Disbrow v. University of Victoria Properties Investments Inc. and others, 2024 BCHRT 235
Date Issued: August 9, 2024
File: CS-003007
Indexed as: Disbrow v. University of Victoria Properties Investments Inc. and others, 2024 BCHRT 235
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:
Patricia Disbrow
COMPLAINANT
AND:
University of Victoria Properties Investments Inc., Uwe Bartley, and Heather Kerry
RESPONDENTS
REASONS FOR DECISION
Tribunal Member: Jessica Derynck
Counsel for the Complainant: Debra Febril
Counsel for the Respondents: Michael R. Mark
Date of Hearing: May 23 to 25, August 9, 2023
Location of Hearing: Videoconference
I INTRODUCTION
[1] Patricia Disbrow worked for University of Victoria Properties Investments Inc. [UVic Properties] as a security attendant for about eight years. She developed arthritis in her right knee during her employment and went off work on medical leave. She returned to work in January 2020, after recovering from knee replacement surgery, with a limitation on the number of flights of stairs she was able to walk up and down per shift. UVic Properties determined that it could not accommodate this disability-related limitation and terminated her employment.
[2] Ms. Disbrow filed a human rights complaint against UVic Properties, its Facilities Superintendent Uwe Bartley, and its Vice President, Finance, Heather Kerry [Respondents] on October 20, 2020. Ms. Disbrow alleges that the Respondents discriminated against her based on her physical disability by terminating her employment instead of accommodating her. She says there were reasonable accommodations available, including allowing her to use elevators to do her security patrols, reducing her patrol requirements, or giving her alternative work. She says the Respondents did not consider all reasonable possibilities for accommodation before firing her.
[3] The Respondents say there were no options that would have allowed them to accommodate Ms. Disbrow’s limitation without incurring undue hardship. They say it was not possible to allow Ms. Disbrow to use elevators or reduce her patrol requirements and still meet their obligations to property tenants. They also say Ms. Disbrow was not interested in working in a custodial position, which was the only potential option that might have allowed them to accommodate her.
[4] For the reasons below, I find that the Respondents could not have accommodated Ms. Disbrow’s disability-related limitation without incurring undue hardship. This means they have established a defence to the complaint, and the complaint is dismissed.
II BACKGROUND
[5] Ms. Disbrow was 64 years old at the time of the hearing. She moved to Victoria in 2010 and trained to work in security. UVic Properties hired her as a welcome desk and security attendant in October 2012 to patrol the Vancouver Island Technology Park [Tech Park]. Ms. Disbrow was initially hired as a part-time employee and became full-time in September 2013.
[6] The Tech Park is a commercial property with three buildings and several parking lots. Two of the buildings are similarly configured with two floors, basements, and upper mezzanines with mechanical rooms. The third building is referred to as the main building or the 200 building. It has three floors, a basement, and also has a mechanical room at the top of the building. The security office is on the second floor of the main building. The buildings have elevators that go between the basements and floors, but not to the mechanical rooms at the tops of the buildings. Tenants and guests use the elevators during the day, and they shut down on a timer overnight.
[7] UVic Properties provides 24-hour security services to the Tech Park every day of the year. The security staff consists of a security supervisor, four full-time security attendants, and between two and three part-time security attendants at any given time. The supervisor works 8-hour weekday shifts and liaises with tenants, deals with the security schedule and payroll, and addresses maintenance issues, among other tasks. Security attendants work eight-hour shifts to be present and patrol the property outside of office hours. Full-time security attendants work rotating afternoon/evening and overnight shifts all days of the week. Part-time security attendants work day shifts on weekends and statutory holidays and cover vacations and other leaves.
[8] Ms. Disbrow was diagnosed with arthritis in her right knee in 2017. She continued to work until November 1, 2018, when she went on medical leave.
[9] In October 2018 UVic Properties introduced a new system called TrackTik for monitoring security patrols at the Tech Park. Mr. Bartley advised in a memo to security staff on October 31, 2018, that the new system had “pucks” around the property, which security attendants were required to scan twice, in any order, during each eight-hour shift. Mr. Bartley explained that the scanning would be monitored and would provide follow-up information to tenants of the property if needed.
[10] Ms. Disbrow’s understanding before the TrackTik system came into place was that she was required to do two indoor patrols and two outdoor patrols of the Tech Park per shift and check each part of the property once between those patrols. Since this was her understanding, she did not patrol the entire property twice per shift, rather, she covered the entire property once per shift between her patrols. Once the TrackTik system was implemented it required her to patrol the entire property twice per shift. She perceived this as an increase to her workload.
[11] The Respondents explained to Ms. Disbrow at the time that the new system did not increase her workload, but that security attendants were always required to patrol the entire property twice per shift. They told her that the new system made it easier for UVic Properties to ensure that security attendants patrolled the entire property twice per shift and to be accountable to tenants. Once this system was introduced, it was clear to Ms. Disbrow that she was required to do two full patrols of the property per shift.
[12] Blake Armstrong was the security supervisor during Ms. Disbrow’s medical leave and when she returned to work. He testified for the Respondents. He explained at the hearing that each full patrol of the property takes him about an hour and a half. Patrick Conroy is another security officer and testified for Ms. Disbrow. He was 84 years old at the time of the hearing. He explained that each full patrol takes him up to two hours, depending on how quickly he moves through each area. The patrols require the security officers to walk up and down 20 flights of stairs per shift. They are not allowed to use elevators during their shifts.
[13] Once Ms. Disbrow understood the requirement to patrol the entire property twice per shift, she found this difficult because of her arthritis. She had been able to do patrols despite her knee arthritis up to that point but found she could not do so once it was clear that she had to visit each area twice. This was her reason for starting her medical leave.
[14] UVic Properties has a long-term disability [LTD] plan for employees. Ms. Disbrow received LTD payments under this plan.
[15] Ms. Disbrow had knee replacement surgery in February 2019. On May 16, 2019, she saw her surgeon, who said he had no concerns about limitations for Ms. Disbrow other than that she should avoid high impact activities. He thought she would be able to return to work one year after the surgery.
[16] The LTD provider referred Ms. Disbrow to rehabilitation services under her LTD claim. Her rehabilitation team created a gradual return to work [GRTW] plan that involved an increase in work hours and activity from week to week. Under the plan Ms. Disbrow was required to call a Vocational Rehabilitation Specialist [VRS] every two weeks to report her hours worked and review any successes or challenges.
[17] Ms. Disbrow commenced the GRTW plan on October 28, 2019, working four hour shifts three days per week with breaks and a limit of two consecutive flights of stairs. Ms. Disbrow found she was not yet able to continue this level of work and the plan was put on hold.
[18] A letter from the LTD provider to Ms. Disbrow dated November 28, 2019, explains that Ms. Disbrow gave the LTD provider a note from her doctor dated November 14, 2019, which said that she was not able to work for three months. The LTD provider said they reviewed that note along with information from the rehabilitation team and found no medical basis for her inability to work. The LTD provider explained that it would restart her GRTW, extend it to January 12, 2020, and continue to provide her with rehabilitation.
[19] Ms. Disbrow restarted the GRTW on November 25, 2019, again working four hours per day, three days per week, on Monday, Wednesday, and Friday. At this time her limitations were to one patrol per shift and three consecutive flights of stairs, with a micro-break before proceeding with more stairs.
[20] Ms. Disbrow worked in a supernumerary capacity throughout her GRTW plan, meaning she worked alongside another security officer. She increased her weekly work according to the GRTW plan. For the week of December 23, 2019, she worked six hours per day four days per week, with Wednesdays off, and began completing two patrols per shift. At this time, she was limited to six consecutive flights of stairs, again with micro-breaks before proceeding with additional stairs. For the week of December 30, 2019, Ms. Disbrow worked six hour shifts from Monday to Thursday. She had no set limitations on stairs at this point; the plan set out that she was to navigate stairs “as tolerated” and take micro-breaks of two to three minutes as needed.
[21] Ms. Disbrow used the elevators during her GRTW shifts. She did not believe this would be a problem because she was working alongside another security guard. She did not tell the Respondents or the LTD provider that she was using elevators during her shifts. She did not tell the VRS, or anyone else, that she was using elevators to avoid using stairs.
[22] For the week of January 6, 2020, Ms. Disbrow was scheduled under the GRTW plan to work seven-hour shifts Monday to Thursday. For the week of January 13, 2020, she was scheduled to work her full hours and duties.
[23] It is not clear whether Ms. Disbrow completed all of her GRTW shifts in the week of January 6, 2020. She did not return to her full hours and duties in the week of January 13, 2020.
[24] Ms. Kerry met with Ms. Disbrow at Ms. Disbrow’s request on January 8, 2020. Ms. Disbrow gave Ms. Kerry a form that her doctor completed on the same date, which said that Ms. Disbrow was permanently limited to “climbing stairs for 20 flights”. At this meeting Ms. Disbrow told Ms. Kerry that she could only walk up and down a total of 20 flights of stairs per shift, meaning she could navigate ten flights up and down, rather than walk up 20 flights that she would also need to walk back down. This meant she could only do half of the stairs required to patrol the property twice per shift.
[25] Ms. Disbrow asked Ms. Kerry whether, in the main building, she could look up and down the stairwells from the top and bottom but use the elevator instead of walking the stairs for her patrols.
[26] Ms. Disbrow’s evidence about her meeting with Ms. Kerry is internally inconsistent. She initially testified in direct examination that Ms. Kerry told her that she could not be accommodated. Later in her direct evidence she testified that Ms. Kerry asked her to have her doctor confirm in writing that her stair limitation was permanent so she could be accommodated.
[27] Ms. Kerry’s evidence is that she told Ms. Disbrow that it was not possible to accommodate her using the elevators. Ms. Kerry says she needed Ms. Disbrow’s doctor to clarify whether she could only walk up and down ten flights of stairs, or whether her limitation meant that she could climb and walk back down 20 flights, which would allow her to meet the requirements of her job. Ms. Kerry says she asked Ms. Disbrow to have her doctor clarify this. Ms. Kerry says there was also some discussion of whether Ms. Disbrow could work in a custodial position, which would be part-time but could have gone full-time, but Ms. Disbrow was not interested in working in any position other than a security position.
[28] Ms. Disbrow says Ms. Kerry did not bring up the possibility of a custodial position. Ms. Disbrow and Ms. Kerry both recall that Ms. Disbrow said she may be able to work in the security supervisor position. Ms. Kerry did not consider this possibility because the supervisor position was not open; Mr. Armstrong was in the position at the time.
[29] On January 9, 2020, Ms. Disbrow’s doctor updated the form he had completed to say “20 flights of stairs = (inclusive of up and down stairs total)”.
[30] Ms. Disbrow emailed Ms. Kerry on January 19, 2020, to follow up on their January 8 meeting. Ms. Disbrow said in her email that at the meeting Ms. Kerry had told her that she could not accommodate her “doctor’s orders” for her full-time return to work and would have to fill her shifts, and Mr. Armstrong had informed her that he did so the previous week. Ms. Disbrow said Ms. Kerry had asked her for her plans and she had responded that she would talk to her doctor, and she was waiting for an appointment with him. Ms. Disbrow said that she had spoken to the LTD provider about continuing on LTD.
[31] On January 21, 2020, Ms. Kerry advised Ms. Disbrow in a letter that her employment was terminated because UVic Properties was unable to accommodate her request to use the elevator for her patrol duties, and she was not able to fulfill the requirements of her position.
III ISSUE
[32] Section 13(1) of the Human Rights Code states, in part, that an employer must not refuse to continue to employ a person, or discriminate against a person regarding employment, because of that person’s physical disability. To establish her case, Ms. Disbrow must establish that she has a physical disability, she experienced an adverse impact with respect to her employment, and her disability was a factor: Moore v. BC (Education), 2012 SCC 61 at para. 33. There is no dispute that Ms. Disbrow has a disability – right knee arthritis that required knee replacement surgery – or that UVic Properties terminated her employment because she was not able to walk up and down a total of 40 flights of stairs per shift because of her disability. She has established her case.
[33] The Respondents may defend against the complaint by proving that their decision to terminate Ms. Disbrow’s employment was justified because the requirement for her to walk up and down a total of 40 flights of stairs per shift was a bona fide occupational requirement [BFOR]: Code, s. 13(4).
[34] To establish this, the Respondents must prove that: (1) they adopted the requirement of two full patrols per shift, which requires walking both up and down 20 flights of stairs, for a purpose rationally connected to the performance of the job, (2) they adopted this requirement in an honest and good faith belief that it was necessary to fulfill a legitimate work-related purpose, and (3) that the requirement is reasonably necessary to fulfill its purpose, meaning that they could not have accommodated Ms. Disbrow’s limitation of walking up and down 20 flights of stairs per shift without experiencing undue hardship: British Columbia (Public Service Employee Relations Commission) v. BCGSEU , [1999] 3 SCR 3 [Meiorin].
[35] There is no dispute that the Respondents meet the first two steps of the Meiorintest. The Respondents require security officers to complete two full patrols, including walking up and down the stairs, to be accountable to tenants, ensure the security of the stairwells, and ensure that security employees are not trapped in an elevator when working alone. This is rationally connected to the job of providing security on the premises, and UVic Properties adopted the requirement in good faith.
[36] The issue I must decide is whether the Respondents could have reasonably accommodated Ms. Disbrow’s disability-related limitation of walking up and down a maximum of 20 flights of stairs per shift to avoid terminating her employment without experiencing undue hardship. Specifically, I must decide whether they could have accommodated her by allowing her to use elevators, reducing her patrols, or giving her alternative work. I must also decide whether the Respondents considered all reasonable possibilities for accommodation before resorting to terminating Ms. Disbrow’s employment.
IV EVIDENCE AND CREDIBILITY
[37] Ms. Disbrow testified on her own behalf. She called Cayle Gendrin (a former security officer with UVic Properties), Patrick Conroy (a current part-time security officer with UVic properties) and David Collins (her former spouse) as witnesses. Ms. Kerry and Mr. Armstrong testified for the Respondents.
[38] Ms. Disbrow and Ms. Kerry each gave evidence about their meeting and discussion on January 8, 2020. This evidence is important to my decision, and Ms. Disbrow’s and Ms. Kerry’s evidence conflict. This has made it necessary for me to make findings of credibility and decide which evidence to prefer.
[39] Credibility involves an assessment of the extent to which a decision maker can rely on a witness’s testimony, considering both the sincerity of the witness, and the accuracy of their evidence: Bradshaw v. Stenner , 2010 BCSC 1398, aff’d 2012 BCCA 296, leave to appeal refused, [2012] S.C.C.A. No. 392 (QL) [Bradshaw] at para. 186. This involves consideration of factors including the ability and opportunity to observe events, firmness of memory, the ability to resist the influence of interest to modify recollection, consistency within the witness’s own testimony, harmony with independent evidence that has been accepted, whether the witness’s evidence seems unreasonable or unlikely, whether there is a motive to lie, and the witness’s general demeanour: Bradshaw at para. 186.
[40] In some cases, a witness’ evidence may not be reliable because they have “made a conscious decision not to tell the truth”: Youyi Group Holdings (Canada) Ltd. v. Brentwood Lanes Canada Ltd., 2019 BCSC 739 [Youyi] at para. 89. In other cases, a witness may make an honest effort to give truthful evidence but their testimony may not be reliable because of their inability to accurately observe, recall, or recount the event: R. v. H.C., 2009 ONCA 56 at para. 42; Youyiat paras. 89-90. In that case, if their testimony conflicts with the testimony of other witnesses who are better positioned to testify accurately, their evidence is not reliable: Klewchuk v. Burnaby (City) , 2022 BCHRT 29 [Klewchuk] at para. 15.
[41] I find that not all of Ms. Disbrow’s evidence is reliable. In some important areas her testimony was not consistent with clear documentary evidence that I accept. I also find that she did not make a sincere effort to give accurate evidence at the hearing. When I must decide whether to accept her evidence or Ms. Kerry’s, I prefer Ms. Kerry’s evidence and I explain my reasons for this below.
[42] I find that Mr. Gendrin, Mr. Conroy, Ms. Kerry, and Mr. Armstrong made sincere efforts to testify accurately, and I rely on their evidence. Mr. Collins’ evidence ultimately was not relevant to my decision.
V ANALYSIS AND DECISION
[43] The Tribunal set out the general principles of an employer’s duty to provide a reasonable accommodation where it is possible to do so without undue hardship in Klewchuk v. Burnaby (City), 2022 BCHRT 29 at paras. 409 to 414:
The purpose of an employer’s duty to accommodate is “to ensure that an employee who is able to work can do so” and that “persons who are otherwise fit to work are not unfairly excluded where working conditions can be adjusted without undue hardship”: Hydro-Québec v. Syndicat des employées de techniques professionnelles et de bureau d’Hydro-Québec, section locale 2000 (SCFP-FTQ), 2008 SCC 43 [Hydro-Québec] at para. 14. This purpose informs the scope and content of the duty, expressed through the interrelated concepts of reasonableness and undue hardship: Québec (Comm. des norms, de l’équité, de la santé et de la sécurité du travail) v. Caron , 2018 SCC [Caron] at para. 25.
The concept of “reasonable accommodation” requires employers to take reasonable and practical steps to assess whether working conditions can be changed to allow the employee to do their work and, if not, whether there is other work that they could do: Hydro-Québec at para. 17. It is an exercise in common sense and flexibility, in which both the process and substance of the accommodation are relevant: Meiorin; Kelly v. University of British Columbia (No. 3) , 2012 BCHRT 32 at para. 527, upheld in University of British Columbia v. Kelly , 2016 BCCA 271. Accommodation may include modifying working hours, changing or lightening duties, or authorizing staff transfers: Hydro-Québec at para. 17. However, as the term “reasonable” implies, this duty is not unlimited.
The concept of “undue hardship” sets the limit for the lengths that employers are required to go to, and the point at which further efforts become unreasonable. Inherent in the concept is the recognition that there may be some hardship in accommodating a person’s disability. Accommodation is not always easy, convenient, or cost-effective. Employers are required to consider options that may result in some hardship: Stewart v. Elk Valley Coal Corp , 2017 SCC 30 at para. 128 (per Gascon J, dissenting but not on this point); Council of Canadians with Disabilities v. VIA Rail Canada Inc. , 2007 SCC 15 [VIA Rail] at para. 122. It is only when the hardship becomes “undue” that the duty ends.
What is reasonable, and what hardship is undue, will vary “according to the characteristics of each enterprise, the specific needs of each employee, and the specific circumstances in which the decision is to be made”: McGill University Health Centre (Montreal General Hospital) v. Syndicat des employés de l’Hôpital général de Montréal , 2007 SCC 4 at para. 22. The point of undue hardship is reached “when reasonable means of accommodation are exhausted and only unreasonable or impractical options for accommodation remain”: VIA Rail at para. 130. In Thanh v. BC Ministry of Public Safety and Solicitor General , 2020 BCHRT 15, the Tribunal explained:
There may be a point at which it would be unreasonable to pursue an accommodation option. This may arise in circumstances where measures have little or no likelihood of success. That an accommodation option is “possible” does not mean that it must be done: Dunkley at para. 423. In cases where good faith and reasonable inquiries have been made, that lead to a conclusion of undue hardship, then the fact that there might be further inquiries which could be made is not relevant: Dunkley at para. 423. Ultimately, this analysis must be anchored in “common sense” and “flexibility”: Hydro-Québec at para 12. [at para. 100]
Accommodation can be a complex exercise. It can take time, as “medical information is obtained, assessments are done, work sites are investigated, and job functions researched”: Graham v. Richmond School District No. 38 , 2005 BCHRT 520 at para. 42. … I do not assess each individual incident in isolation from the bigger picture. Rather, I am required to take a global approach, considering the entire history of the matter: Hydro Quebec at para. 21; Buchner v. Emergency and Health Services Commission (No. 2) , 2008 BCHRT 317 at paras. 401-404.
Finally, accommodation is a collaborative process, requiring active participation and cooperation by the employee, employer and, in some cases, a union: Renaud. As the employee, Ms. Klewchuk’s obligation in the accommodation process is to bring forward the “facts relating to discrimination”, to facilitate implementation of reasonable proposals, and to accept reasonable accommodation: Renaud.
[44] The Respondents do not need to demonstrate that it would have been impossible to accommodate Ms. Disbrow’s limitation of walking up and down 20 flights of stairs per shift. Rather, they must demonstrate that they considered options short of terminating Ms. Disbrow’s employment, including options that may have resulted in some difficulty or hardship to them, and that the only possibilities were unreasonable or impractical. They must establish that there were no reasonable means of accommodation available that would have allowed Ms. Disbrow to remain employed without undue hardship to them.
[45] I consider, in turn, whether the Respondents have established that they could not have allowed Ms. Disbrow to use the elevator, reduced her patrol requirements, or had her do alternative work that did not require walking up and down 20 flights of stairs per shift, without experiencing undue hardship. I then consider whether the Respondents exhausted all reasonable possibilities for accommodation before terminating her employment.
A. Could the Respondents have reasonably accommodated Ms. Disbrow by allowing her to use elevators?
[46] UVic Properties does not allow security officers to use elevators during their patrols. Ms. Disbrow was aware of a policy against security officers using elevators when working alone, but up to March 2018 she believed that she was allowed to use them if other staff were on site. On March 28, 2018, her supervisor at the time advised her in a letter that she had been documented using building elevators during shifts, and she was expected to only use the stairs while working during afternoons and evenings. Ms. Disbrow signed the letter and wrote that she understood that a custodian counted as another staff member, but she would no longer use the elevators.
[47] When Ms. Disbrow met with Ms. Kerry on January 8, 2020, she understood that security officers are not allowed to use elevators for patrols and that she was asking Ms. Kerry for an exception to this rule as an accommodation.
[48] I find that the Respondents could not have granted Ms. Disbrow an exception to allow her to use the elevators during patrols without experiencing undue hardship.
[49] The Respondents’ witnesses testified about the impracticality and risk involved if security were to use elevators. Mr. Armstrong explained that the buildings have had issues with the elevators shutting down and that there is a risk of someone using the elevators becoming trapped when this happens. He explained that if an elevator were to get stuck during the day, anyone in the elevator would use the call button to call the front desk, and he would then call someone to service the elevator and get them out. Ms. Kerry explained that if a security attendant were to get stuck in an elevator during an evening or night shift, pressing the elevator call button would not assist them because the button calls the security attendant’s phone. Assuming that the security attendant had phone service from the elevator, they would need to call for elevator repair from there.
[50] Ms. Disbrow agrees that if she were to be trapped in an elevator during a shift that she would need to call an outside company for help from the elevator. She testified that if she were to be trapped in an elevator during a shift, she would call an elevator repair company, and she would also need to call a mobile patrol service, which UVic Properties contracts for mobile security patrols, to let the elevator service into the building. Ms. Kerry testified that it would likely take between 30 and 45 minutes for an elevator service to arrive on site.
[51] The Respondents submit that this possibility creates a safety concern and would impact the provision of security at the property.
[52] If Ms. Disbrow were to use elevators during her shifts and became stuck in one, the best-case scenario is that she would have her phone with her and would have service, would be able to call for help, and would wait for 30 to 45 minutes for help to arrive, assuming that the mobile patrol company would arrive before the elevator service or at the same time. She would not be able to provide security services at the property during this time. Ms. Kerry explained that the security attendant on site is the marshal responsible for safety in case of a fire or other emergency, and that some tenants come to the property outside of daytime working hours. She says it would not be acceptable to have the security attendant unavailable for 30 to 45 minutes or more.
[53] I am persuaded that it would be impractical for the Respondents to allow Ms. Disbrow to use the elevators during her shifts, and that doing so would create a risk that amounts to undue hardship. If she were to be trapped in a broken-down elevator during a shift, possibilities exist beyond the best-case scenario, including that she may be stuck for a longer period of time, or that the situation that may be unsafe for her. Even based on the best-case scenario, I find it is not reasonable for the Respondents to take on the risk that she could be trapped for 30 to 45 minutes waiting for an elevator service, and for the time it would take to fix the issue, which would mean they would not be providing security services during that time period.
[54] Ms. Disbrow says she is not aware that anyone has ever been stuck in the elevators and submits that it is unlikely that she would ever become trapped in an elevator during a shift. While I cannot find that there is any particular level of risk that Ms. Disbrow would become stuck in an elevator at some point (I cannot say, for example, that the risk is more than 50% or less than 1%), I find that it is a possibility. Mr. Armstrong is in a better position than Ms. Disbrow to give evidence about the condition of the elevators because he works during the day when the elevators are in use. Even if the risk is remote, I find that it is not reasonable or practical for the Respondents to take this risk, and doing so would be undue hardship.
B. Could the Respondents have reasonably accommodated Ms. Disbrow by reducing her patrol requirements?
[55] Security attendants are required to do two full patrols of the Tech Park during each eight-hour shift. Two full patrols of the three buildings, including checking the basements and the electrical rooms on the upper mezzanines, requires walking up and down 20 flights of stairs per shift.
[56] Ms. Disbrow believes the Respondents could have reasonably accommodated her by reducing her patrol requirements. She submits that the Respondents refused to accommodate her arthritis symptoms by reducing her workload in October 2018 when the TrackTik system was introduced, and then they would not allow her to skip part of her patrols to limit her stair requirements to 20 flights total up and down in January 2020.
[57] The introduction of the TrackTik system in October 2018 is not within the scope of the complaint, which is limited to the issue of the termination of Ms. Disbrow’s employment in January 2020. The evidence related to introduction of the TrackTik system is only relevant because the Respondents’ use of the system makes their patrol requirements clear, and Ms. Disbrow only understood her patrol requirements when the system was introduced.
[58] Reducing Ms. Disbrow’s patrol requirements to cut the number of stairs in half would mean requiring her to do one patrol of the buildings during each shift instead of two. I find that the Respondents could not reasonably accommodate her in this manner without undue hardship.
[59] Mr. Armstrong says two full patrols is the bare minimum for providing security at the Tech Park. He compares this requirement to other security jobs he has worked where patrols were constant. He says the patrols, and therefore the stairs, may be broken up so attendants patrol different areas at different times in a shift, but two full patrols must be done to meet tenants’ expectations. His evidence is that checking the mechanical rooms at the top of each building is an important part of patrols because they need to check for any maintenance issues or hazards. He also testified that many tenants use the stairwells, and Ms. Kerry testified that tenants come to the buildings after hours. Mr. Armstrong says this is one reason that it is important to check the stairwells. He also explained that the TrackTik system allows the Respondents to verify to tenants that security attendants checked each area twice per shift, as well as providing information about where a security attendant was at the time of any incidents that may happen.
[60] Ms. Kerry’s evidence is that tenants’ lease agreements include full-time security, which must be provided according to industry standards. She says two full patrols per eight-hour shift meets industry standards for providing security to tenants, and anything less would not meet those standards.
[61] Ms. Disbrow submits that the Respondents have not met their onus of establishing that reducing her patrols would impact their obligations to tenants and points out that they did not introduce their tenant contracts as evidence.
[62] I agree that it would have been helpful to see tenant contracts that set out the terms of the security services. However, even without examples of contracts, I accept Ms. Kerry’s and Mr. Armstrong’s evidence that they must provide a certain level of security service to tenants, and that anything less than two patrols per shift would not allow them to provide this level of service.
[63] I considered that UVic Properties provides security at the Tech Park 24 hours per day every day of the year, two full patrols of the property takes up to four hours of an eight-hour shift, and Mr. Armstrong considers this to be a bare minimum. I also considered that the Respondents introduced the TrackTik system partially so they could demonstrate to tenants that security attendants were performing two full patrols per shift. I accept that they cannot allow Ms. Disbrow to do less and still meet their obligations to tenants.
[64] Ms. Disbrow submits that the Respondents could have adjusted the requirements of other employees’ shifts so those working before or after her could do an extra patrol, which would ultimately provide the same level of security coverage to tenants. There is no evidence that the Respondents considered this possibility, and no evidence that Ms. Disbrow suggested this to Ms. Kerry at the time. In any case, accommodating Ms. Disbrow in this manner would mean there would only ever be one indoor patrol during her eight-hour afternoon/evening or overnight shifts, and that employees working before or after her would always have an increased workload.
[65] The Respondents’ and Ms. Disbrow’s witnesses testified that it is important to avoid following patterns in patrols so they remain unpredictable. Ms. Disbrow consistently doing only one patrol per shift would not allow her to do this. I find it also would not be reasonable for the Respondents to increase the other security attendants’ workloads to this extent. This would not be a reasonable or practical accommodation. The Respondents did not fail to accommodate Ms. Disbrow to the point of undue hardship on the basis that they did not consider this idea at the time.
C. Could the Respondents have reasonably accommodated Ms. Disbrow with alternative work?
[66] The Respondents say there were no positions open in January 2020 that they could have considered for Ms. Disbrow. Ms. Kerry says she considered creating a part-time custodial coverage position for Ms. Disbrow that may have eventually turned into a full-time position, but Ms. Disbrow was not interested in this and only wanted to be accommodated in a security position.
[67] Ms. Disbrow says Ms. Kerry never actually offered her the option of a custodial relief position, and if she had, she likely would have accepted it so she could continue working. Ms. Disbrow also says the Respondents did not fully explore alternative options for her to continue working.
[68] I find that the Respondents could not have reasonably accommodated Ms. Disbrow with alternative work without undue hardship. I accept the Respondents’ evidence that there were no open positions at the time. I also accept Ms. Kerry’s evidence that she suggested the option of custodial work to Ms. Disbrow but did not pursue this option because Ms. Disbrow said she was not interested.
[69] I first address the Respondents’ evidence that there were no open positions that Ms. Disbrow could have transferred into when she raised her need for accommodation.
[70] Ms. Kerry is responsible for finance, IT, and HR at UVic Properties. She explained that in addition to the security staff, which consists of the supervisor, four full-time employees, and two to three part-time employees at any given time, there is also a director of facilities, four to five custodial staff, three accounting employees, an administrative assistant, and about four facilities employees who do maintenance work. She says they have added landscaping to the facilities work since the events in the complaint.
[71] Ms. Kerry’s evidence is that she did not have any knowledge of skills Ms. Disbrow has that would have allowed her to work in an office position or facilities position, but she did not need to inquire about this because none of these positions were open at the time. Ms. Disbrow does not dispute this.
[72] Accommodating Ms. Disbrow in a part-time security attendant position was not an option because the part-time attendants also work eight-hour shifts with the requirement to do two full patrols per shift. Ms. Disbrow suggested that she could work in a supervisor position, because the security supervisor works during the day during the week and is not required to do two full patrols per shift, but Mr. Armstrong was in this position at the time.
[73] I accept that the Respondents did not have any vacant positions at the time that they could have used to provide Ms. Disbrow with alternative work.
[74] I next address the issue of whether Ms. Kerry suggested the possibility of creating a custodial coverage position to Ms. Disbrow. To do this I must explain why I prefer Ms. Kerry’s evidence over Ms. Disbrow’s about the January 8, 2020, discussion between them.
[75] I find that Ms. Disbrow did not make a sincere effort to give accurate evidence at the hearing, including about her January 8, 2020, discussion with Ms. Kerry. I find that she was not able to resist the influence of her own interests on her evidence.
[76] Ms. Disbrow initially testified that she did not expect that it would be an issue to be accommodated by using elevators, but when she spoke to Ms. Kerry in her office, Ms. Kerry told her that she could not be accommodated. Ms. Disbrow also testified that she asked about working in another position, but Ms. Kerry told her they didn’t have any and it was “that straightforward and done”, although she says she suggested that she could work in the supervisor position and Ms. Kerry rejected this.
[77] Later in her direct examination Ms. Disbrow testified that Ms. Kerry asked her to have her doctor confirm in writing that her stair limitation was permanent so she could be accommodated. Ms. Disbrow testified that she believed that she would be accommodated and scheduled for her full duties and hours the following week after her doctor clarified that her limitation was permanent. This evidence is inconsistent with her earlier evidence. Her evidence that Ms. Kerry immediately told her that she could not be accommodated is consistent with Ms. Kerry’s evidence and documentary evidence. I do not accept that Ms. Disbrow left the January 8 meeting believing that she could be accommodated with use of the elevators.
[78] Ms. Disbrow emailed Ms. Kerry on January 19, 2020, and said:
I’m following up on our conversation of January 8th. You told me that you couldn’t accommodate my doctor’s orders for my full time return to work and therefore would have to fill my shifts. Blake has informed me that he did that last week. You asked me my plans and I responded that I’d talk to my doctor. I am waiting for an appointment with him. I have spoken to BC Life regarding continuing on long term disability and following up on their information. I’ll drop off a check for the insurance this week. I will contact Blake with regards to this also.
[79] Ms. Kerry’s evidence is also that she asked Ms. Disbrow to have her doctor clarify whether she could walk up and down ten or twenty flights per shift, not whether her limitation was permanent. Ms. Kerry’s evidence is more consistent with the doctor’s form that was completed on January 8 and had a clarification note added on January 9. On January 8 the doctor wrote that Ms. Disbrow’s limitation was permanent. Ms. Kerry already had this information. The update on January 9 simply clarifies that Ms. Disbrow’s is limited to walking 20 flights of stairs up and down in total.
[80] Ms. Disbrow testified in cross examination that Ms. Kerry did not discuss the option of a part-time custodian position, but simply said that there was nothing there for her. I find that Ms. Kerry gave a more consistent and reliable account of their discussion than Ms. Disbrow, and it is more likely than not that Ms. Kerry did raise the possibility of Ms. Disbrow working in a custodian position and Ms. Disbrow rejected this suggestion.
[81] Ms. Disbrow agrees that she suggested that she could do the supervisor job, so it is common ground that there was some discussion of alternative work. Ms. Kerry’s evidence that Ms. Disbrow was not interested in a custodian position is also consistent with Ms. Disbrow’s focus on using the elevators and her belief that the Respondents should accommodate her in this manner so she could continue to work in her own position.
[82] I find that Ms. Disbrow wanted to be accommodated by use of the elevators and held the view that the Respondents should accommodate her in this manner. If she truly believed that this accommodation would not be a problem for the Respondents, this was not a reasonable belief. Ms. Disbrow knew by March 2018 that security attendants were not allowed to use the elevators for patrols. Despite this, she used the elevators during her GRTW shifts rather than using the GRTW to determine, and increase, her tolerance to using the stairs.
[83] Ms. Disbrow did not tell the LTD provider that she was using elevators during her GRTW. She proceeded through the GRTW as if she would be able to use the elevators once she was working full hours and duties but did not raise this with the Respondents until January 8, 2020. Ms. Disbrow testified that she did not think it was a problem to use the elevators during her GRTW because she was supernumerary and was not working alone, but she did not explain why she did not use her GRTW schedule to determine whether she could walk up and down the stairs required to do her job, or why she did not raise any issues she had with the LTD provider.
[84] I find it is more likely than not that Ms. Disbrow believed that the Respondents would have to let her use the elevators as an accommodation once she told them that she could not do her full patrols otherwise. Her focus on what she believed was her right to be accommodated using the elevators is consistent with Ms. Kerry’s evidence that she was not interested in doing custodial work, but only wanted to be accommodated in her own position. I find it is more likely than not that Ms. Kerry suggested the possibility of custodial work to Ms. Disbrow, and Ms. Disbrow rejected this because she only wanted to work in a security position.
[85] Once Ms. Disbrow said she was not interested in a custodial position, I find that the Respondents were not obligated to do anything further to accommodate her in such a position.
[86] I find that the Respondents could not have accommodated Ms. Disbrow by giving her other work to do without undue hardship because there was no alternative work available for her, other than the possibility of a new custodial coverage position, which I accept she said she was not interested in.
D. Did the Respondents exhaust all reasonable possibilities for accommodation before terminating Ms. Disbrow’s employment?
[87] I find that the Respondents exhausted all reasonable possibilities for accommodating Ms. Disbrow’s disability before terminating her employment.
[88] Ms. Disbrow submits that the Respondents should have suggested alternative possibilities for accommodating her, with her input, after rejecting the possibility of her using the elevator instead of unilaterally deciding that it was not possible and terminating her employment. She says that the Respondents should have considered whether she could use a bicycle or mobility device for her outdoor patrols to reduce her number of steps.
[89] Ms. Disbrow was obligated to participate in her own accommodation. I find it was reasonable for the Respondents to rely on the information Ms. Disbrow gave them about her ability to do her job. The information Ms. Disbrow gave Ms. Kerry was that she was not able to walk more than 20 flights of stairs up and down in total per shift. The Respondents were not obligated to consider whether or how they may have been able to reduce how much Ms. Disbrow needed to walk for her outdoor patrols when potential options like a bicycle or mobility device would not have addressed her inability to walk up and down the number of stairs required to do her job.
[90] Ms. Disbrow also submits that she, her doctor, the LTD provider, and the Respondents each had different perspectives on her post-surgery limitations, and the issue should have been fully investigated before the Respondents terminated her employment. She says she completed her GRTW and was cleared to return to work, but instead of exhausting all options for allowing her to return, the Respondents terminated her employment, and then her LTD benefits ended.
[91] Ms. Disbrow’s explanation of what happened is not accurate. It is not clear whether or not she worked all of her GRTW shifts during the week of January 6, 2020, or how much she relied on elevators by this time in her GRTW. It is clear, however, that she did not return to full hours and duties the week of January 13, 2020, because she advised Ms. Kerry that she could not walk up and down the stairs required. She did not actually complete her GRTW.
[92] It is also clear from the LTD provider’s letter to Ms. Disbrow dated November 28, 2019, that her LTD claim was only extended to January 12, 2020. A letter from the LTD provider to Ms. Disbrow dated January 10, 2020, advised her that her final benefits to January 12, 2020, had been issued and her claim was closed because her full return to work was expected as of January 13, 2020. This letter enclosed information about the LTD provider’s appeal process in case she wished to appeal the closure of her claim.
[93] Ms. Disbrow testified that her LTD benefits ended because the Respondents terminated her employment, but this is not the case. Her claim ended because the LTD provider understood that she was returning to her full hours and duties. In cross examination Ms. Disbrow testified that she thought the LTD provider stopped paying her benefits when she was fired. When the Respondents’ counsel asked Ms. Disbrow about the LTD provider’s January 10, 2020, letter, Ms. Disbrow said that she talked to someone at the LTD provider about appealing their decision, but that individual told her that an appeal would not be successful, and she believed that she was going back to work, so she did not pursue an appeal.
[94] I find that Ms. Disbrow did not make a sincere effort to give accurate evidence on this point. In her email to Ms. Kerry on January 19, 2020, Ms. Disbrow said she had spoken to the LTD provider about continuing on LTD and was following up on their information. Ms. Kerry told her on January 8 that she could not be accommodated with use of the elevators, and her employment was terminated on January 21. She cannot have reasonably believed by the time she told Ms. Kerry she was engaging with the LTD provider on January 19 that she was returning to work despite being unable to walk up and down the required number of stairs. It is not clear whether the LTD provider had the information from Ms. Disbrow’s doctor that she provided to the Respondents, but if the LTD provider did not have this information, it is because Ms. Disbrow chose not to provide it to them, just as she chose not to advise them that she relied on elevators during her GRTW.
[95] The information the Respondents had when they terminated Ms. Disbrow’s employment was that she was permanently limited to walking up and down half of the required number of stairs per shift, and that she was following up with information from the LTD provider about the possibility of continuing on LTD. The Respondents had covered Ms. Disbrow’s shifts for 15 months during her medical leave, using temporary and part-time employees to do so, with Mr. Armstrong and other employees working extended shifts at times when there was no other option for coverage, when they understood that she would return to work after recovering from her surgery.
[96] I accept Ms. Kerry’s evidence that the Respondents only terminated Ms. Disbrow’s employment based on the information that her limitation was permanent, and they could see no reasonable possibilities for an accommodation. I find that the Respondents exhausted all reasonable possibilities for accommodation before terminating Ms. Disbrow’s employment.
VI CONCLUSION
[97] The Respondents have established that they could not have reasonably accommodated Ms. Disbrow without undue hardship. They have established a defence to the complaint.
[98] The complaint is dismissed under s. 37(1) of the Code .
Jessica Derynck
Tribunal Member