CS v. IATSE Local 891, 2024 BCHRT 261
Date Issued: September 11, 2024
File: CS-001380
Indexed as: CS v. IATSE Local 891, 2024 BCHRT 261
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:
CS
COMPLAINANT
AND:
IATSE Local 891
RESPONDENT
REASONS FOR DECISION
Tribunal Member: Shannon Beckett
On their own behalf: CS
Counsel for the Respondent: Allison Tremblay
Dates of Hearing: July 24-27 and August 1, 2023
Written Closing Submissions: September 12, 2023
Location of Hearing: Videoconference
I INTRODUCTION
[1] IATSE Local 891 [the Union] is a labour union that represents professional artists and technicians in the film industry in British Columbia and the Yukon. CS is a person who has experience working in various capacities as a supporting technician in the film industry.
[2] This decision is about whether the Union discriminated against CS based on his mental or physical disabilities when it removed him from a film production known as the Kaslan Project, in September 2018.
[3] CS says the Union’s Senior Steward at the time refused to approve a work permit for him to work on the Kaslan Project which led to his removal from the production. He says that following his removal, the Senior Steward told a colleague that if any work permits for him crossed her desk, she would reject them. CS alleges that the reason the Senior Steward removed him from the production and made these comments, was because she perceived him to be mentally unstable due to traumatic events that happened in his past.
[4] The Union denies discriminating. It says CS was never a Union member or permittee, the Kaslan Project never sought a work permit for him, and the Union never refused to approve one. The Union says CS had a history of working “illegally” on various film productions, and that he falsely stated he was a Union member in order to get hired onto the Kaslan Project. The Union says that because CS was working “illegally” on the Kaslan Project, the Senior Steward contacted the production to ask that he be removed so that a Union member or a permittee could be properly dispatched in accordance with the Master Agreement.
[5] I heard this complaint over five days, and had the benefit of testimony from five witnesses. In addition to CS, I heard evidence from: Derek Seed, the Set Decorating Office Coordinator on the Kaslan Project; Rachel Robinson, the Head of Department for Set Decorating on the Kaslan Project ; Amanda Bronswyk, the Union’s current Senior Steward, and Union Treasurer at the time; and Kelly Moon, the Union’s Senior Steward at the time.
[6] The key issues I must decide in this complaint are:
1. Whether CS had mental and/or physical disabilities at the relevant time,
2. Whether Ms. Moon refused to approve a work permit for CS to work on the Kaslan Project and/or indicated she would reject any work permits for CS that came across her desk, and
3. Whether Ms. Moon’s conduct in seeking CS’s removal from the Kaslan project was influenced by CS’s mental disability, or Ms. Moon’s perception of him as having a mental disability.
[7] For the following reasons, I dismiss the complaint in its entirety. While CS has proved he had a mental disability at the relevant time, he has not proved he had a physical disability, or that any physical disability was connected to the decision to remove him from the Kaslan Project. Further, he has not proved that Ms. Moon rejected a work permit for him to work on the Kaslan Project, or that she indicated she would reject any work permits for him that came across her desk. Finally, CS has not proved that Ms. Moon’s conduct in seeking his removal from the Kaslan Project was influenced by his actual mental disability, or any perception that he was mentally disabled.
[8] I acknowledge the hearing of this complaint was emotionally difficult for CS, as well as other people who participated. The unfortunate reality of hearings at the Tribunal is that they often involve discussing highly personal matters, and re-visiting difficult and sometimes traumatic events. On behalf of the Tribunal, I extend my sincere appreciation to all those who participated. Regardless of the outcome, I hope this decision provides closure for CS and others involved in the complaint.
II PRELIMINARY ISSUE – APPLICATION TO LIMIT PUBLICATION
[9] On the first day of the hearing, CS applied to limit publication of his identifying information. He submits that his name and identifying information ought to be anonymized because of the highly sensitive nature of some of the events that gave rise to the complaint, and because of the highly personal and sensitive nature of the medical information he relies on in his complaint. He also says he feels that his personal safety would be at risk if his name were published for reasons related to an historic assault.
[10] The Union took no position on the application.
[11] At the outset of the hearing, I granted an interim publication ban and limitation on public access to the complaint file. This interim order was set to expire on the issuance of my final decision. After having reviewed all the evidence and considered CS’s submissions, I have determined that the most appropriate way to balance CS’s privacy interests with the public interest in full and open access to Tribunal proceedings, is to issue an anonymization order. What that means is that CS’s name will be anonymized in this decision, and the Tribunal will redact CS’s name and personal identifying information from any part of the hearing record that may be provided to the public in accordance with the Tribunal’s Rules of Practice and Procedure, Freedom of Information Request Policy, and/or Public Access and Media Policy.
[12] The Tribunal’s proceedings are presumptively public: Mother A. v. School Dist. C. , 2015 BCHRT 64. This presumption is based on the “open court principle”, which essentially holds that full and open access to Tribunal proceedings is required to ensure the administration of justice at the Tribunal is transparent, accountable, and accessible. As the Tribunal observed in A v. University and others , 2014 BCHRT 235 (at para. 5), “there is a strong public interest in the Tribunal maintaining open and public processes in order to promote awareness of the Code, education about its application, and access to its processes”.
[13] The presumptively public nature of Tribunal proceedings typically includes publication of party names. In some cases, it may also include public access to specific documents under the Tribunal’s Rules of Practice and Procedure, Freedom of Information Request Policy , and/or Public Access and Media Policy. However, the Tribunal has recognized the presumption can be overcome, namely, in cases where the privacy interests of one or more parties outweighs the public interest in access to the Tribunal’s proceedings.
[14] The BC Court of Appeal has observed that an order replacing party names with initials in published decisions “minimally impairs the openness of judicial proceedings because such an order relates only to a ‘sliver’ of information”: C.S. v British Columbia (Workers’ Compensation Appeal Tribunal) , 2019 BCCA 406, at para. 37. I agree with CS that some of the events discussed in this complaint are highly sensitive and personal, and that his privacy interests outweigh the minimal public interest in knowing his name. The public interest in access to the Tribunal’s proceedings and understanding of the Tribunal’s decision-making process will not be substantially impeded by anonymizing CS in the final decision, and by ensuring that any documents which may be accessed by the public in the future are redacted prior to release.
[15] As such, I order that the Tribunal will anonymize CS in this decision, and the style of proceeding will be CS v. IATSE Local 891 . I further order that prior to releasing any document relating to this complaint to any member of the public, the Tribunal will redact CS’s name and any personal identifying information.
III BACKGROUND
A. Procedural Background and Scope of Complaint
[16] A review of the procedural history of the complaint is necessary to understand the narrow scope of the complaint.
[17] CS filed his original complaint with the Tribunal on January 30, 2019. In it, he alleged that both the Union and Kelly Moon discriminated against him contrary to s. 14 of the Human Rights Code [Code] based on mental and physical disability, as well as sex and sexual orientation. The original complaint involved allegations from August and September 2017.
[18] In a June 13, 2019, screening decision, the Tribunal rejected the complaint on the basis that the allegations were to vague and speculative to ground a human rights complaint, and they appeared to be filed after the one-year time-limit for filing complaints. However, the Tribunal allowed CS an opportunity to provide further information, which he did in a seven-page amendment which he filed on July 22, 2019.
[19] In the amendment, CS expanded on the allegations in his original complaint, and added a new allegation of discrimination pertaining to events which occurred in September 2018. He framed his September 2018 allegations as follows:
September 11 th 2018 after a long journey of mental and physical healing I was offered a buying position on a Feature Union film “the Kaslan Project” and after one week of employment Kelly Moon (Senior Steward) called Derek Seed (Set Dec Coordinator) and had me removed. Derek Seed … only knowing me for one week asked Kelly Moon… if I she could explain her reason as he felt I was an asset to their team and the production was in need of support. Kelly Moon… claimed I was not a Union Member but rather a Liar and only on a Union Reserve List. Kelly Moon… continued to caution Derek Seed… that I made-up stories in my past and that I had behavioral issues, claiming I mentally crash and burn quickly and consistently. Kelly Moon… states my emotional problems are my undoing claiming there was an incident in the recent past that cost a significant amount of time and resources and legal representation. Kelly Moon… stated to Derek Seed… when a permit request lands on her desk with my name on it, it’s rejected.
[20] In a September 16, 2019, screening decision, the Tribunal confirmed its decision to reject the part of the complaint relating to the events from August and September 2017. However, the Tribunal allowed the part of the complaint relating to the events of September 2018 to go forward against both the Union and Kelly Moon, under both s. 13 (employment) and s. 14 (unions and associations) of the Code. The Tribunal described the scope of the complaint which was permitted to proceed as follows:
In your amendment, you include allegations from September 2018 that were not in your original complaint. You say that Kelly Moon contacted a production you were working on and had you removed. You say she told them you were mentally unstable and that you had cost productions money and resources in the past. She also said you were not a union member and were only on a reserve list. She said she rejects any work request for you that crosses her desk.
This is a timely allegation setting out possible discrimination against you in employment and in unions & associations based on physical and mental disability. It can proceed.
[21] After this part of the complaint was accepted, the Respondent filed an application to dismiss the complaint. In its decision on the dismissal application, the Tribunal further narrowed the scope of the complaint by dismissing the complaint against Ms. Moon as an individual respondent, and by dismissing the complaint as it related to employment under s. 13 of the Code.
[22] Following the decision on the dismissal application, CS applied to amend his complaint to allege the Union had retaliated against him under s. 43 of the Code. In a July 26, 2022, decision, the Tribunal denied his application to amend the complaint, finding that CS had not alleged any facts that could support a finding that the conduct set out in his proposed amendment was connected to his filing of the human rights complaint.
[23] As a result of the Tribunal’s above-referenced decisions, the scope of the complaint was limited to CS’s allegations about being removed from the Kaslan Project in September 2018 based on disability, including his allegations about Ms. Moon’s comments about him to Mr. Seed.
[24] However, despite the narrow scope of the complaint, much of the evidence CS provided at the hearing, and many of the questions he asked witnesses, involved events that pre-dated the events from September 2018. At the outset of the hearing, I reminded CS about the narrow scope of the complaint, and CS explained his position that the Tribunal needed to understand the earlier events to understand the context of the events in September 2018. Ultimately, I allowed CS to provide evidence and ask witnesses about these earlier events so that he could fully explore his complaint and bring the evidence he believed was necessary to resolve the complaint. However, I reminded CS throughout the hearing that the scope of the complaint was limited to the events of September 2018.
[25] In his closing submissions to the Tribunal, CS again focusses to a large extent on the events that took place in 2017, and to a lesser extent, events that took place in 2021, after the time-period that is pertinent to this complaint.
[26] For clarity, in this decision I have referenced some elements of the history that CS says is relevant to this complaint of discrimination, but I have not referenced all, or even most, of the evidence or allegations CS made in relation to this time period, nor have I attempted to resolve the numerous factual conflicts between the parties which are not relevant to the limited scope of this complaint.
B. Factual Background
1. How People Obtain Work on Union Productions
[27] Work on Union productions is governed by a Master Agreement negotiated between three different unions (including IATSE Local 891) and a number of production companies. Appendix A of the Master Agreement pertains specifically to the Union (IATSE Local 891). Article A1.09 of Appendix A sets out how the Union provides employees to work on Union productions as follows:
A1.09 Union to Furnish Employees:The Union agrees to furnish Local 891 Employees covered by this Agreement to perform work in the job classifications of the departments as listed in Article A1.04 of this Master Agreement, and that said Employees will be competent and will perform such work as is required by the Employer under the provisions of this Master Agreement.
Local 891 Employees shall be dispatched as follows:
Department Roster
1. Local 891 shall maintain a roster of its available and qualified members within each department recognized in the Master Agreement (the “Department Roster”).
2. In order to remain on the Department Roster, a member must:
(a) be a member of Local 891 in good standing as defined in Article 1.10 and;
(b) have worked under the Master Agreement no less than thirty (30) days in the preceding three (3) years; or
(c) have been unable to meet the requirements of subsection (b) as a result of absences due to disability, parental, union or political leave.
Auxiliary Roster
3. Local 891 shall maintain a roster of available and qualified workers who are not members of Local 891 (the “Auxiliary Roster”).
4. In order to move from the Auxiliary to the Department Roster, a worker must:
(a) have worked ninety (90) days under the Master Agreement; and
(b) apply for and be accepted into Membership with Local 891 which membership shall not be unreasonably withheld.
Order of Dispatch
5. Local 891 shall dispatch or the Employer may directly employ persons for employment in the following order:
First: Persons on the Department Roster who have been selected by an Employer and who accept dispatch.
Second: Persons who are on the Department Roster and who are available and qualified for dispatch according to Local 891’s dispatch procedure.
Third: Persons who are on the Auxiliary Roster who have been selected by an Employer and who accept the dispatch.
Fourth: Persons who are on the Auxiliary Roster and who are available and qualified for dispatch according to Local 891’s dispatch procedure.
6. When Local 891 is unable to supply available and qualified persons in accordance with the preceding section, the Employer may employ any person under the terms of the Master Agreement.
[28] Ms. Bronswyk provided general background information about the role of the Union with respect to film productions, as well as how a person can get work on a Union production. CS did not dispute any of the general information Ms. Bronswyk provided about the film industry or role of the Union, and I have accepted her evidence on these points as clear, credible, and consistent with the documentary evidence, including the above terms of the Master Agreement, as well as the Union’s Hiring Policies and Procedures.
[29] Ms. Bronswyk testified that she is currently the Union’s Senior Steward, and a key role of the Senior Steward is to enforce the Master Agreement, including overseeing dispatch, approving permit requests, and generally dealing with labour relations issues. She explained that the Union represents artists and technicians in the film industry. She said that the “employers” in the film industry are studio companies such as Disney, Netflix, Fox, and ABC, who put on film or television series projects known as “productions”. She said that in order to operate in British Columbia and utilize the Union’s members, each production must adhere to the Master Agreement, which sets out the rules under which the signatory unions and signatory studio companies agree to operate. Ms. Bronswyk went on to explain that if a studio is a signatory to the Master Agreement, then any production it operates in British Columbia is bound by the terms of the Master Agreement.
[30] Outside of union productions, Ms. Bronswyk said there are many non-union productions, where studios are not signatories to the Master Agreement and where the Union’s rules about dispatch and hiring are not applicable.
[31] In order to become a member of the Union, Ms. Bronswyk said that a person must meet all of the specific qualifications for a particular department (e.g. Costume department, Set Decorating department, Accounting department), and then they must physically work 90 “legal” days in that department, apply for membership, be accepted, and attend an initiation. She explained that “legal” days are days where a non-member has been properly dispatched by the Union onto a production or has a valid work permit. She explained that “illegal” days are days where a non-member works on a Union production without having been properly dispatched by the Union or without having a valid work permit. For the purposes of this decision, I have used the terms “legal” and “illegal” as having the same meaning as described by Ms. Bronswyk.
[32] With respect to how people get work on Union shows, Ms. Bronswyk testified that there are several ways. First, a producer or manager of a production could name-request a Union member; for example, someone they have worked with in the past and want to work with again. Second, a production could request a roster of Union members from the Union, and could name-request members directly from that list. Third, if a production does not want to directly call members, it can place calls for vacancies with the Union’s dispatch, and the Union will contact and dispatch qualified individuals to the production. Fourth, a production can ask the Union for a work permit for an individual who is not a Union member.
[33] Ms. Bronswyk explained that under the terms the Master Agreement, the only time a production can seek a work permit for a non-member would be if it could not fill the vacancy with either a Union member or “permittee”, either due to lack of availability, or lack of required skills. In such a case, the production would have to submit a work permit request demonstrating how the production did its due diligence by contacting members on the Union’s rosters. The Union would then cross-reference the permit application and “spot check” to ensure that the production’s comments in the application about availability of Union members or permittees was accurate.
[34] With respect to situations where the Union dispatches people to work, Ms. Bronswyk explained that the Union contacts Union members on the member roster in order of seniority, then if the Union cannot fill the vacant position with a Union member, it moves to a separate roster of “permittees”. Permittees are non-members of the Union who have met the qualifications to work in a department, but do not have the required number of days working in the department to qualify for full Union membership. It appears from the above terms of the Master Agreement that permittees are those members on the “Auxiliary Roster”.
[35] For clarity, permittees are different than people who have been dispatched to a production on a work permit. Ms. Bronswyk explained that in order to become a permittee, a person must fill out a specific application for a particular department, which details their work experience and qualifications for that particular department. The Union then reviews the application to ensure a person meets all the qualifications, which can include holding various certificates, possessing specific skills, and passing certain tests at a certain level. If the application is complete and the person has the required skills and qualifications, the Union will add them to the permittee list. Ms. Bronswyk explained that applications for permittee status come from non-members and involve an internal Union process, separate from any production, whereas work permits come from a particular production and are approved (or not) by the Union.
[36] In addition to the list of Union members and the list of permittees, Ms. Bronswyk described a third list, which the Union refers to as the “Senior Stewards Reserve List” [SSRL]. This is a list of people that do not meet the department qualifications to be a member or a permittee, but have some skills that are relevant to the film industry and a particular department. She testified that the Union uses the SSRL when it is extremely busy in the industry, and the Union is unable to fill vacancies for productions. She said that if the Union cannot fill a vacancy from either the membership list or the list of permittees, then, if the production agrees, the Union can dispatch an unqualified worker from the SSRL.
[37] Ms. Bronswyk also testified about the documents the Union receives from a production when a person starts working on a Union production. She explained that among other documents, the Union would receive a document called a “deal memo”, as well as an employee “start slip”, both of which would contain information about the person and their work on the specific production. Ms. Bronswyk testified there can be a delay between when a person starts work on a production, and when the Union receives and is able to review these documents. She said reviewing these documents is one way the Union checks to ensure people are working legally on Union productions.
2. CS’s Status with the Union
[38] The parties agree that as of the time of the hearing, CS had never been a Union member or a permittee with the Union. CS does argue that his applications for permittee status over the years should have been approved, and that he should have been a Union member because he had the required number of working days. However, he acknowledged in his evidence that despite these beliefs, he had never been granted either permittee status or membership with the Union.
[39] The parties also agree that at one or more points in time, CS was added to the SSRL by Ms. Moon.
3. CS’s Work on Union Productions Before the Kaslan Project
[40] CS gave evidence, and the Union does not dispute, that in August of 2017, he experienced an aggravated, criminal, sexual assault. CS said following the assault, he was prescribed medication to prevent transmission of sexually transmitted diseases. He says he went back to work on a production called “Siren” while on this medication, and requested a medical accommodation to assist him to deal with the side effects of the medication. He testified that during this time he had several terrible experiences with the production company which involved bullying and harassment, and eventually had to go off work to recover.
[41] CS provided substantial evidence about the context in which he negotiated a financial settlement relating to his experience on Siren. He testified that he negotiated the settlement directly with the production company. He further testified that as part of this settlement, he was paid out for a number of days he would have worked on the production had he not gone off work to recover. CS’s evidence about this situation was that he was under duress when he agreed to the settlement, the Union refused to help him, and this was the start of the Union’s discrimination against him.
[42] The Union did not dispute most of CS’s evidence in relation to these earlier events. However, in her testimony, Ms. Moon denied CS’s allegation that the Union refused to assist CS at the time. In contrast, she provided significant evidence about the Union’s role and actions it took on CS’s behalf at the time, including trying to get information from CS about the settlement, and trying to assist him.
[43] I have determined that I do not need to explore or resolve the conflicts in the parties’ evidence in relation to these events. For the purposes of the narrow scope of this complaint, the relevant information is undisputed; namely, that CS experienced a sexual assault, he experienced further negative events with his employer at the time, he negotiated a settlement and was paid out for a number of days he did not physically work, and Ms. Moon and the Union were aware of the sexual assault, the following events, and that CS negotiated a settlement agreement directly.
[44] In addition to working on Siren, CS worked on a number of other productions before working on the Kaslan Project. He gave evidence about some of these productions, and the Union cross-examined him extensively on them. With respect to some productions, CS and the Union disagreed about whether CS was working as a legal or illegal hire, and whether CS knew if he was working illegally. I do not need to explore this evidence or decide whether CS was working legally or illegally on these other productions, as the claim of discrimination in this complaint is not in relation to any of them.
4. CS’s Applications for Permittee Status
[45] CS gave evidence that he applied for permittee status with the Union on several occasions leading up to working on the Kaslan Project. An application to the Set Decorating Department which CS made in June of 2016, indicates CS did not pass the Set Decorating exam, but was placed on the SSRL as a “Set Dresser Asst” by Ms. Moon that same month. Similarly, an application CS made to the Costume Department in February of 2017 indicates that CS was not approved as a permittee, but was added the SSRL as a “prep costumer and dresser” as per Ms. Moon’s direction.
[46] In addition to these earlier applications, CS also submitted a September 5, 2018, application for permittee status in the Set Decorating Department, which appears to have been made around the time when CS was working on the Kaslan Project. CS acknowledged in his evidence that the supporting material attached to the application includes several significant errors, including indications that CS was a Union member, and that he attended BCIT for business management when he had not. It also includes reference to at least one other educational program which CS had started, but had not completed. A copy of CS’s September 6, 2018, application for permittee status in the Costume Department, again, made close in time to when he was working on the Kaslan Project, contains these same errors.
[47] Again, for clarity, applications for permittee status are distinct from requests for work permits. A successful application for permittee status allows a person to be added to a list of people who the Union will dispatch before other non-members. A successful application for permittee status does not grant a non-member work on a particular production. All of which is to say that whereas CS’s two September permittee applications were made around the same time as CS was working on the Kaslan Project, they were not part of any request for a work permit on the Kaslan Project.
5. CS’s Work on the Kaslan Project
[48] CS testified that in August 2018, he was put into contact with Ms. Robinson, the Head of Department for Set Decorating on the Kaslan Project, by a mutual acquaintance, GD. He said that GD told him that Ms. Robinson was having a hard time finding people to work on the production, and on that basis, he assumed that Ms. Robinson had exhausted her options with the Union. He said that when he spoke to Ms. Robinson about the production, he told her he would need a work permit. He said Ms. Robinson ultimately hired him onto the production as a “Buyer”, and he started working on the production in late August 2018. He said shortly afterwards, he was removed from the production, and that he believed he was removed from the production because Ms. Robinson requested a work permit for him. He testified that after he was removed, he did not go back to work on the Kaslan Project.
[49] Ms. Robinson provided a very different version of events. She agreed that GD had put her in contact with CS, but that when she called him to talk about work on the production, she expressly asked him if he was a Union member and he told her that he was. She said she had no reason not to believe him, so she hired him onto the production. She testified that later, Ms. Moon contacted her and advised her CS was not a Union member and told her she would have to remove him from the production. Ms. Robinson said she removed CS because of this, and asked about whether he could be permitted onto the show and was told he could not be.
[50] In a deal memo dated August 17, 2018, which CS signed, and which relates to his work on the Kaslan Project, CS indicated his “Union affiliation” was IATSE 891. Further, in CS’s employee start slip in relation to the Kaslan Project, where he could choose between checking one of three different boxes in relation to his Union member status – member, permittee, or non-union – he checked off that he was a member of the Union.
[51] After he was removed from the production, CS testified he spoke to Derek Seed, who, at the time, was the Office Coordinator in the Set Decorating Department on the Kaslan Project. CS said Mr. Seed told him that he had spoken to Ms. Moon about CS, and that among other things, Ms. Moon told Mr. Seed that CS was a liar, makes up stories, has behavioural issues, and if a permit ever landed on her desk with CS’s name on it, she would reject it.
[52] With respect to who replaced CS after he was removed from the Kaslan Project, Ms. Robinson testified that after CS left, some of the Union members who she had hired as “Dressers” did the buying, and that it was typical and permissible for dressers to do the buying on productions. CS agreed with Ms. Robinson on this point. Ms. Robinson further testified that eventually, she replaced CS with another worker, TP, who she believed was a Union permittee. She said that CS was not difficult to replace.
[53] Ms. Moon’s evidence on this point was similar to Ms. Robinson’s, in that she testified that she believed it was either a Member or a permittee who ultimately replaced CS. She said her belief was based on the fact that she never received any work permit requests for anyone in relation to the Kaslan Project.
[54] Mr. Seed also provided evidence about who replaced CS on the Kaslan Project. Mr. Seed testified that he was involved with sending out a mass email to members about the vacancy, and that Ms. Robinson ended up hiring 4-5 buyers to fill the vacancy. He testified that all the people Ms. Robinson hired were Union members.
[55] Although not exactly the same, all three of these witnesses testified that one or more Union members or permittees replaced CS after he left. Other than speculation on CS’s part in his questions to witnesses during the hearing, there was no evidence before me that anyone other than a Union member or permittee filled the vacancy created when CS left. As such, I find that after he left, CS was replaced by one or more Union members or permittees. With respect to TP specifically, it does not matter whether TP was a Union member or a permittee. I find he was one or the other.
6. Events Following the Kaslan Project
[56] Both parties provided evidence about events that took place following the Kaslan Project. It is not necessary for me to review or consider that evidence in detail because it does not relate to the allegations of discrimination in the present case. The only evidence which I find relevant, is that following the Kaslan Project, CS was granted a work permit to work in the Accounting Department on a production called “Debris” in 2021.
IV ANALYSIS AND DECISION
[57] Section 14 of the Code prohibits discrimination by unions and associations as follows:
14 A trade union, employers’ organization or occupational association must not
(a)exclude any person from membership,
(b)expel or suspend any member, or
(c)discriminate against any person or member
because of the Indigenous identity, race, colour, ancestry, place of origin, political belief, religion, marital status, family status, physical or mental disability, sex, sexual orientation, gender identity or expression, or age of that person or member, or because that person or member has been convicted of a criminal or summary conviction offence that is unrelated to the membership or intended membership.
[58] To prove his complaint of discrimination, CS must prove:
1. he has a physical and/or mental disability within the meaning of Code,
2. he experienced an adverse impact in the area of unions and associations, and
3. his physical and/or mental disability was a factor in the adverse impact.
Moore v. British Columbia (Education), 2012 SCC 61 at para. 33
[59] The Union agrees that CS experienced an adverse impact in the area of unions and associations when he was removed from the Kaslan Project, but denies any other adverse impacts CS alleges. In addition, the Union submits CS has not proved he had either a physical or mental disability within the meaning of the Codeat the relevant time, or that any such disability was connected in any way to his removal from the Kaslan Project.
[60] I will first consider the evidence and arguments in relation to CS’s claim of discrimination based on physical disability. Then I will move on to consider the evidence and arguments in relation to his claim of discrimination based on mental disability.
A. Discrimination based on Physical Disability
[61] CS does not clearly allege the Union discriminated against him based on physical disability. Although the Tribunal allowed CS’s complaint to proceed on the grounds of both physical and mental disability, the allegations in the part of his complaint which were allowed to proceed, appear to relate only to the ground of mental disability; namely, that the reason for the Union’s conduct towards him in relation to the Kaslan Project, was because the Union perceived him to be mentally unstable. Despite this context, CS led evidence at the hearing about a physical disability. In particular, he testified that he has epilepsy, which sometimes causes him to forget things, or to make mistakes. Although his evidence on this point was not entirely clear, he appeared to connect this physical disability to the errors he made on the applications for permittee status that he submitted to the Union between 2016 and 2021.
[62] Beyond briefly mentioning that he has epilepsy, CS did not provide any other evidence supporting the diagnosis or explaining the nature and extent of the condition. Further, CS’s evidence about his epilepsy did not arise in connection with any allegation of discrimination, rather it arose in the context of being cross-examined about various mistakes he had made on his applications for permittee status over the years. In this context, I am not persuaded that CS has proved a physical disability for the purposes of the Code.
[63] Even assuming CS was able to prove he had epilepsy at the relevant time, he has not proved that there was any connection between his epilepsy and the Union’s decision to remove him from the Kaslan Project, and/or Ms. Moon’s comments about him to Mr. Seed.
[64] First, based on CS’s evidence and his closing submissions, the only issue the alleged epilepsy diagnosis is relevant to, is whether there may have been a connection between his epilepsy and the various errors he made on his applications for permittee status over the years. However, this complaint is not about whether the Union discriminated against CS in relation to his various applications for permittee status over the years. The scope of the complaint accepted by the Tribunal is limited to allegations about CS’s removal from the Kaslan Project, and comments Ms. Moon allegedly made after CS was removed. Although CS submitted two applications for permittee status in September 2018, around the same time as his work on the Kaslan Project, he does not allege that those applications for permittee status related to his work on the Kaslan Project, or that the Union’s refusal to accept those permittee applications was related to his removal from the Kaslan Project.
[65] Second, even if the complaint could be interpreted to encapsulate the refusal to accept the 2018 applications for permittee status as separate (or related) alleged adverse impacts, CS has not provided any medical or other information explaining how a diagnosis of epilepsy could possibly have led to the numerous errors on his applications; which included major errors such as falsely stating that he was an IATSE 891 member on his resume, and falsely claiming to have undertaken business management education at BCIT when he had not.
[66] Third, CS’s evidence about the connection between his epilepsy and his applications for permittee status, is inconsistent with his evidence about the alleged discrimination based on mental disability. CS’s evidence at the hearing, was that the Union was motivated by malice and its view of him as mentally unstable when it refused to accept his multiple permittee applications, including the 2018 applications. His position was that the Union purposely refused to accept his applications, not that it rejected his applications because they contained mistakes which were related to his epilepsy. In fact, until he was cross-examined on the mistakes, CS maintained that his applications were complete and adequate and should have been accepted by the Union.
[67] Finally, I do not understand CS to argue that Ms. Moon removed him from the Kaslan Project and said she would never grant a permit for him in the future, based on, or in relation to, his epilepsy. CS’s position throughout the course of the hearing and in his closing submissions was that Ms. Moon considered him to be “mentally unhinged”, and that was the basis for the Union’s discrimination. To the extent that CS asks the Tribunal to draw a connection between a diagnosis of epilepsy and a perception that he is “mentally unhinged”, I find CS has not led any evidence which could lead the Tribunal to make such a connection.
[68] For the above reasons, I dismiss CS’s complaint as it relates to physical disability. I next move on to consider the evidence and arguments about discrimination on the basis of mental disability.
B. Discrimination on Basis of Actual or Perceived Mental Disability
1. Mental Disability
[69] With respect to mental disability, CS’s evidence was that he has anxiety, depression, and Posttraumatic Stress Disorder [PTSD]. In support, he submitted a letter from WorkSafe BC, dated June 22, 2022, which states that WorkSafe BC had accepted CS’s claim for PTSD “as a result of workplace bullying and harassment while employed as a buyer for Bad Angels Productions Ltd.” I understand from the evidence that “Bad Angels Productions Ltd.” was the studio company that was running the Siren production. The WorkSafe BC letter further states that the “claim date” is August 24, 2017, and that by January 28, 2022, WorkSafe BC had decided that CS’s PTSD had “stabilized into a permanent condition”.
[70] CS also provided a letter dated May 3, 2019, from his family doctor, which states that he “suffers from Post-Traumatic Stress Disorder (PTSD), depression and anxiety”.
[71] In addition to these documents, CS also testified orally that he has each of these mental conditions. With respect to his PTSD, he testified that he had been diagnosed with the disorder after the aggravated sexual assault he experienced, and after bullying and harassment he experienced at work on the Siren production following the sexual assault. CS said that the diagnosis of PTSD had been made by “multiple psychiatrists and psychologists, a counselor and the Crown, through criminal victim services”.
[72] Also in his testimony, CS referenced an April 30, 2020, letter the Union sent to WorkSafe BC in relation to what the Union described as CS’s “assorted complaints to WorkSafeBC”. In this letter, the Union references an April 14, 2020, “Expedited Psychology Assessment Report”, as well as an April 21, 2020, “Addendum” to the report. I was not provided with either of the named reports, however, CS testified that they were in relation to his PTSD claim.
[73] The Union acknowledges that CS provided documentary evidence demonstrating he currently has PTSD, which the Union concedes is a disability for the purposes of the Code. However, the Union argues that CS did not provide any evidence that he suffered from this disability in September 2018. In addition to referencing the above two documents, the Union points to a letter from WorkSafe BC dated August 29, 2019, which the Union says shows that WorkSafe BC did not have sufficient evidence to support a mental health diagnosis at that time.
[74] I disagree with the Union’s submissions on this point. The August 2019 WorkSafe BC letter does not, as the Union suggests, find that there was insufficient evidence to support a mental health diagnosis at the time. Rather, the letter is clear that WorkSafe BC did not need to decide whether CS had a mental disorder at the time. The letter states, “I do not have confirmation as to whether your condition consultations a mental disorder as required by the Act….[h]owever, it is not necessary for me to determine whether the mental disorder requirement is met” [emphasis added].
[75] Further, the June 22, 2022, WorkSafe letter clearly states that the PTSD resulted from events which occurred prior to September 2018, as the claim was made in August of 2017. The WorkSafe BC claim date correlates with the timing of the sexual assault and the following events on the Siren production. That WorkSafe BC found the PTSD had stabilized into a permanent condition by 2022, does not mean that CS did not have PTSD as of September 2018. On the contrary, the letter states that the PTSD was “as a result” of events that occurred in August 2017. Similarly, that the doctor’s note did not expressly specify a date that CS’s PTSD started, does not mean he did not have PTSD at the relevant time. In fact, prior to setting out CS’s mental health diagnosis, the doctor’s note references a “criminal sexual assault” that CS experienced in August 2017, and states that CS, as of May 2019, had not yet addressed the “personal mental and physical health issues resulting from his assault”.
[76] Considering the above documents, taken together with CS’s oral evidence about the sexual assault and events that followed, which he says exacerbated the trauma from the sexual assault, I am satisfied that CS has proven that at the relevant time, he had PTSD, which is a disability for the purposes of the Code.
[77] With respect to CS’s anxiety and depression, while it may be that CS experiences anxiety and depression, he did not give specific evidence about the nature or extent of either of these mental health issues, nor did he expressly connect them with his diagnosis of PTSD. To the extent that CS claims anxiety and depression as mental disabilities which are separate from his PTSD diagnosis, I find he has not proved either of them as a separate disability for the purposes of the Code .
[78] For the purposes of the Code, “disability” does not capture every medical symptom or condition. To decide whether a condition is a “disability”, the Tribunal will consider the degree of impairment and any functional limitations, and any social construction of disability: Morris v. BC Rail,2003 BCHRT 14 at para. 214. It considers factors like “whether the condition entails a certain measure of severity, permanence and persistence”: Viswanathapuram v. Canadian Alliance of Physiotherapy Regulators, 2017 BCHRT 29 at para. 40.
[79] Anxiety, by itself, does not amount to a disability for the purposes of the Code: Kersten v. VIHA and others, 2023 BCHRT 108, at para. 37. Anxiety is a commonly experienced emotion which could be “a symptom of a condition which may qualify as a disability such as anxiety disorder”, but a bare assertion of anxiety, without a clear explanation and evidentiary basis which demonstrates how the symptom of anxiety is disabling, is “not a sufficient basis upon which to allege that one has a mental disability”: Dow v. Summit Logistics and RWU Local 580 , 2006 BCHRT 158, at para. 18.
[80] CS has not provided any evidence about a specific anxiety disorder that he has been diagnosed with, or about the severity, permanence, and/or persistence of his anxiety. Further, he has not explained whether he had anxiety at the time of the events that gave rise to this complaint. Unlike with respect to the PTSD diagnosis, CS spoke only very briefly about anxiety, simply stating that he experienced it. He did not provide any context regarding the cause or timing of the anxiety. For these reasons, I find CS has not proved his anxiety is a disability for the purposes of the Code.
[81] In a similar vein, with respect to depression, beyond CS’s doctor’s comment that he “suffers from …depression”, and his own statement that he has depression, CS has not provided any evidence about the context for his claim that his depression was a disability for the purposes of the Code. He has not explained whether he had depression at the time of the events that gave rise to this complaint, how severe his depression is or was, and/or whether it is or was transitory or permanent. He has not explained how his depression impacted him. The information CS has provided, without more, falls short of proving on a balance of probabilities that CS had a disability of depression at the relevant time, for the purposes of the Code.
[82] For clarity, my above analysis of CS’s anxiety and depression is with respect to whether CS has proved that either or both of these conditions are, on their own, a disability for the purposes of the Code. I note that CS does not expressly characterize his anxiety and/or depression as symptoms of his PTSD. However, to the extent that CS argues that his anxiety and/or depression are symptoms of his PTSD, then I have already accepted he has proved his PTSD diagnosis is a disability for the purposes of the Code.
[83] I next move on to consider the adverse impacts CS alleges he experienced.
2. Adverse Impact
[84] CS says he experienced adverse impacts when he was removed from the Kaslan Project, when Ms. Moon refused to grant a work permit for him to work on the Kaslan Project, and when Ms. Moon made what he characterizes as “disparaging and slanderous statements relating to my mental health”.
[85] Although the Union concedes CS’s removal from the Kaslan Project amounts to an adverse impact for the purposes of the Code, it denies CS experienced an adverse impact when Ms. Moon refused to issue a work permit for him following his removal from the Kaslan Project. The Union argues no permit was ever requested for CS, and therefore the Union “had nothing to act on” in order to cause an adverse impact. Additionally, the Union denies that Ms. Moon ever said she would refuse to approve any work permit for CS in the future, and that the conversation between Ms. Moon and Mr. Seed could not, on its own, amount to an adverse impact for the purposes of the Code.
Did the Union Refuse to issue a Work Permit for CS on the Kaslan Project?
[86] Upon my review of the evidence, I find Ms. Robinson never requested a work permit for CS, either before or after his removal from the Kaslan Project, and that the Union never refused to issue a work permit for CS. Therefore, I find CS did not experience any adverse impact in relation to this allegation.
[87] CS’s evidence on this point included a text message string between himself and Ms. Robinson between August 31, 2018, and September 10, 2018. On August 31, 2018, CS texted Ms. Robinson and said he was sitting in his car outside and did not want to come back inside because he was “pretty upset atm and having some anxiety about the situation”. Ms. Robinson responded by stating “Hey, don’t be so glum, you’ll probably be back in a week”, and then by telling CS he would need to come in to settle up his petty cash. She then went on to state “I will cycle through the union requirements and get you back as soon as possible. Just so you know, all your stuff is awesome!”.
[88] It appears from these text messages, that August 31 was the date CS was removed from the Kaslan Project.
[89] The next text message is dated September 8, 2018, and set out the following:
CS – sorry to hear Derek was fired. He was sweet with good intention. How are you guys managing I never did hear back from you?
[90] Then on September 10, CS and Ms. Robinson went back and forth as follows:
RR – Derek was none of those things. Things are ramping up, but we are ok. Can you please come in and settle your petty cash?
CS – I guess that answers whether I was going to be coming back to the show in a week but thanks again for all that. All the best with the career.
RR – sorry [CS], I tired to get you back, even asked to permit you, but the union would not let me
CS – why? I heard you had a conversation with Kelly what did she say?
RR – she would not tell me why but was very firm that I could not bring you in
[91] CS argues Ms. Robinson’s texts show that she tried to get him a work permit, but the Union refused to approve one.
[92] When Ms. Robinson was asked at the hearing what attempts she made to get CS back onto the Kaslan Project, she repeatedly stated that the production occurred a long time ago, at a very busy time in her life, and she had difficulty remembering details. She did recall some details, and testified that “I did speak with the IATSE people to find out if there was a way to bring him back and found out there wasn’t, so I left it at that.” When asked about her text messages to CS about having tried to get him back onto the production, Ms. Robinson stated that she asked the Union if she would be able to and was informed she would not.
[93] Ms. Moon’s testimony was generally consistent with Ms. Robinson’s. She testified that she found out that CS was working as an illegal hire on the Kaslan Project when she reviewed the deal memo that came in with his name on it. She said after she received the deal memo she checked to see whether CS had been dispatched to the production, and he had not. She said she knew she had not approved a work permit for him because no permit had been requested. She testified that she called Ms. Robinson who told her CS had told her he was a Union member. She said she believed Ms. Robinson, because she noted on CS’s employee start slip that he had checked off that he was a Union member.
[94] Ms. Moon said she advised Ms. Robinson CS was not a Union member and would have to be released form the production. She said she explained to Ms. Robinson that if she wanted to request a work permit for CS she would have to go through the proper Union procedure. She said she told Ms. Robinson that the proper procedure was to either fill the vacancy through the list of Union members and permittees, or apply for a work permit setting out what exceptional skills the production required, or match the position with a Union member[1].
[95] Ms. Moon testified that she asked Ms. Robinson to confirm the circumstances of how CS came to work on the Kaslan Project in writing, and told her that she would not grieve the temporary illegal hire. In an email dated November 7, 2018, Ms. Robinson appears to have done so as follows:
This email is to confirm that [CS] was hired by me as a set buyer from August 27th to August 31st. When I interviewed [CS] I asked him if he was member and he told me he was, and as I had no reason to question this I hired him. Upon receiving news that he was not a member in good standing, I released him immediately as instructed.
Should anyone have any further questions regarding this situation please feel free to contact me anytime on my cell number listed below.
Thank you,
Rachel Robinson
[96] Ms. Moon testified that after speaking to Ms. Robinson, she never received a work permit request for CS.
[97] I found both Ms. Moon and Ms. Robinson to be credible witnesses who provided reliable testimony on the issue of how CS came to work on the Kaslan Project and what happened afterwards. Both testified in a straightforward way, answering questions directly and openly acknowledging where they did and did not remember specific points. Further, with one exception that I address below, their evidence was generally consistent, insofar as how and why CS was removed from the Kaslan Project, and what happened afterwards. Their evidence was also consistent with the documentary record, including Ms. Robinson’s November 7, 2018, email, and CS’s start slip, in which he indicated he was a Union member.
[98] On the question of whether Ms. Robinson ever requested a work permit for CS, I observe that she did not claim to have submitted a request to the Union for a work permit either in the text message string, or in her testimony. Further, Ms. Moon was adamant that she never received a work permit for CS in relation to the Kaslan Project, and, in fact, she never received a work permit for CS at any time during her tenure as the Union’s Senior Steward.
[99] At most, Ms. Robinson’s evidence was that she was told she was unable to seek a work permit for CS. On this point I note that Ms. Robinson’s September 10 texts state that she asked to permit CS, but the Union would not let her and would not tell her why. However, I find these texts do not persuade me that 1) Ms. Robinson ever requested a work permit for CS, or 2) the Union ever refused to issue CS a work permit.
[100] With respect to Ms. Robinson’s text that stated that the Union would not tell her why she could not bring CS back to the production, this is one area where Ms. Moon and Ms. Robinson’s testimony was inconsistent. For the following reasons, I prefer Ms. Moon’s evidence that she advised Ms. Robinson of what the proper procedure to request a work permit was, and what she would have to do if she wanted to seek a work permit for CS. Ms. Moon, unlike Ms. Robinson, had a clear recollection of the events that took place in relation to CS’s work on the Kaslan project. Ms. Robinson testified that CS’s work on the show was “just a blip” for her, in what was an otherwise very busy time of her working life, and she had difficulty remembering the events. Additionally, Ms. Robinson candidly admitted that she was not always honest in her text messages to CS. For example, she testified that she was not being honest with CS when she told him his work for her was “awesome”. She said in reality his work was “adequate”. She testified she was not honest with CS in her text messages because at the time she was texting with him, he was really upset, and she was trying to “calm the situation”.
[101] With respect to Ms. Robinson’s text that the Union told her it would not let her permit CS, I note that this is not inconsistent with Ms. Moon’s evidence, and my finding, that she advised Ms. Robinson she would have to go through the proper Union procedure, including considering Union members and permittees first, if she wanted to get a work permit for CS. As I have found above, Ms. Robinson ended up hiring either Union members or permittees to fill the role that CS was performing on the production, so if Ms. Robinson had applied for a work permit for CS, it likely would have been rejected because there were available Union members or permittees to perform the work. I find Ms. Robinson’s text indicating the Union told her it would not let her permit CS was more likely in relation to Ms. Moon’s instructions regarding proper Union hiring procedures, than to a flat refusal to approve a work permit.
[102] For the above reasons, I find that Ms. Robinson never requested a work permit for CS, and that Ms. Moon never refused or denied any work permit for CS. Although Ms. Robinson may have inquired about what it would take to get CS back on the show, once she found out what she had to do, she did not request a permit for CS. Further, while Ms. Moon may have indicated that a work permit for CS was unlikely to be approved if members or permittees were available, she never refused to approve one. As a result of these findings, I find CS has not proved he experienced an adverse impact from the Union refusing to issue a work permit for him on the Kaslan Project.
[103] Before moving on, I will briefly comment on a string of text messages between CS and GD, the mutual acquaintance who put CS in contact with Ms. Robinson in relation to the Kaslan Project. In these text messages GD appears to be telling CS that Ms. Robinson told GD that she spoke with the Union and multiple people told her (Ms. Robinson) that they would refuse to permit CS onto the Kaslan Project. GD goes on to tell CS that Ms. Robinson was going to give GD documents which show the Union considered CS “unemployable when [Ms. Robinson] was trying to get you permitted”.
[104] During the hearing, the Union objected to the admissibility of these text messages, on the basis that they were hearsay evidence. I admitted the text messages pursuant to my authority under s. 27.2 of the Codeto accept evidence even if it would not be admissible in a court of law. However, I explained that I would consider what weight, if any, to give to the evidence. Ultimately, after reviewing all of the evidence, I have decided to give this evidence no weight.
[105] In the text messages, GD was not expressing first hand knowledge about what the Union stated in relation to CS, only what she says Ms. Robinson told her. Further, GD may or may not have been telling CS the truth about what (if anything) Ms. Robinson told her. Importantly, the information in GD’s text messages was not provided under oath, and was not subject to testing in cross-examination. In any event, what GD says in the text messages is similar to the evidence I have accepted in this hearing, which is that Ms. Robinson was told she could not permit CS without going through the proper Union procedure. To the extent that the texts suggest the Union said CS was “unemployable”, that evidence is inconsistent with Ms. Robinson’s and Ms. Moon’s testimony, which was given under oath and subject to cross-examination at the hearing. To the extent that the text messages state that people other than Ms. Moon refused to approve a work permit for CS, that evidence is inconsistent with Ms. Bronswyk’ s evidence that only the Senior Steward is responsible for reviewing and approving work permits.
[106] I next move on to consider whether the conversation between Ms. Moon and Mr. Seed, on its own, resulted in an adverse impact for the purposes of the Code.
Did Ms. Moon’s Comments to Mr. Seed amount to an adverse impact?
[107] As set out above, the parties agree that following CS’s removal from the Kaslan Project, Ms. Moon had a conversation with Mr. Seed regarding CS. With respect to some areas, the parties agreed on the content of that conversation. However, one area where the parties disagreed, was on the question of whether, during the conversation, Ms. Moon stated to Mr. Seed that if a permit request for CS ever crossed her desk she would reject it.
[108] I begin by reiterating the distinction between a request for a work permit, which is made by a production, and an application for permittee status, which is made by a non-Union member. For clarity, what was discussed in the conversation between Ms. Moon and Mr. Seed was whether and how CS could get a work permit, and not his applications for permittee status in a particular department.
[109] Mr. Seed testified that after CS was removed from the Kaslan Project, Ms. Moon contacted him as the office coordinator, in relation to the procedure for a “send blast” email. He explained that a send blast was a mass email that was sometimes sent to Union members and permittees when a production wanted to fill a particular vacancy and had experienced challenges doing so. He testified that while he was on the phone with Ms. Moon, he asked her questions about why CS was removed from the Kaslan Project. He said that he wrote a letter to CS after his conversation with Ms. Moon, and included the “gist” of the conversation in that letter. At the hearing, he said he “stood by” the information that he put into the letter at the time. The letter, which appears to have been provided to CS via a text message on September 11, 2018, set out the following material information:
1. When Mr. Seed stated he thought CS had 100-200 days on Union productions, Ms. Moon said CS was a “liar” and told Mr. Seed CS only had 35 Union days in the Set Decorating Department, and 15 days in the Costumes department, for a total of 50 Union days.
2. Ms. Moon said CS “makes up a lot of stories” and said CS had “behavioural issues” in the past including an “incident” that “cost a significant amount of time and resources and legal representation”.
3. Ms. Moon said that CS would go to work and do good work, but would eventually “crash and burn”, and that although he had “skills”, his “emotional problems” were his undoing.
4. Ms. Moon told Mr. Seed that “if a permit request lands on her desk with your name on it – it is rejected”.
5. Ms. Moon followed her discussion about CS, with a “brief rant about the problems of illegal permittee hires in general”.
[110] Ms. Moon’s evidence at the hearing was that she agreed she spoke with Mr. Seed about the send blast email, and that she told him that CS had behavioural problems, and that things would “go sideways” after a period of good work. She testified that what she meant by that statement, which she did not share with Mr. Seed, was that her experience with CS was that he was insubordinate and did not like being told what to do, and “certainly didn’t follow instructions…it was a problem”.
[111] Ms. Moon denied Mr. Seed’s evidence that she told him she would reject any permit application from CS. She testified that she may have explained that CS was unlikely to get a permit because Union members were available, but she said she had no discretion to deny a work permit if the production had gone through its “due diligence” in ensuring no Union members or permittees were available. She said she would be breaching the Master Agreement and subject to a grievance from a production if she were to do so. Ms. Moon emphasised that over the entire time she was the Union’s Senior Steward, she never received a work permit request for CS.
[112] I find that in some regards, Mr. Seed and Ms. Moon’s evidence about the content of their conversation was consistent. However, where their evidence differs, specifically in relation to whether Ms. Moon said that if a permit request for CS crossed her desk she would reject it, I prefer Ms. Moon’s evidence. Ms. Moon no longer works for the Union, and did not appear to have any particular stake in the outcome of this proceeding. Further, she had a clear recollection of the events. She explained that she had numerous encounters with CS over the years, and that when she saw the deal memo for the Kaslan Project with his name on it, she immediately wondered what was going on, and tried to figure out how he got onto the show without a permit. She was much more involved with the events than Mr. Seed was, and seems to have had more reason to remember them.
[113] In contrast, Mr. Seed’s evidence appeared, at times, to be tailored to be sympathetic to CS, and hostile towards the Union. The Union cross-examined Mr. Seed about his own experience on the Kaslan Project, and he admitted that shortly after CS was removed from the project, he was removed himself. Additionally, after Mr. Seed had completed his evidence, and the Tribunal told him he was free to go, Mr. Seed asked CS directly if he was going to ask him any further questions about “the magic words”. He then proceeded to give unsolicited evidence about how the Union failed to assist him with his own negative experience on the Kaslan Project. It appeared from this evidence, as well as conduct that occurred outside of the hearing[2], that Mr. Seed had a specific agenda to push at this hearing, and that it did not necessarily have to do with the specific facts of this complaint.
[114] Further evidence supporting that Ms. Moon did not state she would reject permit requests for CS, includes both her and Ms. Bronswyk’s testimony that the Senior Steward has no discretion to refuse a permit request that has been submitted in accordance with the terms of the Master Agreement. Indeed, Article 3 of the Master Agreement, which sets out the process for requesting and approving work permits, does not appear to include any discretion for the Union to reject a work permit request, other than for reasons relating to non-compliance with the terms of the Article.
[115] In addition, the evidence from both CS and the Union, demonstrated that following the Kaslan Project, CS was granted a work permit to work on the Debris production in 2021. As such, even if Ms. Moon made the comment that she would reject any future work permits involving CS, I have no evidence before me that any work permit that was ever submitted for him was ever rejected, and in fact, the only work permit that ever appears to have been requested [3] for CS was approved.
[116] On balance, I find that Ms. Moon did not tell Mr. Seed that if a permit request for CS crossed her desk she would reject it. I find it more likely, and aligned with the other evidence in this hearing, that Ms. Moon explained she was unlikely to approve a permit request for CS on the Kaslan Project, because there were Union members available to fill the vacancy.
[117] To the extent that CS argues that Ms. Moon’s other comments to Mr. Seed adversely impacted him in the area of unions and associations, I also reject this argument. I find that the conversation between Ms. Moon and Mr. Seed was a private conversation, in which Ms. Moon was answering direct questions from Mr. Seed, and in which she was sharing her views based on her personal interactions with CS. Mr. Seed, as an office coordinator, was not in a position to impact CS’s union status or employment in any way. As such, I find that CS has not demonstrated Ms. Moon’s comments amounted to an adverse impact for the purposes of the Code .
[118] For the above reasons, I find the only adverse impact CS has proved for the purposes of this complaint is that he was removed from the Kaslan Project.
3. Connection Between Mental Disability and Removal from Kaslan Project
[119] Based on my above findings, the question here is whether CS has proved that the Union’s decision to remove him from the Kaslan Project was connected in some way to either his PTSD, or to a perception on the Union’s part that he had a mental disability. I find he has not.
[120] CS does not clearly explain how his diagnosis of PTSD was connected to his removal from the Kaslan Project. On the one hand, he argues he was targeted for removal from the production because the Union, or at least Ms. Moon, considered him to be “mentally unhinged”. This could be interpreted as an argument that the Union perceived CS to have a mental disability which he did not have, and treated him adversely on the basis of that perception. On the other hand, CS also argues the trauma he experienced in 2017 in relation to the aggravated sexual assault and the following workplace bullying and harassment, was “weaponized” and used against him throughout his dealings with the Union, including in relation to the events surrounding his removal from the Kaslan Project. This argument can be interpreted as CS alleging his PTSD impacted him while he was working on the Kaslan Project or other, earlier productions, such that there was a connection between his actual disability (not perceived disability) and his removal from the Kaslan Project. Because I am not entirely clear which argument CS is advancing – discrimination based on actual disability versus discrimination based on perceived disability – I have considered the connection between CS’s removal from the Kaslan Project in relation to both his actual PTSD, and the Union’s perception of him as having a mental disability.
[121] I will begin my analysis of the connection between CS’s removal from the Kaslan Project and any disability or perceived disability, by considering the Union’s argument that it had non-discriminatory reasons for removing CS from the production.
Non-Discriminatory Reasons for Removal
[122] As I have set out above, CS was not a Union member or a permittee at the time he was working on the Kaslan Project, and he had not been granted a work permit to work on the production. As such, I find CS was an illegal hire on the Kaslan Project. Insofar as CS argues that he told Ms. Robinson he required a work permit before commencing work, I prefer Ms. Robinson’s evidence that she asked CS if he was a Union member and he said that he was. Ms. Robinson’s evidence is consistent with the start slip that CS filled out in which he indicated he was a Union member. Further, CS’s own evidence throughout the hearing was that he often forgot things, or made mistakes, including substantial mistakes, in relation to issues involving his membership status. Even if I accepted CS’s evidence that he told Ms. Robinson he would require a work permit, the reality of the situation is that he never received a work permit while he was working on the Kaslan Project, and he remained an illegal hire.
[123] I further find that as the Senior Steward, Ms. Moon had an obligation to ask the production to remove CS from the production unless the production submitted a valid work permit request for him. I accept Ms. Bronswyk and Ms. Moon’s evidence that a main role of the Senior Steward is to enforce the Master Agreement, and that enforcement includes checking to see if people working on Union productions are doing so legally, and ensuring that if there are Union members or permittees available to perform work, they are hired over non-Union members. Ms. Bronswyk and Ms. Moon’s evidence was consistent with each other, as well as with the Union’s Hiring Policies and Procedures, which state that:
Any non-891 member found working without a valid work permit or record of being dispatched will be removed from the job and will risk suspension of their permittee status. [emphasis added]
[124] I also find that Ms. Robinson, as the Head of the Department for the production, had an obligation to remove CS from the production after she found out that he was not a Union member and was not hired properly onto the production. Had she not done so, the production would have been subject to a grievance from the Union. When asked how she felt after learning CS was not a Union member as he had told her, Ms. Robinson explained she did not feel good about it at all, as it put her in an awkward position.
[125] On its face, therefore, the Union had a clear, non-discriminatory reason for seeking CS’s removal from the Kaslan Project.
[126] CS, however, asks the Tribunal to find the Union, and Ms. Moon in particular, acted maliciously in targeting him specifically for removal. In support, he led evidence that he had submitted numerous applications for permittee status over the years which were always rejected. He testified that he felt the Union “conveniently lost” his information, and he felt this was done on purpose to prevent him from becoming a permittee. He also argued that although the Union never admitted him to membership, he believed he had the required number of days to become a Union member, and this is also evidence of the Union’s bias against him. Finally, he points to Ms. Moon’s comments to Mr. Seed about his “behavioural issues” and her reference to an “incident”, which he says refers to the aggravated sexual assault and following events. CS says Ms. Moon’s comments and reference to the sexual assault and following events demonstrates she perceived him to be mentally disabled and unfit for work. In his submissions he states, “you state I was an illegal hire, even if that was true, that doesn’t justify the slanderous comments maligning my mental health and traumatic experience from 2017”.
[127] I will consider each of CS’s arguments in turn, beginning with the evidence and arguments concerning his applications for permittee status and the number of Union days he worked.
Applications for Permittee Status and Union Membership
[128] CS’s evidence about his permittee status and the number of Union days he had in various departments, does not demonstrate any connection between his removal from the Kaslan Project, and his PTSD or the Union’s perception that he was mentally disabled.
[129] CS does not deny that at the time he was working on the Kaslan Project, he was not a permittee or a Union member, nor does he argue that his September 2018 applications for permittee status were related to his work on the Kaslan Project. Insofar as CS is arguing the Union’s unfair refusal to grant him Union membership or permittee status over the years should give rise to an inference that his removal from the Kaslan Project was motivated by the Union’s perception of him as being mentally disabled, I reject that argument. CS has not demonstrated the Union unfairly refused to grant him Union membership or permittee status at any time, including in relation to the 2018 permittee applications.
[130] CS acknowledged in his evidence that there were numerous errors in the applications for permittee status he submitted to the Union, including the inclusion of education he did not complete, and the reference to an educational program he did not undertake. Further, with respect to at least one of his Set Decorating applications, CS admitted he had not passed the test that was required to be passed in order to qualify for permittee status; having received 42% instead of the required 70%. Finally, with respect to one of his applications to the Costume Department, CS acknowledged that he had not provided the required evidence of his educational qualifications.
[131] This evidence, along with Ms. Moon’s evidence that CS had never submitted a complete application for permittee status, and documentary evidence which showed that CS was added to the SSRL list on two occasions when he provided incomplete permittee applications, undermines CS’s argument that the Union was purposely and unfairly preventing him from attaining permittee status. On my review of each of the applications for permittee status that were entered into evidence at this hearing, the reality of the situation is that CS never (including both applications he made in September 2018) submitted a complete application that demonstrated he met the qualifications of the particular department he was applying to.
[132] Additionally, CS’s argument that he had “hundreds” of Union days worked, rests, at least in part, on his argument that certain days he was paid out as part of the settlement agreement he signed in 2017, should have counted as Union days worked. Both Ms. Bronswyk and Ms. Moon testified that to count as Union days, the days had to be actually physically worked, and not just days that a person was paid for. Ms. Bronswyk explained the reason for this was because the days requirement was meant to ensure a person had a certain level of experience actually working in a department. Counting days that a person did not physically work would not ensure the person had the required experience to be successful in the department.
[133] To the extent that CS argues days he worked on Union productions when he had not been properly dispatched or given a work permit should be counted towards total Union days worked, the Hiring Policies and Procedures address that situation as well and state:
Days worked as a non-permitted worker may not count towards membership requirement in IATSE Local 891. If you receive a call and/or call-back to work by anyone other than an 891 dispatcher, you must inform the Union by contacting the senior steward’s assistant at [xxx-xxx-xxxx] to confirm that a valid work permit has been issued for your employment. If no work permit has been authorized, you may not accept the call, and you will be referred to the senior steward. [emphasis added]
[134] Ms. Bronswyk and Ms. Moon’s evidence, together with the information set out in the Hiring Policies and Procedures, undermines CS’s argument that he had the required number of days to become a Union member and the Union unfairly denied him membership.
[135] I next move on to consider whether Ms. Moon’s comments to Mr. Seed give rise to an inference that CS was targeted for removal from the Kaslan Project at least in part, due to his PTSD or the Union’s perception of him as being mentally disabled.
Ms. Moon’s Comments to Mr. Seed
[136] Earlier in this decision, I set out the material parts of Mr. Seed’s letter to CS concerning his conversation with Ms. Moon about CS’s removal from the Kaslan Project. In his testimony at the hearing, Mr. Seed clarified that when he used the word “emotional” in his letter, he was using the word as a synonym for “behavioural”, which he testified was the actual word Ms. Moon used when she was describing CS’s “issues”.
[137] As I have found above, I do not accept that Ms. Moon stated she would reject any permit request that crossed her desk. With respect to the remainder of the conversation, in her testimony, Ms. Moon said the purpose of her conversation with Mr. Seed was to educate him on the proper process for putting together and issuing a send-blast email to the membership. She said she talked with Mr. Seed about the fact that CS had not been honest with Ms. Robinson when he told her he was a Union member. She also said that Mr. Seed seemed to think CS had enough Union days to be a member, and she told him that a person had to have 90 Union days to be a member and had to meet the requirements of the department, and CS did not.
[138] With respect to whether she discussed CS’s “behavioural issues” with Mr. Seed, she testified that she told Mr. Seed CS could be a good worker with good energy, but that sometimes things could go sideways. When asked at the hearing what she meant by “go sideways”, Ms. Moon explained that she meant that he had some resistance to taking direction from supervisors and colleagues, and that he had a sense of entitlement, a significant lack of understanding of the Master Agreement, and did not follow instructions. She testified that when things went sideways, it was CS’s “own undoing when it happened, because it stemmed from some form of perceived insubordination or insubordination”. Ms. Moon said that when she was referencing CS’s conduct and issues, she was referring to her observations of CS in the labour relations context.
[139] When CS asked Ms. Moon in cross-examination what she meant by his “undoing”, she expanded and stated that in her experience with him in the labour relations context, she observed he had a sense of entitlement, a lack of wanting to be supervised, and that when someone gave him direction that he did not want to follow, he would react anywhere from angry to extreme sadness.
[140] In relation to Mr. Seed’s allegation that Ms. Moon referenced an incident in the past that had cost the Union significant time, resources and legal representation, Ms. Moon said she never had to hire legal services when representing CS, as she did the work herself; though I note she did not deny referring to an “incident” in the past.
[141] At a high level, Ms. Moon and Mr. Seed’s evidence was consistent on several points, including that Ms. Moon discussed CS’s removal from the show, how many Union days he had with the Union, and that he had behavioural issues when working on productions which were his own “undoing”. Nevertheless, it did differ on several other points. Above, I have set out why I preferred Ms. Moon’s evidence to Mr. Seed’s in relation to whether she told him she would reject any permit request in relation to CS that came across her desk. Here, I have the same concerns about the credibility and reliability of Mr. Seed’s evidence in relation to the other conflicts in the evidence. However, I do not need to decide which of Ms. Moon’s or Mr. Seed’s versions of the conversation I accept. That is because nothing Ms. Moon testified to having said or meant, and nothing Mr. Seed wrote in the letter or testified about, provides the basis for a finding that there was a connection between CS’s removal from the Kaslan Project, and either his actual PTSD, or Ms. Moon’s perception of him as being mentally disabled.
[142] First, Ms. Moon did not expressly reference a mental disability in either version of the conversation. Neither “behavioural issues” nor “emotional problems”, nor things “going sideways”, is an express reference to a disability. Similarly, stating CS was a “liar” or “makes up stories” is not an express reference to a disability.
[143] Next, I do not understand Ms. Moon’s reference to CS’s conduct in either version of the conversation as being an implied reference to an actual disability, or otherwise demonstrating that she perceived him to have a mental disability.
[144] CS does not clearly explain how Ms. Moon’s comments to Mr. Seed relate to either his PTSD or the Union’s perception of him as being unfit for work because of his PTSD or some other mental disability. In his submissions, he states that Ms. Moon
…based her opinions of me not off of experience, talent, reference, but of a time in my life when my mental and physical disabilities were effected [sic] by major life changing trauma, she created a false narrative that I was indicative of my disabilities, in actuality I was suffering and faced the most extreme of adversities at a time in my life when I didn’t think I would survive.
[145] However, he does not explain what he means by Ms. Moon’s “opinions” of him, or how such opinions related to why she asked the production to remove him from the Kaslan Project. He does not argue that he behaved in a certain way on productions because of his PTSD, or that any of the conduct that Ms. Moon allegedly talked about with Mr. Seed was related or attributable to his PTSD. Nor does he address the fact that he was working illegally on the Kaslan Project, except to say that “[y]ou state I was an illegal hire, even if that was true, that doesn’t justify the slanderous comments maligning my mental health and traumatic experience from 2017”. Again, this submission does not explain how Ms. Moon’s comments, even if taken exactly as written by Mr. Seed, “malign” his mental health.
[146] Assuming Ms. Moon referenced CS’s “behavioural issues”, or even his “emotional problems”[4], such comments and/or her comment about things “going sideways” on productions, arose in the context of Ms. Moon talking about CS being an illegal hire. Further, Ms. Moon’s evidence about what she meant when she was referring to CS’s behavior/conduct all had to do with her experiences with him in the labour relations context. I accept Ms. Moon’s evidence that her comments about CS’s conduct and things “going sideways”, had to do with her view of CS as being insubordinate, dishonest, and not understanding the Master Agreement. These views can, and I find in this case did, exist independently from any views about CS’s actual or perceived disability.
[147] CS argues that the events of 2017, including the aggravated sexual assault and the events that followed, tainted Ms. Moon’s view of him and that she “weaponized” his trauma from these events, including by targeting his removal from the Kaslan Project. However, that argument does not connect his PTSD or any perceived disability to the adverse impact of the removal. To the extent CS is asserting that after the 2017 events Ms. Moon perceived him to be mentally disabled and unable to work on Union productions and that is why she targeted him for removal from the Kaslan Project, that assertion is not made out on the evidence before me.
[148] Even if I were to accept that Ms. Moon referenced an “incident” in the past, there is no indication that Ms. Moon was referring to either CS’s aggravated sexual assault and/or the bullying and harassment he experienced on the Siren production. Nor is there any indication that she was referring to CS’s PTSD (or her perception of CS’s as being mentally disabled) following these events. In my view, Ms. Moon’s alleged comment to Mr. Seed was patently about the Union’s expenditure of resources on CS in the labour relations context. Based on the evidence from both CS and Ms. Moon at the hearing, the reference (if any was made) was likely in relation to CS’s lengthy negotiations and settlement with the production company directly, and the Union’s involvement in in that process. A reference to the events of 2017, without more, falls short of connecting the events of 2017 (which themselves are not a mental disability) or, even more remotely, CS’s resultant PTSD or Ms. Moon’s perception he was mentally disabled because of these events, to the Union’s subsequent conduct in removing CS from the Kaslan Project.
[149] The evidence in this case, including with respect to Ms. Moon’s conversation with Mr. Seed, demonstrates overwhelmingly that CS was an illegal hire on the Kaslan Project, and Ms. Moon was acting properly within the scope of her role as Senior Steward, and in accordance with her obligation to enforce the Master Agreement, when she asked that he be removed from the production.
[150] For the above reasons, I find CS has not proved that Ms. Moon’s comments to Mr. Seed demonstrate a connection between CS’s removal from the production, and any actual or perceived disability.
[151] Before I conclude, I wish to comment briefly on the various allegations CS made in his submissions about Ms. Moon’s conduct at the hearing. He variously claims she shamed him, degraded him, defamed him, and otherwise gave her evidence in a malicious manner. I disagree with this characterization of her evidence. Ms. Moon testified in a straightforward and forthright manner, and answered the questions asked of her in a calm and often empathetic way.
V CONCLUSION
[152] For the above reasons, the complaint is dismissed in its entirety.
Shannon Beckett
Tribunal Member
[1] Under Article 3.05 of the Master Agreement, if a production chooses to hire an individual who is not a member of the Union and does not qualify for a work permit, the production must hire a Union member in what is called a “counterpart position”.
[2] For example, Mr. Seed contacted the Tribunal registry on two occasions after giving his evidence and asked to be recalled as a witness, or to provide a written statement so that he could provide additional evidence. I denied his requests, and advised the parties about these requests.
[3] CS did not give evidence of any other work permit that had ever been requested.
[4] I say, “even if” because Mr. Seed testified he used the word “emotional” as a synonym for “behavioural”.