Leow v. DIVERSEcity Community Resources Society, 2024 BCHRT 199
Date Issued: June 28, 2024
File: CS-002956
Indexed as: Leow v. DIVERSEcity Community Resources Society, 2024 BCHRT 199
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:
Winson Leow
COMPLAINANT
AND:
DIVERSEcity Community Resources Society
RESPONDENT
REASONS FOR DECISION
APPLICATION TO DISMISS A COMPLAINT
Section 27(1)(c) and 27(1)(d)(ii)
Tribunal Member: Ijeamaka Anika
On their own behalf: Winson Leow
Counsel for the Respondent:
Jaime Hoopes
Rebecca Klass
I INTRODUCTION
[1] Winson Leow worked for DIVERSEcity as an account representative until his employment ended in September 2020. In March 2020, DIVERSEcity required all of its staff to work from home. In May 2020, Mr. Leow requested and was granted an unpaid leave of absence due to childcare issues. Mr. Leow resigned during his leave but asked to work from home for his two-week notice period or receive pay in lieu of reasonable notice. DIVERSEcity refused. Mr. Leow alleges this was discrimination based on family status in violation of s. 13 of the Human Rights Code.
[2] DIVERSEcity denies discriminating and applies to dismiss the complaint under s. 27(1)(c) of the Code.Among other things, it argues that Mr. Leow has no reasonable prospect of proving he experienced an adverse impact because the terms of his unpaid leave required that he give 4-weeks notice if he wanted to return to work before the agreed-upon date and he did not do that. Instead, he resigned and asked to return to active employment immediately for the notice period or be paid in lieu of reasonable notice. In the alternative, DIVERSEcity applies to dismiss under s. 27(1)(d)(ii) on the basis that proceeding with the complaint would not further the purposes of the Code because it made Mr. Leow a reasonable settlement offer: s. 27(1)(d)(ii).
[3] I find that I can most efficiently decide this application under s. 27(1)(c). The issue I must decide is whether Mr. Leow has no reasonable prospect of proving that he was entitled to return to work or be paid during his two-week notice period and experienced an adverse impact when DIVERSEcity refused his request.
[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.
II BACKGROUND
[5] DIVERSEcity is a registered non-profit organization offering services and programs to newcomers to Canada in Surrey, Langley, Delta, and White Rock.
[6] Mr. Leow began employment with DIVERSEcity on January 2, 2020. The terms and conditions of Mr. Leow’s employment were governed by a written employment agreement as well as a collective agreement, between the Community Social Services Bargaining Association and the Community Social Services Employers Association of British Columbia.
[1] The terms of Mr. Leow’s employment agreement include the following:
8(b): Termination for Just and Reasonable Cause: Pursuant to the Collective Agreement the Agency may terminate your employment at any time for just and reasonable cause, effective upon the date specified in the Agency’s written notice of termination of your employment. With the exception of any pay accrued and owing up to the effective date of termination of your employment, you will not be entitled to receive any further pay or compensation whatsoever, including, without limitation, termination notice or pay in lieu thereof, severance pay, benefits, or damages of any kind.
8(c) Resignation: If for any reason you wish to terminate your employment with the Agency, you will provide the Agency with a minimum of two weeks’ advance, written notice of resignation (the “Resignation Period”). You agree that in order to protect the Agency’s interests, the Agency may, in its sole and unfettered discretion, waive the Resignation Period, in whole or in part, and bring an immediate end to your employment by providing you with written notice to this effect and all pay to which you would have been entitled over the remainder of the Resignation Period.
[2] In or around March 2020, in response to the COVID-19 pandemic, DIVERSEcity directed all its employees, including Mr. Leow, to work from home. In May 2020, DIVERSEcity approved Mr. Leow’s request for an unpaid leave of absence due to childcare issues. The terms of the leave of absence were that:
a. Mr. Leow’s unpaid leave would run from May 19, 2020, until September 7, 2020.
b. If Mr. Leow wished to return to work earlier than September 7, 2020, or request an extension of the leave, he was required to provide DIVERSEcity with a written request at least four weeks prior to his expected return date.
c. While on leave, all of Mr. Leow’s health benefits would continue at no cost to him.
[3] On August 7, 2020, Mr. Leow requested an extension to his leave of absence until October 30, 2020. DIVERSEcity approved the request with the same conditions as the first leave approval.
[4] On September 1, 2020, while he was still on leave of absence, Mr. Leow emailed DIVERSEcity that he had found another job and would resign from DIVERSEcity effective September 15, 2020. The email constituted his two-week resignation notice. Mr. Leow requested to return to active work and to work from home during the notice period. DIVERSEcity accepted Mr. Leow’s resignation but did not accept his request to return to work and to work from home. DIVERSEcity informed him that it could not facilitate a work from home arrangement within his two-week notice period. DIVERSEcity reminded him that under the terms of his leave agreement, he was required to give 4 weeks notice if he wanted to return to work prior to the agreed return date.
[5] Mr. Leow’s last day of employment was September 15, 2020.
III DECISION
[6] DIVERSEcity applies to dismiss Mr. Leow’s complaint on the bass that is has no reasonable prospect of success: Code,s. 27(1)(c) The onus is on DIVERSEcity to establish the basis for dismissal.
[7] 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.
[8] 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.
[9] 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.
[10] To prove his complaint at a hearing, Mr. Leow 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 and British Columbia (Human Rights Tribunal) v. Gibraltar Mines Ltd. , 2023 BCCA 168 at paras. 100-102. If he does that, the burden will shift to DIVERSEcity to justify the impact as a bona fidereasonable justification. If the impact is justified, there is no discrimination.
A. Does Mr. Leow have a personal characteristic that is protected by the Code?
[11] Mr. Leow’s family status, namely his parental status and role as full-time caregiver for his children, is not seriously disputed. Therefore, I am not persuaded that his complaint has no reasonable prospect of success on this basis.
[12] DIVERSEcity’s submissions about the scope of family status focused on the Court of Appeal’s decisions in Health Sciences Assoc. of B.C. v. Campbell River and North Island Transition Society, 2004 BCCA 260 and Envirocon EnvironmentalServices ULC v Suen, 2019 BCCA 46. After the Tribunal received the parties’ submissions, the Court of Appeal issued a decision in Gibraltar Minesaddressing the test for proving family status discrimination regarding family caregiving responsibilities in the employment context. The Court of Appeal’s decision in Gibraltar Minesclarified that a complainant does not need to prove the employer changed a term or condition of their employment, to prove family status discrimination. Accordingly, I need not consider submissions that touch on whether there was a unilateral change to the terms and conditions of Mr. Leow’s employment because it is not, and was not at the time this complaint arose, a part of the legal test for family status discrimination.
B. Was Mr. Leow adversely impacted in employment?
[13] Mr. Leow alleges that he was entitled to two weeks’ pay that his employer failed to provide him, adversely affecting him. He said his complaint is about DIVERSEcity firing him because of childcare responsibilities.
[14] DIVERSEcity argues that Mr. Leow has no reasonable prospect of proving that its refusal of Mr. Leow’s request to return to paid work immediately constitutes an adverse impact. It says Mr. Leow was not entitled to that pay because the terms of his unpaid leave required him to give 4 weeks’ notice if he wanted to return to work before the agreed-upon date, and he failed to provide such notice.
[15] Mr. Leow disputes this. He argues that the terms of his unpaid leave of absence are irrelevant. Instead, he argues the relevant terms concerning the end of his employment are in his employment agreement. I understand Mr. Leow is arguing that the alleged adverse impact stems from DIVERSEcity’s refusal to allow him to return to work for the two-week notice period or pay him in lieu of working during the notice period. Therefore Mr. Leow argues that DIVERSEcity breached the employment agreement and effectively fired him.
[16] I am not satisfied that Mr. Leow has taken his allegation of adverse impact out of the realm of conjecture for the reasons below. My decision turns on whether Mr. Leow has no reasonable prospect of proving adverse impact at a hearing because he was entitled to return to active work immediately and, in turn be paid for that work.
[17] Mr. Leow argues that the only relevant evidence in this application is his employment contract, which requires him to give two weeks’ notice of resignation. He says the terms of the leave of absence agreement are irrelevant.
[18] I am not persuaded by this argument. The Court in Gibraltar Mines commented on how to apply Moorewhen 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.
[19] In Mr. Leow’s case, there is no dispute that he was on a leave of absence at the time of his resignation. Mr. Leow applied for and was granted an extension to that leave under the terms of the leave of absence. He does not dispute that he agreed to the terms of the leave agreement. According to the leave agreement, Mr. Leow was required to notify DIVERSEcity if he wanted to return from leave earlier than agreed upon. He did not. Instead, he told DIVERSEcity he was resigning effective September 15, 2020, and requested he be returned to work immediately and for the duration of the notice period.
[20] Mr. Leow’s submissions that he was entitled to return to work for the sole purpose of working during his notice period are unsupported by the materials before me. He says the terms of the leave agreement are irrelevant but provide no basis, in fact, or law, for this position.
[21] Mr. Leow also argues that his case is about being fired because of childcare responsibilities.
[22] I disagree. Mr. Leow has not put evidence of DIVERSEcity terminating his employment before me, nor has he argued that DIVERSEcity compelled him to resign. The evidence before me is that despite agreeing to give four weeks’ notice of his intention of early return to work, Mr. Leow did not and instead he notified DIVERSEcity of his resignation because he found another job, and DIVERSEcity accepted. According to the materials provided by the parties, the two-week notice period occurred during Mr. Leow’s leave of absence and – as DIVERSEcity argues –Mr. Leow maintained his leave of absence until the end of his employment.
[23] I find it significant that when Mr. Leow wished to extend his leave of absence, he complied with the notice requirement in the leave agreement but now says the terms of that agreement are irrelevant. Mr. Leow has not provided any reasons why his employment contract is relevant but not the leave agreement.
[24] On the materials before me, I am unable to find that Mr. Leow has taken the allegation of adverse impact out of the realm of conjecture. Therefore, I am persuaded by DIVERSEcity’s argument that Mr. Leow’s complaint has no reasonable prospect of success.
IV CONCLUSION
[25] The complaint is dismissed in its entirety under s. 27(1)(c) of the Code.
Ijeamaka Anika
Tribunal Member