Bains v. Horizon North Logistics Inc., 2024 BCHRT 247
Date Issued: August 27, 2024
File: CS-002397
Indexed as: Bains v. Horizon North Logistics Inc., 2024 BCHRT 247
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:
Rikki Bains
COMPLAINANT
AND:
Horizon North Logistics Inc.
RESPONDENT
REASONS FOR DECISION
APPLICATION TO DISMISS A COMPLAINT
Section 27(1)(c)
Tribunal Member: Devyn Cousineau
Counsel for the Complainant: David M. Brown
Counsel for the Respondent: Dean A. Crawford, KC
I INTRODUCTION
[1] This is a decision about whether to dismiss Rikki Bains’ human rights complaint without a hearing.
[2] Mr. Bains worked as a Lodge Accommodations Manager for Horizon North Logistics. In February 2020, Mr. Bains says that he was struggling with mental health and substance use issues. One evening when he was working as the on-call manager, he left the Lodge and went drinking with a co-worker. He arrived for his shift the following morning still impaired by the effects of alcohol and an illegal substance. As a result, Horizon terminated his employment.
[3] In this complaint, Mr. Bains says that his termination was discrimination based on his mental disabilities, in violation of s. 13 of the Human Rights Code. He argues that Horizon knew or ought to have known that he had mental disabilities and that (1) it treated him more harshly than other employees because of those disabilities, and/or (2) it was obliged to inquire about whether his conduct giving rise to the termination related to a disability.
[4] Horizon asks the Human Rights Tribunal to dismiss the complaint because it has no reasonable prospect of success: Code,s. 27(1)(c). It argues there is no evidence to support that Mr. Bains’ mental disability played any role in his termination. It further argues that Mr. Bains never told any of his managers or supervisors about his mental disabilities, and that Horizon had no reason to inquire about whether Mr. Bains’ conduct was disability-related.
[5] There is no dispute in this complaint that Mr. Bains is a very hard worker and was a valued employee at Horizon. Between 2014 and 2020, he was promoted from sandwich maker to manager of one of Horizon’s flagship locations. This is impressive. There is evidence that the stress and pressure of his job took a toll on Mr. Bains’ mental health in early 2020, and the sudden termination of his employment significantly impacted his well-being. My decision should not be read to question or undermine any of this. My decision is not about whether the termination was fair or right. It is only about whether Mr. Bains has no reasonable prospect of proving a discriminatory connection between his termination and a disability.
[6] Based on the evidence before me, I have concluded that Mr. Bains has no reasonable prospect of proving that his mental disabilities were a factor in the termination of his employment. Rather, Horizon has persuaded me it is reasonably certain to prove that he was only terminated for leaving the Lodge, becoming impaired while on-call, and reporting for work still under the effects of alcohol and an illegal substance. Mr. Bains’ evidence is insufficient to prove that this conduct arose because of his mental disabilities, including a substance use disorder, or that Horizon targeted him for termination because of his mental disabilities. The complaint is dismissed.
II DECISION
[7] This Tribunal has a gatekeeping power to dismiss complaints that do not warrant the time and expense of a hearing. In this case, Horizon argues that the complaint should be dismissed because it has no reasonable prospect of success: Code,s. 27(1)(c). The onus is on Horizon to establish the basis for dismissal.
[8] In considering this application, I do not make findings of fact. Instead, I look 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. I must base my 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. Bains must prove: (1) he has mental disabilities protected by the Code,(2) he was terminated from his employment, and (3) his mental disabilities were one factor in his termination: Moore v. British Columbia (Education), 2012 SCC 61 at para. 33. If he did that, the burden would shift to Horizon to justify the termination as a bona fideoccupational requirement. This defence incorporates Horizon’s duty to accommodate Mr. Bains’ disabilities to a point of undue hardship.
[11] Horizon does not dispute that Mr. Bains’ employment was terminated. It argues that he has no reasonable prospect of proving that any mental disabilities were a factor in the termination. Horizon further argues that it is reasonably certain to prove that Mr. Bains failed to bring forward relevant facts which could have triggered its duties to inquire and/or accommodate his disabilities. Though it has identified this last issue as a part of Mr. Bains’ case, it is my view that this is properly part of the accommodation analysis: Klewchuk v. City of Burnaby (No. 6), 2022 BCHRT 29 at para. 373.
[12] I am persuaded that Mr. Bains has no reasonable prospect of proving a connection between his mental disabilities and his termination. It is not necessary to consider whether Horizon is reasonably certain to justify the termination. In the following sections, I begin by briefly describing the circumstances of the termination. I then consider each of Mr. Bains’ arguments for why the termination was discriminatory.
A. The termination
[13] The basic facts about the events giving rise to Mr. Bains’ termination are not in dispute. Where there is a dispute, I do not make any findings of fact.
[14] The Lodge is a housing lodge for workers in a remote community in BC. Horizon’s policies prohibit staff from attending work under the influence of alcohol or drugs.
[15] On February 15, 2020, Mr. Bains was working at the Lodge as the on-call manager. In that capacity, he was responsible for overseeing the operations of the Lodge. Under Horizon’s policies, he was required to remain fit for work while he was on call and to notify another supervisor before leaving the premises. Among other things, the manager would be expected to lead any response to an emergency at the Lodge.
[16] That night, the Field Catering Supervisor invited Mr. Bains to go to a local pub. Mr. Bains says that, before he left, he spoke to the Executive Chef, and asked her to assume his on-call responsibilities. He says that this was normal procedure, and the Executive Chef was trained in the same emergency procedures as he was. Horizon disputes this and says that the Executive Chef was not qualified to assume Mr. Bains’ management duties.
[17] Mr. Bains and the Field Catering Supervisor went to the pub, where they drank to the point of intoxication and consumed an illegal substance. When Mr. Bains arrived for his shift the next morning, he was still impaired.
[18] Early on February 16, the Senior Operations Manager confronted Mr. Bains with a report he had been drinking the night before. Mr. Bains says he immediately acknowledged this and apologized. He says that he broke down sobbing and disclosed that he had bad anxiety and had been going through a difficult time. Mr. Bains was sent for drug and alcohol testing, and then home. He says he was “crying and apologetic” throughout this.
[19] The result of the testing showed that Mr. Bains had 0.051 breath alcohol content. He was immediately suspended from work. Further testing confirmed that he had consumed an illegal substance.
[20] In the days following his suspension, Mr. Bains says that he was in contact with several Horizon employees. He has produced text messages with a Human Resources Partner [HR Partner], where he disclosed he had been struggling with his mental health and was bedridden with anxiety and depression. He also spoke to a Guest Service Agent, and the Executive Chef, disclosing that his mental health was in a “very dark place”. On February 29, he told his Supervisor he had “just been focused on my mental health”. He told the Director, Operational Support, that he was not ok.
[21] On March 11, 2020, in accordance with its policies, Horizon sent Mr. Bains for a Substance Assessment Evaluation. The assessor concluded that Mr. Bains appeared to meet criteria of a “Deferred Diagnoses”, which applies “where there are no signs of either an Unspecified Alcohol related disorder or Alcohol Use disorder”. For his part, Mr. Bains says he was not forthright with the assessor about his drinking habits, because he had reason to be distrustful of Horizon and did not have a trusting relationship with the assessor. In his affidavit, he says that he has “struggled with alcohol dependency”.
[22] On May 19, 2020, Mr. Bains returned to work, where his employment was terminated for cause, effective immediately.
[23] Mr. Bains makes two arguments about how his mental disabilities were a factor in his termination:
a. Direct discrimination: he was targeted for termination because of his mental disabilities.
b. Adverse impact discrimination: his conduct leading to the termination was related to his mental disabilities, and Horizon failed to inquire about or accommodate those disabilities.
[24] I consider each of these in turn.
B. Direct discrimination: disabilities as a reason for termination
[25] There is no direct evidence that Horizon targeted Mr. Bains for termination because of his mental disabilities. Rather, this allegation can only be proven by inference. An inference of discrimination may arise “where the evidence offered in support of it renders such an inference more probable than the other possible inferences or hypotheses”: Vestad v. Seashell Ventures Inc, 2001 BCHRT 38 at para. 44. The question is whether an inference of discrimination is more likely than Horizon’s explanation for its decision. It is not necessary that Horizon’s decision be consistent only with the allegation of discrimination and not any other rational explanation. Like any case of discrimination, Mr. Bains’ disabilities need only be a factor his termination: Québec (Commission des droits de la personne et des droits de la jeunesse) v. Bombardier Inc. (Bombardier Aerospace Training Center), 2015 SCC 39 at para. 52.
[26] Mr. Bains seeks to establish an inference of discrimination by proving that:
a. Horizon knew about his mental health issues following an incident in 2018;
b. In February 2020, Horizon knew that he was overworked and overwhelmed; and
c. Horizon treated him more harshly than other employees who engaged in the same or similar behaviour.
[27] There is evidence to support each of these assertions. However, considering all of the evidence before me, I am satisfied there is no reasonable prospect that the Tribunal would find an inference of discrimination more likely than Horizon’s non-discriminatory explanation. I begin by setting out the context which Mr. Bains says supports an inference of discrimination.
[28] In October 2018 – about 15 months before his termination – Mr. Bains had a very significant incident involving his mental health at work, which culminated in a two-month disability leave. According to a former HR Partner for Horizon, the event giving rise to Mr. Bains’ leave was discussed within the human resources team and known within management circles. Mr. Bains says that the Senior Manager of Operations (who was later involved in his termination) approved a suspension in connection with this event. Horizon disputes this. It says the Senior Manager of Operations was not Mr. Bains’ supervisor at the time. The Senior Manager of Operations says he was not aware of the suspension. In my view, this dispute is not foundational to an issue the Tribunal must decide: Francescutti v. Vancouver (City) , 2017 BCCA 242 at para 67. For the purpose of the application, I accept that Mr. Bains may be able to prove that the Senior Manager of Operations played a role in his suspension in 2018.
[29] After this incident, in September 2019, Mr. Bains was promoted to the position of Accommodations Manager for the Lodge. He started the position on October 21, 2019. Before he was offered the promotion, the Vice President of Operations reached out to him to express “in every discussion I had with people there was repeated discussion about how losing you would be a negative blow to the company”. Though neither party has made submissions about it, I note that Mr. Bains does not explain how the timing of this promotion reconciles with his argument that he was targeted for termination because of his disability-related needs that arose in October 2018.
[30] From the time he began his job as Lodge Manager, Mr. Bains says that the demands on him were excessive. He says the Lodge was chronically understaffed, and he worked an average of 77 hours per week. He says that he regularly complained about excessive work and overtime to senior Horizon staff. Though Horizon disputes that Mr. Bains raised his concerns through the proper channels, Mr. Bains has pointed to evidence of his hours and discussions with various Horizon staff, including his supervisor and human resources staff. There is evidence that the demands of work were taking a toll on his mental health and this was known to some Horizon staff.
[31] This brings me to Mr. Bains’ conduct on February 15 and 16, 2020. Mr. Bains does not seriously dispute that his conduct was not appropriate. Rather, he argues that Horizon treated him more harshly than other employees who had engaged in the same conduct, supporting an inference that his mental health issues were a consideration.
[32] There is no dispute that Horizon terminated Mr. Bains for conduct that, in other circumstances, has not led to termination or discipline. For Mr. Bains to prove that this differential treatment supports an inference of discrimination, he would have to prove that other employees were similarly situated to him, engaged in similar conduct, and received lesser discipline. Mr. Bains points to three examples:
a. The Field Catering Supervisor, who engaged in the exact same behaviour alongside him and did not receive any discipline.
b. A kitchen employee who attended his shift at least two times visibly impaired or hungover. The Executive Chef says she recommended termination but instead the employee only received a five-day suspension.
c. The Senior Operations Manager and other high-level staff drinking alcohol, though it is not clear whether this was on work time or after work.
[33] In my view, Mr. Bains has no reasonable prospect of proving that these circumstances were analogous to his own. In reaching this conclusion, I also conclude that Horizon is reasonably certain to prove its non-discriminatory explanation for the termination.
[34] Horizon says that it treated Mr. Bains differently because he was a manager and his position was considered safety sensitive. Under its applicable workplace policies, termination was the appropriate response for his conduct. Most of Horizon’s evidence supporting this non-discriminatory explanation for the termination is undisputed.
[35] First, Horizon says that it considers the Lodge Manager to be a safety sensitive position, to which a higher standard of responsibility applies. Mr. Bains strongly disputes that the Lodge Manager position is safety sensitive. However, his allegation of direct discrimination does not turn on whether the position is actually safety sensitive. This is not an instance, for example, where the Tribunal must decide whether safety considerations justify the termination. Rather, the safety considerations are raised as Horizon’s non-discriminatory explanation for the termination. In this context, it is not important whether the Tribunal agrees that the position is safety sensitive. The issue is whether Horizon is reasonably certain to prove that its decision to terminate Mr. Bains’ employment was based on its own assessment that the position was safety sensitive and not – as Mr. Bains argues – based on his disabilities.
[36] The evidence is undisputed that Horizon classified the Lodge Manager position as safety sensitive. Mr. Bains’ employment agreement specifically stated:
Safety Sensitive Position
The position of Accommodations Manager is considered to be safety-sensitive; therefore, your continuing employment is contingent on you maintaining an alcohol free and drug-free workplace…
This is consistent with Horizon’s “Substance Abuse Program” policy, which defines a safety sensitive position as:
Positions in which Employees have a key or direct role in an operation where if actions or decisions are not carried out properly could result in:
i. A serious incident affecting the health or safety of Employees, contractors, customers, the public, the environment, or
ii. An inappropriate response or failure to respond to an emergency or operational situation.
The Lodge Manager is in charge of emergency response at the Lodge and, as such, it is undisputed that it falls within this definition.
[37] Second, there is no dispute that Mr. Bains was in a different position than the Operational Field Support Chef and the kitchen employee. Horizon explains that the role of the Operational Field Support Chef is to travel between locations implementing food menus. Though the position was a senior one, he did not have managerial responsibilities at the Lodge and, from Horizon’s perspective, his conduct did not implicate the health or safety of Lodge staff and guests. Mr. Bains points out that kitchens can be dangerous work environments. That may be true, but there is no evidence before me to support or suggest that the kitchen employee’s position was considered by Horizon to be safety sensitive within the meaning of its policies. Further, unlike Mr. Bains, there is no evidence that the kitchen employee was in a managerial role.
[38] Third, I do not consider Mr. Bains’ evidence about other high-level staff drinking alcohol to be helpful, because it is not clear whether that conduct was occurring while the staff were on call or at work. Drinking alcohol after work hours is not analogous to the situation here.
[39] Finally, Horizon’s Substance Abuse Program policy contemplates that employees in safety sensitive positions with a blood alcohol concentration above 0.04 may be subject to discipline up to and including termination for cause. Mr. Bains’ blood alcohol was above this limit. There is no dispute that his termination was contemplated in the policy.
[40] In sum, Horizon’s workplace policies classified Mr. Bains’ position as safety sensitive. Those policies prohibited him from being under the effects of alcohol or drugs while he was on call or at work. Mr. Bains violated those policies. The policies contemplated that he may be terminated for that conduct, which he was.
[41] Accepting that Horizon knew Mr. Bains had mental health issues, the evidence supporting a connection to his disabilities remains, in my respectful view, in the realm of conjecture. There is no explanation for why Horizon would want to terminate Mr. Bains because of his disabilities in circumstances where it had only recently promoted him into the position. The evidence – taken as a whole – does not support an inference of discrimination. In my respectful view, Mr. Bains has no reasonable prospect of proving that Horizon targeted him for termination because of his disabilities.
C. Adverse impact: disabilities a factor in the conduct
[42] Next, Mr. Bains argues that Horizon knew or ought to have known that his conduct on February 15 and 16 was disability-related, so as to trigger an inquiry and accommodation process rather than termination.
[43] The problem with this argument is that Mr. Bains has not pointed to any evidence to support that his conduct was disability-related. Accepting he may be able to prove that he had mental health issues at the time, including problematic alcohol consumption, he has not explained how those issues are connected to his decision to go to the pub while he was on call and report for work impaired.
[44] The Tribunal does not assume that a person with mental health issues – including anxiety, depression, or substance use issues – will violate workplace rules because of those conditions. In fact, we assume the opposite: that “people with disabilities are able to perform their job” and conduct themselves professionally, even during difficult times: Martin v. Chevrolet Oldsmobile, 2001 BCHRT 37 at para. 28; see also Harris v. Rize Alliance Properties and another, 2019 BCHRT 223 at para. 40. A complainant must prove, with evidence, that their conduct arose from or related to their mental disability: see eg. Stonehouse v. Elk Valley Coal (No. 2),2007 BCHRT 305 at para. 21. For example, in Francescutti, the complainant was fired after he stole a jacket from his employer and lied about it. He argued that his behaviour was connected to his mental illnesses, including “depression and anxiety, mood swings and memory loss”: para. 13. The Tribunal found his complaint had no reasonable prospect of success because there was no evidence to link his disabilities to his lying. The Court of Appeal upheld its decision to dismiss the complaint on a preliminary basis.
[45] Here, Mr. Bains has not produced any evidence to connect his conduct on February 15 and 16 to a disability. His evidence is that he was invited to a pub to watch a band, and he went. He drank and consumed drugs. He says that he had been given the impression that “drinking off site was permissible”, and believed he was following “common practice” by transferring his on-call responsibilities to the Executive Chef. He says he was confused about the company’s response. His evidence could support that he immediately regretted making those decisions, and was surprised by the company’s response. However, it does not explain or support that those decisions arose from his disabilities.
[46] In this situation, even if Horizon had a duty to inquire about Mr. Bains’ disabilities, there is no evidence that such an inquiry would have led to a finding that his conduct was connected to his disabilities. In fact, when it did send Mr. Bains for a Substance Assessment Evaluation, the outcome was that Mr. Bains did not meet the criteria for a substance use disorder. Mr. Bains still has not pointed to any evidence that says otherwise.
[47] In sum, based on the evidence before me, Mr. Bains has no reasonable prosect of proving that his conduct on February 15 and 16, 2020, was related to his disabilities so as to establish a connection between his disabilities and his termination. In this situation, Horizon’s accommodation duties are not triggered, and this part of Mr. Bains’ complaint has no reasonable prospect of success.
III CONCLUSION
[48] I am persuaded that Mr. Bains’ human rights complaint has no reasonable prospect of success. It is dismissed under s. 27(1)(c) of the Code.
Devyn Cousineau
Tribunal Member