Holm v. Interior Health Authority, 2024 BCHRT 229
Date Issued: August 2, 2024
File: CS-000728
Indexed as: Holm v. Interior Health Authority, 2024 BCHRT 229
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:
Angela Holm (formerly, Angela Marshall)
COMPLAINANT
AND:
Interior Health Authority
RESPONDENT
REASONS FOR DECISION
APPLICATION TO DISMISS A COMPLAINT
Section 27(1)(c)
Tribunal Member: Beverly Froese
On their own behalf: Angela Holm
Counsel for the Respondent: Lawrence Robinson
I INTRODUCTION
[1] In June 2020, Angela Holm (formerly, Angela Marshall), made a complaint against Interior Health Authority [IHA] alleging discrimination regarding her employment based on physical disability contrary to s. 13 of the Human Rights Code. Specifically, Ms. Holm alleges that IHA failed to accommodate her return to work after she sustained injuries in a motor vehicle accident.
[2] IHA denies discriminating and says that at all relevant times, it reasonably accommodated Ms. Holm’s disabilities.
[3] Under its Case Path Pilot, the Tribunal allowed IHA to apply to dismiss the complaint under s. 27(1)(c) of the Codeon the ground it has no reasonable prospect of success.
[4] For the reasons set out below, IHA’s application is denied. I am persuaded that Ms. Holm has a reasonable prospect of proving her case at a hearing. I am also persuaded it is reasonably certain that IHA would be able to establish that it reasonably accommodated Ms. Holm’s disability when it implemented a gradual return to work plan [GRTW Plan] in January 2020. However, I am not persuaded it is reasonably certain that IHA would be able to establish that it reasonably accommodated Ms. Holm’s disability between the time she expressed an interest in returning to work and the implementation of the GRTW Plan, or after the GRTW Plan was suspended in April 2020 because of the circumstances surrounding the COVID-19 pandemic.
[5] 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.
[6] I apologize to the parties for the length of time it has taken the Tribunal to issue this decision.
II PRELIMINARY ISSUE
[7] Before considering whether the complaint should be dismissed, I first address IHA’s argument that Ms. Holm’s response to the application should not be accepted because it was filed late.
[8] Ms. Holm does not dispute that she submitted her response to the Tribunal after 4:30 p.m. on the day it was due. According to Rule 9 of the Tribunal’s Rules of Practice and Procedure, a communication received from a party after 4:30 p.m. “is deemed to be filed or delivered on the next business day”. That means Ms. Holm’s response was submitted one day late.
[9] IHA submits that because Ms. Holm had not sought an extension of time to file her response and the Tribunal had not granted IHA an extension of time in the past, the application should proceed as unopposed. IHA submits that fairness dictates that each party be subjected to the same processes.
[10] I agree with IHA that both parties should be treated fairly throughout the Tribunal’s process. Part of that fair treatment relates to granting extensions of time to file forms and submissions with the Tribunal when warranted. It is common, as a matter of courtesy, for parties to consent to reasonable extensions of time on the understanding that circumstances can arise such that a party is unable to meet a deadline set by the Tribunal. In those circumstances, the usual expectation between the parties is that if the other party needs an extension in the future, they will similarly consent.
[11] It is also common for a party to oppose the other party’s request for an extension. In those circumstances, the Tribunal will determine whether to grant the extension.
[12] My review of the file indicates that IHA’s counsel requested an extension of time to file this application and Ms. Holm opposed the request. Before a Member could decide whether to grant the extension, IHA’s counsel withdrew his request and filed the application by the deadline. Therefore, IHA was never denied an extension.
[13] I agree with IHA that in general, parties are expected to know and comply with the Tribunal’s Rules. In this case, however, I accept Ms. Holm’s explanation that she was not aware of Rule 9 and the requirement to file her response by 4:30 p.m. on the day of the deadline. Ms. Holm is self-represented, and her response was filed only hours after it was due. In these particular circumstances, I find it is appropriate to exercise my discretion under Rule 2(2) to vary the Tribunal’s time limits and accept Ms. Holm’s response. In my view, taking Ms. Holm’s response into consideration is not procedurally unfair to IHA, as it essentially had the same number of days to consider and reply to Ms. Holm’s response as it would have if it were filed by the 4:30 p.m. deadline. If the late filing of the response caused IHA prejudice or inconvenience, it could have requested an extension of time to file its reply.
[14] Further, and in any event, I find that considering Ms. Holm’s response assists the just and timely resolution of the complaint.
III BACKGROUND
[15] In December 2017, Ms. Holm started working at IHA as a Community Health Worker. Her duties consisted of home visits to people who could live independently but required assistance with the tasks of daily living, such as getting into and out of bed, and bathing.
[16] In June 2018, Ms. Holm sustained injuries to her left arm and shoulder in a motor vehicle accident. About a year later, Ms. Holm’s request for a leave of absence because of her injuries was approved. After she went on leave, Ms. Holm received disability benefits through IHA’s group insurance plan.
[17] In early July 2019, Ms. Holm contacted IHA and expressed her intention to resign from her position. After speaking with the Casual Home Support Supervisor, Ms. Holm decided not to resign.
[18] In August 2019, Ms. Holm told her employer she was interested in returning to work in a modified capacity. At that time, Ms. Holm’s doctor indicated that Ms. Holm had ongoing physical limitations, including an inability to lift more than 10 kg. Ms. Holm’s doctor also indicated that because of her limitations, Ms. Holm would not be able to transfer patients and would need assistance helping patients get in and out of bed and bathing. Based on that information, IHA determined that Ms. Holm’s return to work as a Community Health Worker could not be accommodated.
[19] Around mid-January 2020, IHA developed the GRTW Plan in consultation with Ms. Holm’s doctor and group benefits insurer. The GRTW Plan consisted of modified hours and assistance with direct patient care as needed. Ms. Holm approved the GRTW Plan that was anticipated to end in late March 2020.
[20] In mid-March 2020, a state of emergency was declared regarding the COVID-19 pandemic. As a result, IHA was required to implement specific measures intended to reduce human contact and conserve personal protective equipment [PPE].
[21] In late-March 2020, the GRTW Plan was extended to mid-April at Ms. Holm’s request. It was subsequently extended at her request to the end of April.
[22] In late-April 2020, IHA suspended the GRTW Plan because of circumstances created by the COVID-19 pandemic. Specifically, IHA says the GRTW Plan was suspended because it needed to restrict the number of employees working in close proximity to one another, community-based services were significantly curtailed, and PPE needed to be rationed and prioritized among its staff.
[23] In September 2021, Ms. Holm applied for and was offered the position of a Community Mental Health Worker. After she accepted the position, IHA implemented a permanent duty to accommodate agreement that recognizes Ms. Holm continues to have physical limitations. At the time this application was made, Ms. Holm was still working as a Community Mental Health Worker.
IV DECISION
[24] IHA applies to dismiss Ms. Holm’s complaint on the basis that it has no reasonable prospect of success: Code,s. 27(1)(c) The onus is on IHA to establish the basis for dismissal.
[25] Section 27(1)(c) is part of the Tribunal’s gate-keeping function. It allows the Tribunal to remove complaints which do not warrant the time and expense of a hearing.
[26] The Tribunal does not make findings of fact under s. 27(1)(c). Instead, the Tribunal looks at the evidence to decide whether “there is no reasonable prospect that findings of fact that would support the complaint could be made on a balance of probabilities after a full hearing of the evidence”: Berezoutskaia v. British Columbia (Human Rights Tribunal) , 2006 BCCA 95 at para. 22, leave to appeal ref’d [2006] SCCA No. 171. The Tribunal must base its decision on the materials filed by the parties, and not on speculation about what evidence may be filed at the hearing: University of British Columbia v. Chan, 2013 BCSC 942at para. 77.
[27] 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.
[28] To prove her complaint at a hearing, Ms. Holm will have to prove that at the material time she had a characteristic protected by the Code, she was adversely impacted regarding her employment at IHA, and her protected characteristic was a factor in the adverse impact: Moore v. British Columbia (Education), 2012 SCC 61 at para. 33. If she did that, the burden would shift to IHA to justify the impact as a bona fide occupational requirement [BFOR]. If the impact is justified, there is no discrimination.
[29] Based on the materials before me, I am not persuaded Ms. Holm has no reasonable prospect of proving her case at a hearing. There is evidence before me indicating that at the material time, Ms. Holm had a disability protected under the Code. There is also evidence before me indicating that after Ms. Holm expressed an interest in returning to work in August 2019, she was not allowed to return until January 2020. In my view, that evidence is sufficient to take Ms. Holm’s case out of the realm of conjecture.
[30] The essence of IHA’s argument is that the complaint has no reasonable prospect of success because it is reasonably certain IHA will be able to prove a BFOR defence at the hearing: Purdy v. Douglas College and others , 2016 BCHRT 117 at para. 50.
[31] To justify the employment-related adverse impacts at a hearing, IHA would have to prove that it: (1) adopted the standard at issue for a purpose rationally connected to the performance of the job; (2) adopted the standard in an honest and good faith belief that it was necessary to the fulfillment of that legitimate purpose; and (3) the standard is reasonably necessary to the accomplishment of that legitimate purpose. This third element encompasses IHA’s duty to accommodate Ms. Holm’s disability to the point of undue hardship: British Columbia (Public Service Employee Relations Commission) v. British Columbia Government and Service Employees’ Union (Meiorin Grievance), [1999] 3 SCR 3 [Meiorin] at para. 54.
[32] Neither party made submissions on the standard at issue in this case. Based on the materials before me, for the purposes of this decision I presume the standard to be that Community Health Workers must be physically able to perform their job duties. There is no evidence before me indicating that the standard was not adopted in good faith and is rationally connected to the job. However, as it is not in dispute on this application, I need not consider it.
[33] The only issue the parties dispute in this application is whether it is reasonably certain that IHA will be able to establish at a hearing that Ms. Holm’s disability was accommodated to the point of undue hardship.
[34] Based on the totality of the evidence before me, I am convinced it is reasonably certain that IHA would be able to establish that in June 2019, it accommodated Ms. Holm’s disability by approving her request for a leave of absence and facilitating her disability benefits. I am also convinced it is reasonably certain that IHA would be able to establish that it accommodated Ms. Holm’s disability when it implemented the GRTW Plan and extended it twice at Ms. Holm’s request. Lastly, I am convinced it is reasonably certain that IHA would be able to establish that suspending the GRTW Plan in April 2020 was justified because of the actions it believed were necessary to take during the COVID-19 pandemic.
[35] I am not, however, persuaded on the evidence as a whole that IHA would be able to establish that it reasonably accommodated Ms. Holm’s disability between the time she expressed an interest in returning to work in August 2019 and the implementation of the GRTW Plan in January 2020, and after the GRTW Plan was suspended in April 2020.
[36] The parties do not appear to dispute that when Ms. Holm expressed an interest in returning to work in a modified capacity in August 2019, her doctor identified ongoing physical limitations. They also do not appear to dispute that because of her physical limitations, Ms. Holm was unable to transfer patients and required assistance with tasks such as getting patients in and out of bed and bathing patients.
[37] IHA has submitted evidence to support its assertion that allowing Ms. Holm to return to work at that time was justified. That evidence indicates IHA determined that Ms. Holm’s disability could not be accommodated because a second employee would need to accompany her to home visits. IHA says that was not an option because it would have had to bear the cost of two employees performing the duties of one.
[38] However, Ms. Holm has submitted evidence that supports her assertion that IHA did not take sufficient steps to accommodate her disability before January 2020. Specifically, Ms. Holm submitted internal email exchanges from August 2019 indicating that IHA’s Disability Management communicated with the Team Lead Home Support Services about whether Ms. Holm’s return to work could be accommodated, for example by being assigned to certain clients. In those emails, Disability Management stated that Ms. Holm was “keen to get back to work and feels there are many things she can do”. The emails also indicate that Disability Management was told by the Team Lead Home Support Services that Ms. Holm’s physical limitations and restrictions could not be accommodated, and she would not be able to return to work until “she is ready to work at full scope and duties”. Lastly, these emails indicate that in late August 2019, Disability Management was told by Human Resources that the only task Ms. Holm would be able to do on her own was hand out medication and she could not be accommodated to perform only one task.
[39] There is no evidence before me indicating what steps, if any IHA, took between August 2019 and January 2020 to accommodate Ms. Holm’s return to work. Further, it is not clear to me on the evidence why IHA determined in August 2019 that the only unmodified task Ms. Holm could perform was dispensing medication when the GRTW Plan lists a number of additional tasks that did not require modification, specifically simple meal preparation, respite for patients who do not require bathing or transfers, minimal assistance personal care, and completing charting and client reports. It is also not clear why Disability Management was told in August 2019 that Ms. Holm could only return to work if she was “ready to work at full scope and duties”.
[40] Further, there is conflicting evidence regarding the circumstances surrounding Ms. Holm obtaining a position as a Community Mental Health Worker. IHA says it facilitated her return to work in that position, but Ms. Holm has provided evidence indicating that she obtained this position on her own. As the parties do not appear to dispute that Ms. Holm has been able to perform her job duties as a Community Mental Health Worker, it is not clear to me on the evidence whether this position could have been considered much earlier as part of the accommodation process.
[41] In summary, based on the evidence Ms. Holm submitted and the absence of evidence from IHA regarding the efforts, if any, made between August 2019 and January 2020 and April 2020 and September 2021 to accommodate Ms. Holm’s disability, I cannot conclude it is reasonably certain IHA would be able to establish the third part of the Meiorintest.
[42] I note here that in her response, Ms. Holm alleges that IHA did not address bullying and harassment she was subjected to by various supervisors. This was not an allegation made in her complaint. Since Ms. Holm did not apply under Rule 24(4) to amend her complaint to add this allegation while this application was pending, I did not consider it as part of the complaint.
V CONCLUSION
[43] IHA’s application to dismiss the complaint under s. 27(1)(c) of the Codeis denied.
Beverly Froese
Tribunal Member
Human Rights Tribunal