Complainant v. The Company and another, 2024 BCHRT 244
Date Issued: August 16, 2024
File: CS-001946
Indexed as: Complainant v. The Company and another, 2024 BCHRT 244
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:
Complainant
COMPLAINANT
AND:
The Company and the Manager
RESPONDENTS
REASONS FOR DECISION
APPLICATION TO DISMISS A COMPLAINT
Section 27(1)(c), (d)(ii)
Tribunal Member: Edward Takayanagi
On their own behalf: The Complainant
Counsel for the Respondents: Brett Weninger
I INTRODUCTION
[1] This is a complaint arising from the breakdown of an employment relationship. The Complainant alleges that her former employer, The Company, and her Manager [together the Respondents] discriminated against her in employment based on her physical and mental disability contrary to s. 13 of the Human Rights Code. She alleges she developed mental disabilities because the Manager harassed her, and the Company did not take her complaints about the Manager’s behaviour seriously to address the alleged harassment.
[2] The Respondents deny discriminating and say that their interactions with the Complainant was not harassment connected to her personal characteristics. They further say they appropriately dealt with the Complainant’s allegation of harassment by conducting a workplace investigation. The Respondents apply to dismiss the complaint under s. 27(1)(c) and (d)(ii) of the Code. I find it most efficient to deal with this application under s. 27(1)(c) on the basis that the complaint has no reasonable prospect of succeeding at a hearing.
[3] The Respondents also apply to anonymize the names of all parties. The Complainant opposes the application to anonymize.
[4] I will first consider the application for anonymization. For the reasons that follow, I find it appropriate to anonymize the names of the parties as their privacy interests at this stage outweigh the public interest.
[5] Next, I will consider whether there is no reasonable prospect the Complainant can prove at a hearing that there is a connection between her mental or physical disability, and the alleged adverse impact. For the following, reasons, I find there is not, and I dismiss the complaint.
[6] While I do not refer to it all in my decision, I have considered all of the information filed by the parties in relation to the applications. In these reasons, I only refer to what is necessary to explain my decision.
II BACKGROUND
[7] The Company is in the business of providing health, rehabilitation, and employment services to injured workers. The Manager is an employee of the Company and was the direct supervisor of the Complainant.
[8] The Complainant first worked for the Company from 2013 to 2015. During that time the Complainant met the Manager and the two became friends. In October 2018, the Complainant was rehired by the Company.
[9] On July 12, 2019, the Complainant messaged the Manager to say that she was involved in a motor vehicle accident and needed to take some time off from work. The Complainant said she did not want to take a medical leave and instead opted to use her vacation time and personal days.
[10] On July 22, 2019, the Complainant returned to work on a part-time basis working four hours a day. The Manager said this was fine and that the Complainant could increase her hours when she felt able to do so.
[11] On July 25, 2019, the Complainant emailed the Manager and said she had sufficiently recovered from her injuries and could return to full-time hours the next week.
[12] On August 7, 2019, while the Manager was away on vacation, the Complainant emailed the Company a note from her doctor saying that, due to the motor vehicle accident injuries she would need to be off work for a period of four additional weeks effective immediately.
[13] On August 9, 2019, the Manager returned from vacation and called the Complainant to make arrangements for the Complainant to be off work for four weeks. The Manager expressed concern that the doctor’s note appeared to contradict the Complainant’s earlier assertion that she had recovered from the motor vehicle accident injuries. The Manager asked if the Complainant would be able to return to work after four weeks and said she could support a longer leave if necessary. The Complainant said she did not know when she would be able to return to work, provided no additional information, and hung up on the Manager.
[14] The Manager sent text messages to the Complainant on August 9 and August 10 expressing concern about the Complainant’s behaviour. She wrote, “You were my best friend. Am I losing it?” and “ignoring me – true friends would never do that. [Complainant]! What are you doing???” The Complainant did not respond.
[15] On August 12, 2019, the Complainant came to work to drop off work equipment. The Manager encountered the Complainant in the parking lot and attempted to start a conversation. The Complainant did not respond to the Manager and drove away.
[16] On the same day the Complainant made a complaint about her interactions with the Manager in the parking lot and the previous days to the Company’s Human Resources department. She said she was bullied by the Manager because of her race and colour.
[17] The Company began an investigation of the Manager’s conduct pursuant to its harassment policy. The investigation was conducted by the Company’s director of Human Resources who interviewed the Manager and the Complainant and reviewed the messages exchanged. The Manager was directed not to contact the Complainant.
[18] The Complainant remained off work. On August 28, 2019, she provided the Company a note from a doctor saying she had developed anxiety and depressive symptoms from her interactions with the Manager. She provided further doctor’s notes on September 26, 2019, and October 25, 2019, saying she will continue to be off work.
[19] In or about October 2019, the Company concluded its investigation. The Company found some of the Manager’s conduct in sending text messages to the Complainant constituted harassment. The Company did not find that the harassment was related to the Complainant’s race and colour as she alleged. The Company issued a warning letter to the Manager. The Manager acknowledged her behavior was inappropriate. She took a respectful workplace course and drafted a letter of apology to the Complainant.
[20] On October 11, 2019, the Company sent the Complainant a letter stating the results of the investigation and that when she was able to return to work the Company would make arrangements to prevent interactions with the Manager.
[21] On November 25, 2019, the Complainant resigned from the Company.
III DECISION
A. Application to Limit Publication: Rule 5(6)
[22] The Respondents seek an order anonymizing the names of all parties. The Respondents argue that anonymizing this decision would protect their reputational interests which allow them to serve vulnerable members of the public by providing health and employment services. They say that their reputational interest can suffer from a complaint alleging a human rights violation even if that complaint is dismissed. They also argue that anonymizing this decision will protect their relationships with patients and clients and would protect the Complainant’s sensitive medical and personal information.
[23] The Complainant opposes the application and says the parties’ names should only be anonymized where privacy interests outweigh the public interest. She says the names of the Respondents should be made public to hold the Respondents accountable for their alleged discrimination and any damage to reputation is an inherent risk of doing business.
[24] The Tribunal’s proceedings 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.
[25] 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).
[26] In this case, the parties’ privacy interests, stage of proceeding, and nature of the allegations are factors that support anonymizing the parties’ names and identifying information.
[27] The Company is in the business of providing health, rehabilitation, and employment services to workers. The Respondents say that publication of their names would negatively impact their reputation in the community and ability to provide services to clients. The Tribunal has noted that “irreparable harm that may flow from the destruction of a person’s, particularly a doctor’s or other professional’s, reputation by unproven allegations of misconduct or, as in this case, violation of a person’s human rights, has also been recognized in law:” Mr. C v. The Clinic and another, 2016 BCHRT 192 at para. 32.
[28] The anonymization application arises in the context of a preliminary application to dismiss the complaint. The allegations are unproven at this stage, which affords greater scope for limiting public access. I have ultimately dismissed the complaint prior to hearing and no findings have yet been made on the merits of the complaint: JW v. LS , 2023 BCHRT 30 at para. 25.
[29] In my view restricting publication of the parties’ names minimally impairs the openness of this proceeding as it relates to only a “sliver” of information. The public will still be able to understand the complaint and the Tribunal’s decision without knowing the names of the parties.
[30] Further, while the Complainant says they do not seek to have their name anonymized, I am persuaded by the Respondents argument that there is substantial risk of identifying all parties through association if the identity of any one party is revealed. The Respondents say there are only a few companies that provide similar health and employment services in the province.
[31] Therefore, I make an order that for any documents made available to the public, the Tribunal will refer to the individual participants as the Complainant, the Manager and the corporate respondent as the Company.
B. Section 27(1)(c)
[32] The Respondents apply to dismiss the complaint on the basis that it has no reasonable prospect of success: Code,s. 27(1)(c). 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.
[33] The Tribunal does not make findings of fact under s. 27(1)(c). Instead, the Tribunal looks at the evidence to decide whether “there is no reasonable prospect that findings of fact that would support the complaint could be made on a balance of probabilities after a full hearing of the evidence”: Berezoutskaia v. British Columbia (Human Rights Tribunal) , 2006 BCCA 95 at para. 22, leave to appeal ref’d [2006] SCCA No. 171. The Tribunal must base its decision on the materials filed by the parties, and not on speculation about what evidence may be filed at the hearing: University of British Columbia v. Chan, 2013 BCSC 942 at para. 77.
[34] A dismissal application is not the same as a hearing: Lord v. Fraser Health Authority, 2021 BCSC 2176 at para. 20; SEPQA v. Canadian Human Rights Commission , [1989] 2 SCR 879 at 899. The threshold to advance a complaint to a hearing is low. In a dismissal application, a complainant does not have to prove their complaint or show the Tribunal all the evidence they may introduce at a hearing. They only have to show that the evidence takes their complaint out of the realm of conjecture: Workers’ Compensation Appeal Tribunal v. Hill, 2011 BCCA 49 at para. 27.
[35] To prove her complaint at a hearing, the Complainant will have to prove that she has a characteristic protected by the Code , she was adversely impacted in employment and her protected characteristic was a factor in the adverse impact: Moore v. British Columbia (Education), 2012 SCC 61 at para. 33.
[36] The Respondents say there is no reasonable prospect the complaint will succeed because the Complainant has not alleged any facts from which it could be reasonably inferred that she has a mental disability or physical disability that was a factor in the alleged adverse impact.
[37] The Tribunal accepted the complaint on the grounds of mental disability and physical disability. In her submissions the Complainant says that she developed disabilities because of her interactions with the Manager. She says she developed anxiety, depression, headaches, insomnia and memory problems because of her interactions with the Manager on August 9, 2019. She says the issue for the Tribunal to determine is “whether the abuse by the Respondent [Manager] caused the mental disability complained of by the Complainant.”
[38] I understand the Complainant is saying she had no pre-existing mental or physical disability before August 9, 2019, when she interacted with the Manager. She does not allege that the Respondents discriminated against her because of or on the basis of a disability but says she developed disabilities because of the conduct of the Manager. In her response to the dismissal application, she says:
The crux of the complaint is this. The actions of the Respondent [Manager] led to the Complainant suffering a mental disability. The Respondents failed in their duty of care to the Complainant.
[39] The Complainant also says the Company’s response to her complaint about the Manager’s conduct was inappropriate and resulted in the Complainant resigning from the Company. She says the Company had a duty to inquire as to whether the Manager’s conduct on August 9, 2019, caused the Complainant to develop a disability.
[40] I am persuaded that there is no reasonable prospect the complaint could succeed at a hearing.
[41] First, the Code protects against discrimination on the grounds of a protected characteristic. However, an allegation that a particular action or inaction caused a person to develop a mental or physical disability, is not on its own, a basis for finding discrimination contrary to the Code: Tsai v Tsai, 2004 BCHRT 386 at para. 10. To prover her complaint the Complainant’s protected characteristic must have been a factor in the adverse impact or treatment experienced.
[42] In these circumstances, I am persuaded the complaint has no reasonable prospect of succeeding because even if the Complainant established that she developed her disabilities as a result of her interaction with the Manager, the allegations do not set out facts from which a contravention of the Code could be proved.
[43] Next, while the Complainant says the Company failed to fulfill their duty to inquire about the effects of the Manager’s conduct on the Complainant, the evidence before me contradicts the Complainant’s assertion. The evidence before me is that after the Complainant reported being bullied on August 12, 2019, the Company began an investigation of the Manager’s conduct pursuant to its harassment policy. The materials also show the Company communicated with the Complainant when she was on her medical leave and invited her to discuss potential accommodations.
[44] The Tribunal has consistently confirmed that someone bringing a complaint must demonstrate that they participated in any search for accommodation: Central Okanagan School District v. Renaud, 1992 CanLII 81 (SCC), [1992] 2 SCR 970 at p. 994.
[45] Based on the materials before me, I am persuaded that the Complainant has no reasonable prospect of proving that the Respondents failed to inquire or accommodate the disabilities she developed after her interaction with the Manager on August 12, 2019. This is because the evidence and materials before me contradict the Complainant’s assertion that the Respondents did not respond to her complaint of bullying. The materials are consistent with the Respondents’ position that they investigated the Complainant’s complaint of bullying by the Manager, and subsequently offered to discuss with the Complainant any accommodation that she required for a return to work. The evidence supports the Respondents position that the Complainant did not engage in accommodation discussions and ultimately ended the employment. Under the circumstances, I find there is no reasonable prospect the Complainant would be successful in showing that she suffered an adverse impact related to her disability at a hearing.
[46] Therefore, I allow the application and dismiss the complaint against the Respondents.
C. CONCLUSION
[47] I allow the application and dismiss the complaint under s.27(1)(c).
Edward Takayanagi
Tribunal Member