policy.

[64] AB argues that the one-day suspension was because he rejected a female co-worker’s request to go dancing and she “made up a story we were fighting”.

[65] AB argues that the three-day suspension came after starting a WorkSafe claim against his first supervisor who was best friends with AB’s manager. AB says that his manager lied and fabricated a story that AB made “intimidating and threatening comments”.

[66] AB argues that according to the Assistant Director of the IT department, the 10-day suspension was an “HR driven exercise” as evidence that this suspension was part of an HR plan to terminate him to avoid accommodating him.

[67] AB further says that because the Assistant Director of the IT department told him that the City hadn’t made a decision yet regarding a different reporting structure for AB: “This is the ultimate proof that the HR and [Director of the IT department] planned to fire me after my WSBC claim and to avoid to accommodate (sic) my permanent disability.”

[68] Based on the materials before me, including recordings between AB and the Assistant Director of the IT department, I am not persuaded that AB’s allegations that the suspensions constitute bullying and harassment by the City have been taken out of the realm of conjecture. I am satisfied the City is reasonably certain to prove a non-discriminatory explanation for the suspensions.

[69] First, with respect to the one-day suspension, AB has not alleged facts to support a nexus between his physical disability and the suspension. Rather, he claims his co-worker made up a story that they were fighting. The City’s investigation found that AB was “aggressive and did elbow your co-worker while making rude comments to her”. The City has provided a reasonable, non-discriminatory, explanation for why it suspended AB. Therefore, there is no reasonable prospect this allegation will succeed.

[70] Regarding the three-day suspension, AB filed his WorkSafe claim on October 24, 2016. The suspension letter is dated October 27, 2017. The letter deals with a variety of comments by AB towards his supervisor and to others that were contrary to the Policy during the period from March 8, 2017 – April 27, 2017. The City’s investigation found that AB referred to his supervisor as “crazy dumb”, an “incompetent racist” and that AB’s conduct was “aggressively intimidating” towards his supervisor.

[71] I am not satisfied there is a sufficient temporal connection between AB filing his WorkSafe claim and the suspension that the Tribunal could draw an inference that the suspension had anything to do with the claim. Further, the materials before me establish that the City is reasonably certain to prove a non-discriminatory explanation for the suspension.

[72] With respect to the 10-day suspension, AB’s evidence of nexus is a comment the Assistant Director of the IT department made to AB after the 10-day suspension was meted out. Specifically, AB says the Assistant Director said the suspension was an “HR driven exercise” and that a decision hadn’t been made yet regarding a different reporting structure for AB. It is not evident to me, and AB has not convinced me, that this comment takes his allegation that HR was using the suspension to ultimately terminate him to avoid accommodating him, out of the realm of conjecture.

[73] Moreover, the City says the 10-day suspension was issued to AB as a result of the City’s findings that AB referred to his supervisor as a “Clueless Micro Manager”, made threatening comments to his supervisor and threatened the doctor who performed an IME by stating: “I am going to hurt him.”. The materials before me establish that the City is reasonably certain to prove a non-discriminatory explanation for the suspension

iii. Bribing doctors to have them create “fake reports”

[74] AB alleges that the City “tends to bribe doctors” saying that the City paid his general practitioner $200 for a form that they usually only pay $30 for and the City paid $5,000.00 for a doctor to produce a “fake report”.

[75] The City says that AB’s allegations are completely without merit. They deny the City ever bribed or manipulated doctors. Rather, the City says it paid the fees associated with obtaining clear, cogent and current medical information in an effort to accommodate AB.

[76] Employers will often pay for an employee’s physician to fill out medical forms or provide further information on an employee’s ability to perform their work duties and what accommodations, if any, are required. In addition, Employers will often obtain and pay for IMEs in order to facilitate the accommodation of employees.

[77] In my view there are no facts to support AB’s allegations that the City bribed or manipulated doctors into creating fake reports. I am not satisfied that AB has taken this allegation out of the realm of conjecture.

iv. Treating white and non-white employees differently

[78] AB alleges that the City treated non-white employees with disabilities differently than they treated him. I am unsure based on the materials how AB identifies on the basis of race, colour or ancestry other than he says he is an “immigrant”. For the purposes of my analysis, I consider AB to be “non-white”.

[79] To support this allegation AB provides two examples. The first example is an employee, CD, who also had a back injury. AB says that he was told by a co-worker that CD’s injury was not as bad as AB’s injury.

[80] According to AB, CD was white and had a family doctor, received two years of sick benefits and since CD cannot work anymore received 60% LTD benefits.

[81] AB says: “In my case since as an immigrant I never had a family doctor and the Walk-in clinic doctor who took care of me was corrupted by HR department and I was terrorized for years for fabricated stories and terminated.”

[82] The second example involves an employee EF who AB alleges suffered an ailment while away from work, returned through a GRTW, and thereinafter did not work. AB argues: “In contrast I work my soul off…and HR treated me like I am the enemy of the state to fire me.”

[83] The City denies these allegations outright.

[84] I am not persuaded by AB’s arguments that these examples demonstrate evidence that raises his complaint – that he was bullied and harassed or treated differently because he wasn’t white – out of the realm of conjecture.

[85] First, there is not enough evidence on this application concerning the other disabled employee’s respective situations to support a conclusion that race factored into the reasons their situations were different from AB’s. In addition, I have already decided that there is no evidence beyond speculation that the City’s HR department corrupted AB’s walk-in clinic doctor.

[86] As mentioned, feelings of discrimination cannot be the sole basis for the Tribunal to make an inference that discrimination occurred. AB’s statements that he felt “terrorized” or was treated like an “enemy of the state” because he is non-white and disabled is not enough. AB has not taken this aspect of his complaint out of the realm of conjecture.

iv. Conclusion – Bullying and Harassment

[87] On the whole of the evidence, I am not persuaded that AB’s allegations of bullying and harassment by the City have been taken out of the realm of speculation and conjecture. In particular, with respect to the discipline meted out by the City to AB for breaches of the Policy, the material before me satisfies me that the City is reasonably certain to prove at a hearing a non-discriminatory explanation for its conduct and actions:Lapansie v. Dr. Ralph Bieg Medical Corporation, 2008 BCHRT 210.

2. Termination of Employment

[88] AB alleges that the City terminated his employment due to his physical disability as part of the City’s plan to avoid accommodating him.

[89] The City argues that their decision to terminate AB’s employment was in no way related to his disability but due “entirely to the fact he engaged in very serious misconduct…namely his threatening, intimidating and disrespectful behaviour” in breach of the Policy.

[90] AB filed his complaint on April 20, 2020 and the City terminated him on April 23, 2020. The Tribunal may draw an inference from the timing of an event that a protected characteristic was a factor in a complainant’s adverse treatment: Gruber v. Mansini Steel Manufacturing and others , 2019 BCHRT 122 at para. 53. While a respondent can rebut the inference by providing a reasonable non-discriminatory explanation for the conduct: Probyn v. Vennon Dodge Jeep , 2012 BCHRT 87 at para. 28.

[91] Timing is only one factor that the Tribunal must consider when deciding whether it could draw an inference. When drawing inferences, the Tribunal must consider the whole of the evidence before it. It cannot look at two events in isolation and ignore the rest of the evidence provided by the parties: Hill v. Best Western and another, 2016 BCHRT 92 at para. 28.

[92] Based on the material before me, AB has no reasonable prospect of success in convincing the Tribunal to draw the inference that his physical disability was at least a factor in his termination. The evidence before me is that the City had performance concerns regarding AB’s adherence to the Policy dating back to 2016, and that the City was applying progressive discipline in order to make sure that the City’s expectations were being met.

[93] The City is reasonably certain to prove AB’s conduct in March 2020 and April 2020 leading up to his termination showed continued disregard for the Policy. The evidence before me is that on March 18, 2020, AB sent an email to a manager referring to his supervisor as a “spy” and asking the manager to tell HR that “if I don’t get sick benefits I will come back to work even if I test positive for CoViD19 (sic)”.

[94] On March 23, 2020, AB sent an email to a manager referring to two members of the City’s HR department as “sick individuals at the [City] who didn’t accept my 3 days sick in January”.

[95] On April 6, 2020, the City held a meeting with AB and his Union representative for the purpose of reviewing the March 18 and 23, 2020 emails. At the beginning of the meeting AB was advised that trust is an essential component of the employment relationship. AB responded: “I know the drill, go on.”. The City found AB’s conduct in the meeting to be intimidating and threatening. He was considered by the City to be disrespectful and rude during the meeting. AB did not acknowledge that he had done anything wrong.

[96] The City concluded that the content in AB’s March 18, 2020 and March 23, 2020 emails and his conduct at the April 6, 2020 meeting violated the Policy, amounting to a serious threat against the health and safety of City staff.

[97] The City argues that AB had been warned as part of the earlier disciplinary suspensions that future breaches of the Policy could result in the termination of his employment. The City says that they terminated him for cause given his failure to respond positively to progressive discipline resulting in his repeated refusal to comply with the Policy.

[98] Employers are able to manage their employees, give instructions, directions and/or discipline in circumstances where the employee has filed a human rights complaint: Malagoli v. North Vancouver (City) , 2023 BCHRT 42 at para. 189.

[99] Looking at the evidence as a whole, I find there is no reasonable prospect the Tribunal could draw an inference that AB’s physical disability was a factor in the City’s decision to terminate him despite that termination occurring three days after AB filed his human rights complaint.

[100] Even if I am wrong, and the Tribunal could draw such an inference after a hearing, I am satisfied on the materials before me that the City is reasonably certain to rebut it. I reach this conclusion, given the progressive discipline meted out by the City commencing in 2016 and the evidence regarding the March 18 and 23, 2020 emails and the subsequent April 6, 2020 meeting.

3. Denial of Vacation Benefits

[101] AB alleges that the City denied him his full vacation entitlement. AB says vacation is based on years of service. He argues that the City discriminated against him because it did not credit his leaves of absence in calculating his years of service.

[102] The City says that although AB’s original service date is 2005, he was on a full general leave of absence from October 7, 2016 to March 6, 2017 and a partial leave during a GRTW from March 7, 2017 to October 27, 2027. The City therefore adjusted AB’s service date for the purpose of vacation entitlement to 2006 as per the City’s General Leave of Absence Policy.

[103] The City’s General Leave of Absence Policy allows for the service date to be adjusted for vacation entitlement “in subsequent years” when a general leave of absence exceeds 30 calendar days. The City argues that it is not discriminatory to withhold a service accrual “when these aspects are related to the provision of service, i.e. the employees being actively at work full time.”.

[104] The issue before me is whether AB has no reasonable prospect of establishing that the loss of his vacation entitlement is discriminatory. The City has failed to persuade me that AB has no reasonable prospect of establishing his case in regard to this allegation.

[105] AB had a physical disability at the time he took the general leaves, one during a GRTW. An employee not being properly credited with their vacation entitlement suffers adverse treatment in employment. Further, it is open for the Tribunal at a hearing to conclude there is a connection between the adverse treatment and the physical disability as AB would not have required a GRTW partial general leave had he not been disabled.

[106] The City argues that the requirement to work is a bona fide occupational requirement to receive vacation credits pursuant to s.13(4) of the Code and relies on a number of cases, including K. v. L. (District) 2013 BCHRT 233, which canvasses the relevant jurisprudence at that time to support its argument.

[107] I am not convinced that the City is reasonably certain to establish a BFOR defence. In my view, it is better left to a Tribunal Member at the hearing to determine whether or not the vacation entitlement, as set out in the collective agreement applicable in this case, is an incident of employment status and is not dependant on the actual performance of work: Canadian Union of Labour Employees v. Public Service Alliance of Canada [2015] O.L.A.A. No. 157 (Lynk) at para. 51; Burnaby (City) v. Canadian Union of Public Employees (2015) 267 L.A.C. (4th) 269 at paras. 33, 40.

4. Denial of Sick Leave Benefits

[108] The collective agreement and in particular the applicable Benefits Policy sets out that an employee must demonstrate they are capable of returning to their “regular occupation, full-time hours” for 120 days before they qualify for reinstatement of sick leave benefits.

[109] AB alleges that despite working more than the 120 days to qualify for sick leave benefits at full-time hours from the period August 15, 2019 – April 23, 2020, the City denied his qualification for sick leave benefits because the City says “I take irregular breaks”.

[110] The City argues that AB did not work a 9-day fortnight schedule (7.77 hours per day X 9 days in two weeks) but instead he worked seven hours per day at five days a week and was temporarily accommodated with a modified break schedule, which allowed him to take a 10- minute break each hour to rest and stretch his back. The City says that without accommodation AB’s schedule per the collective agreement would have been as follows:

  • Morning: 10 minute paid rest break
  • Lunch: 60 minute unpaid break
  • Afternoon: 10 minute paid rest break

[111] Instead, according to the City, they provided AB with a modified break schedule and stated: “Without prejudice we could allow for an additional 10 minute break”. The City says the temporary accommodation break schedule was as follows:

  • Morning – 10 minute paid rest break

o 10 minute unpaid extra break

o 10 minute unpaid extra break

  • Lunch – 30 minute unpaid break

o 10 minute unpaid extra break

  • Afternoon – 10 minute paid rest break

o 10 minute unpaid extra break

[112] On September 9, 2019, AB emailed the Assistant Director of the IT department regarding his daily breaks as follows:

As explained, [HR] offered me to break down my one hour break in 4-5 small breaks. I am taking 4 breaks during the day. The longest is usually walking to canteen to pick up some for (sic) wrap. I eat my food at my desk. [HR] also offered me an extra 10 minutes for the 5 th break if I need it.

[113] The issue before me is whether AB has no reasonable prospect of establishing that the loss of his sick leave entitlement is discriminatory. The City has not persuaded me AB has no reasonable prospect of success, for the reasons that follow.

[114] AB’s treating physician on August 15, 2019, recommended a return to work limited to a five hour work day. He also recommended that AB take stretch breaks for five-10 minutes every hour. Consequently, there is some evidence that AB had a physical disability at the time and that his disability required accommodation.

[115] An employee not being properly credited with their sick leave entitlement suffers an adverse impact in employment. Further, there is a connection between the adverse impact and the physical disability. The City is denying the sick leave entitlement because AB’s disability requires a temporary accommodation in the form of breaks at times inconsistent with those set out in the collective agreement, including the City’s offer of an “extra break”.

[116] However, the City argues that the requirement to work is a bona fide occupational requirement to receive sick leave entitlement pursuant to s.13(4) of the Code. The City says that it is not discriminatory for them to differentiate between earned benefits for employees that are working full time regular hours and those that are not.

[117] I am not convinced that the City is reasonably certain to establish a BFOR defence. In my view, it is open to a Tribunal Member at the hearing to find that AB was working “full time regular hours” that qualified him for the sick leave benefits as per the Benefits Policy. Additionally, there is a dispute in the evidence regarding whether or not AB ever took an “extra break”. He states that he couldn’t take the extra break as his supervisor didn’t allow it. This is a key issue of credibility, which should be left to a hearing to resolve: Francescutti v. City (Vancouver) , 2017 BCCA 242 at para. 67.

[118] The Benefit Policy doesn’t differentiate between a 9-day fortnight schedule and a seven hours per day at five days a week schedule, both of which provide the same amount of hours worked. Further, it is unclear at this point how Article 4.1.6 of the collective agreement fits into this analysis with respect to the scheduling of an employee for the 9-day fortnight. As per Article 4.1.6, the scheduling of the 9-day fortnight is “by mutual agreement of the employees directly affected by the change…”. The material before me demonstrates that AB was not interested in working the 9-day fortnight, he wanted a five hour work day. However, for the period August 19, 2019 – March 17, 2020, AB worked the seven hours per day at five days a week schedule as required by the City. It is open for the Tribunal to find that since there is no difference in hours between the 9-day fortnight and the seven hours per day at five days a week schedule, both could be considered “full time regular hours” for the purpose of qualifying for sick leave benefits.

[119] The Benefit Policy states the following regarding a temporary accommodation:

When an employee is in a temporary accommodation working towards returning to their regular occupation, then the time in the temporary accommodation does not count towards the 120 RTW.

[120] It would be open to the Tribunal to decide at a hearing that AB had returned to his “regular occupation” and was not “working towards returning” to his regular occupation. As such, the City’s “without prejudice” temporary accommodation would count towards the 120 days before AB qualified for reinstatement of sick leave benefits. This conclusion would be further supported if the Tribunal finds as a fact that AB did not take the “extra break”.

[121] Therefore, as credibility is a foundational issue on whether or not AB took the “extra break” offered, and it is open for the Tribunal to decide what effect the City’s temporary accommodation has on AB’s ability to qualify for reinstatement of sick leave benefits as per the collective agreement and the Benefits Policy, a hearing is required. It is not reasonably certain the City will establish a defence at a hearing on this issue.

4. Denial of Accommodation

[122] AB alleges that the City never accommodated his spinal condition by allowing him to “lie down from Nov 2015 – Feb 2019”. In addition, he says the City had him work more than five hours per day contrary to his doctor’s recommendations.

[123] The City denies that it failed to accommodate AB’s spinal condition. The City says that it made every effort to accommodate AB, including but not limited to: participating in three GRTWs with modified hours; arranging for a gym membership starting in February 2019 as a space for him to stretch and lie down if he wanted to; changing start times; allowing for an altered break schedule; and providing an ergonomic workstation.

[124] The issue I must decide is whether the City is reasonably certain to establish at a hearing that it discharged its duty to accommodate AB. I am convinced that the City is reasonably certain to do so, except for the period of November 30, 2015 – March 11, 2016, and the period August 19, 2019 – April 20, 2020.

[125] AB had a Functional Capacity Evaluation [FCE] on November 25-26, 2015. The FCE noted that in order to alleviate his symptoms, AB would lie on his back. AB returned to work on November 30, 2015 on a GRTW schedule as recommended in the FCE.

[126] On January 19, 2016, AB’s doctor confirmed AB’s maximum sitting tolerance was 60 minutes, that AB required a 10-15 minute break “lying on his back”, and that the doctor requested AB be given space to lie down. The City could not accommodate a space for AB to lie down as the City claims it did not have the space and was “bursting at the seams”.

[127] There is both a procedural component and a substantive component within the duty to accommodate. The procedural component requires the employer to undertake an individualized investigation of accommodation measures and an assessment of an employee’s needs. The substantive component requires the employer to make modifications or provide the accommodation necessary in order to allow an employee to participate fully in the workplace: Meiorin at para. 66.

[128] It will be open to the Tribunal at a hearing to find that the City has not met its duty to accommodate AB to the point of undue hardship from November 30, 2015 – March 11, 2016. The City has not satisfied me that they took all reasonable and practical steps to determine if there was a place for AB to lie down during this period. There is no evidence before me in the materials that indicate that a gym membership for AB allowing him space to stretch or lie down was not an available option for AB during this period or that other space, outside the IT department, could not have been an alternative option for AB to lie on his back during breaks.

[129] AB was off work from March 14, 2016 – March 3, 2017. According to AB’s specialist, Dr. Z, in an assessment dated December 15, 2016, the recommendation for a return to work was that AB “will require some time where he needs to get up and walk around or perhaps lie down for short periods of time.”

[130] On January 24, 2017, AB’s general practitioner, Dr. F., confirmed to the City that it was not an absolute requirement for AB to lie down during a break and instead recategorized the hourly five-10 minute break as an “exercise and strengthening break”.

[131] AB commenced a GRTW on or about March 6, 2017. The GRTW consisted of starting with four hours per day, three days a week, increasing to five hours per day, five days a week after six weeks. The only restrictions were an hourly break period of five-10 minutes as an exercise and strengthening break.

[132] Based on the medical information from Dr. Z in December, 2016 and Dr. F in January, 2017, it does not appear that it was a medical requirement that AB have a place to lie down during his GRTW from on or about March 6, 2017 – October 30, 2017. Therefore, it is reasonably certain that the City will make out a defence in regard to this allegation.

[133] This is further supported by the IME conducted by Dr. N on or about August 24, 2017 and his subsequent IME report dated September 18, 2017. In Dr. N’s IME report he concludes that the earlier FCE from November, 2015 “no longer reflects [AB’s] true functional capacity” and AB’s “belief that he is limited to 5 or 6 hours of sedentary work per day by reason of his medical condition cannot be reasonably supported.”.

[134] From on or about October 30, 2017 – February 6, 2019, AB was off work. During this period there was time spent by the City, the Union, AB, and a mediator to facilitate AB’s return to work.

[135] The City is reasonably certain to prove it accommodated AB to the point of undue hardship for the period from on or about February 7, 2019 to August 19, 2019. The Supreme Court of Canada in Central Okanagan School District No. 23 v. Renaud [1992] 2 S.C.R. 970. at paragraph 44, stands for the proposition that an employee “cannot expect a perfect solution”.

[136] On February 7, 2019, the City, the Union and AB met to confirm how a GRTW would unfold. At this meeting it was confirmed that AB would be on a GRTW for five hours per day until a further FCE and a further IME were performed to determine AB’s limitations regarding his spinal condition.

[137] The February 7, 2019 GRTW had, in part, the following details:

· AB was allowed to work less than five hours per day depending on his ability and tolerance;

· AB was to self-monitor and stretch when necessary for as long as necessary

· The City secured a gym membership for AB, located in close proximity, for AB’s stretching breaks or to lie down.

[138] The City is reasonably certain to prove that it accommodated AB to the point of undue hardship with the GRTW allowing him to work less than five hours per day, stretch when necessary and for as long as necessary in the gym.

[139] On April 3-4, 2019, AB attended a FCE performed by an exercise physiologist, Mr. H. In Mr. H’s report, he opined that AB should continue working five hours a day, five days a week and “for the interim, require three to five 10-minute stretch breaks a shift to lie down…”

[140] On April 8, 2019, AB attended an IME with Dr. G, an Occupational Health Physician and the team physician for the Occupational Rehabilitation program at CBI (formerly the Canadian Back Institute). The City’s referral to Dr. G asked, amongst other questions, whether the current reduction in AB’s shift from seven hours to five hours a day was supported based on objective medical evidence.

[141] On June 17, 2019, Dr. G issued his IME report, having reviewed Mr. H’s report. Dr. G disagreed with Mr. H’s report. Dr. G’s opinion was, in part, as follows:

· there is no medical reason why AB should not be able to work seven hours per day;

· there is no medical indication to arrange for a private location for AB to stretch; and

· there is no medical indication to allow AB the ability to stretch when he deems it necessary

[142] On July 11, 2019, the City, Union and AB met and the City informed AB that he would be required to work seven hours a day based on Dr. G’s IME report. It was confirmed by the City on July 16, 2019 that AB could take four rest breaks and an additional 10-minute break to stretch. In addition, the City maintained his gym membership.

[143] It is not in dispute that AB did not want to work seven hours a day but wanted to only work a maximum of five hours a day. On August 6, 2019, AB provided a doctor’s note from Dr. S, which states as follows:

The above patient came to see me today. He has ongoing pain to right leg. He states, he had seen pain clinic doctor 2-3 months ago and has follow up appointment in Nov 2019. He was advised for work with modified duties for 5 hours maximum in February. He should still follow that until he sees his pain clinic specialist.

[144] On August 9, 2019, AB provided a note from his physiotherapist who indicated that AB would benefit from hourly breaks to lie down while at work and should be limited to a five hour work day.

[145] On or about August 14, 2019 the City reviewed the medical note from Dr. S and the note from AB’s physiotherapist and advised AB that “In the City’s view, [Dr. G’s] assessment and report remains the most thorough and comprehensive evaluation of your ability to work and the City relies on it in directing you to work your full shift.”

[146] On August 15, 2019, AB provided the City with a note from Dr. B, a clinical assistant professor at the University of British Columbia. Dr. B’s note states as follows:

I have reviewed the patient’s medical records and my own interaction with this patient and I recommend that the above named individual can return back to work but with modified duties. He should be limited to a 5 hour work day with the opportunity to take breaks every hour to stretch for 5-10min. I will re-evaluate his case in 2-3 months.

[147] The City advised AB on August 15, 2019 that they reviewed Dr. B’s note but that the City “prefers to rely on the medical opinion provided by [Dr. G.] who conducted a thorough evaluation and assessment of your need for accommodation.”

[148] AB commenced working on August 19, 2019 seven hours per day with the modified break schedule with the option of an extra break as well as the continued gym membership until March 17, 2020 when he was put on a paid administrative leave until his termination date of April 23, 2020. AB did not provide any follow up medical information from Dr. B or any other medical practitioners during the period August 19, 2019 – April 23, 2020.

[149] In this case, based on the materials before me, it is reasonably certain the City will be able to establish that they accommodated AB since March 11, 2016 regarding the ability to take breaks as well as having a location to stretch or lie down at the gym during those breaks. However, the City has not convinced me that they are reasonably certain to establish that they accommodated AB from August 19, 2019 to the end of his employment regarding the length of his work day being increased to seven hours instead of the five hours recommended by Dr. B, Dr. S and AB’s physiotherapist.

[150] AB has provided some evidence through the medical notes of Dr. B, Dr. S and his physiotherapist in August 2019 that he was recommended to only work five hours a day. These recommendations are in conflict with Dr. G’s June 2019 IME. It will require a hearing to resolve whether or not the City has met its duty to accommodate when AB provided evidence he should only work five hours per day and the City did not facilitate that.

[151] On the material before me, the City has not persuaded me they are reasonably certain to prove at a hearing that they satisfied their duty to accommodate AB with their refusal to limit him to a five hour day. I am not convinced that the City, as part of their duty to accommodate, was not required to inquire further to resolve the conflicting medical evidence that was provided to them by AB in August 2019, in particular Dr. B’s August 15, 2019 recommendations.

[152] Therefore, I conclude that it is reasonably certain that at a hearing the City will establish they met their duty to accommodate AB to the point of undue hardship except for the period November 30, 2015 – March 11, 2016 regarding the issue of a place for AB to lie down and the period August 19, 2019 – April 20, 2020 regarding only the issue of AB having to work a seven hour day instead of a five hour day.

V CONCLUSION

[153] This decision is subject to an anonymization order.

[154] The City’s application to dismiss the complaint is granted, in part. AB’s complaint alleging the City denied him vacation and sick leave benefits will proceed. AB’s allegation that the City failed to meet its duty to accommodate from November 30, 2015 – March 11, 2016 regarding a place for him to lie down, and from August 19, 2019 – April 20, 2020 regarding the requirement for him to work a seven hour day will also proceed to a hearing.

[155] I note that the parties previously attempted to resolve this matter through mediation. I encourage the parties to take advantage of the Tribunal’s mediation services to try again to resolve this matter by mutual agreement now that the scope of the complaint has been narrowed.

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Christopher J. Foy

Tribunal Member