Brown v. Fraser Health Authority and another, 2024 BCHRT 262
Date Issued: September 12, 2024
File: CS-000237
Indexed as: Brown v. Fraser Health Authority and another, 2024 BCHRT 262
IN THE MATTER OF THE HUMAN RIGHTS CODE,
RSBC 1996, c. 210 (as amended)
AND IN THE MATTER of a complaint before
the British Columbia Human Rights Tribunal
BETWEEN:
Angela Brown
COMPLAINANT
AND:
Fraser Health Authority operating as White Rock Home Health and Susan Powell
RESPONDENTS
REASONS FOR DECISION
APPLICATION TO DISMISS A COMPLAINT
Section 27(1)(c) and (d)(ii)
Tribunal Member: Amber Prince
On their own behalf: Angela Brown
Counsel for the Respondents: Bianca Jaegge and Julia Lauwers (until November 18, 2021)
David J. Bell (after November 18, 2021)
I INTRODUCTION
[1] Angela Brown was employed with the Fraser Health Authority [Fraser Health] as a registered nurse from 2008 until Fraser Health terminated her employment on January 5, 2017. Ms. Brown filed a complaint against Fraser Health, and her manager at Fraser Health, Susan Powell [together, the Respondents].
[2] Ms. Brown alleges that she has a physical disability in the form of a scent sensitivity. She says that between approximately August 2014 to August 2015 she was adversely impacted by repeated exposure to scents at work. She took an unrelated leave of absence from work from approximately October 2015 to December 2016. She says that Fraser Health would not accommodate her scent sensitivity on her anticipated return to work; and terminated her employment instead on January 5, 2017. She alleges that the scent exposures and termination violate s. 13 of the BC Human Rights Code [Code].
[3] The Respondents deny discriminating against Ms. Brown and apply to dismiss her complaint on the basis that it has no reasonable prospect of success under s. 27(1)(c) of the Code. They say that Ms. Brown has no reasonable prospect of proving that: her alleged scent sensitivity is a disability under the Code; that she was adversely impacted by the scent exposures or termination; or that there is a connection between her scent sensitivity and the termination of her employment. The Respondents further say that they were in the process of accommodating Ms. Brown at work. They say that this process cannot be a breach the Code, and that there was nothing further they could do to accommodate Ms. Brown.
[4] Alternatively, the Respondents argue that Ms. Brown’s complaint against Ms. Powell should be dismissed under s. 27(1)(d)(ii) of the Code because Fraser Health is responsible for Ms. Powell’s workplace conduct.
[5] This issues before me are whether to: dismiss Ms. Brown’s complaint under s. 27(1)(c) of the Code; or dismiss Ms. Brown’s complaint against Ms. Powell under s. 27(1)(d)(ii) of the Code .
II DECISION
[6] For reasons that follow, I deny the Respondents’ application to dismiss the complaint [ATD] under s. 27(1)(c) of the Code. The Respondents have not persuaded me that Ms. Brown has no reasonable prosect of proving discrimination, or that they are reasonably certain to prove they accommodated Ms. Brown to the point of undue hardship.
[7] I allow the Respondents’ application to dismiss Ms. Brown’s complaint against Ms. Powell under s. 27(1)(d)(ii) of theCode. The Respondents have persuaded me that it does not further the purposes of the Code for Ms. Brown’s complaint to proceed against Ms. Powell, as an individual respondent.
[8] While I am allowing Ms. Brown’s complaint to proceed against Fraser Health, I anticipate that a hearing of this matter will be lengthy, complex, and difficult. The parties may be better served by resolving the complaint through mutual agreement. I encourage the parties to take advantage of the Tribunal’s mediation services to explore that possibility.
[9] On behalf of the Tribunal, I apologize to the parties for the lengthy delay in issuing this decision.
[10] Next, I turn to the parties’ ATD materials to set out the background to Ms. Brown’s complaint. Then I address the Respondents’ ATD under s. 27(1)(c) and s, 27(1)(d)(ii) in turn.
III BACKGROUND
[11] The background is taken from the parties’ extensive materials. I have considered all of their materials, but only refer to what is necessary to explain my decision. I make no findings of fact.
A. Pre-Complaint Context
[12] Ms. Brown is a registered nurse, who began nursing in 1992. She began her employment as a nurse with Fraser Health in January, 2008: Kris Wheatley Affidavit, Exhibit A, p. 581. While employed with Fraser Health, Ms. Brown was a member of the BC Nurses Union [union], and her employment was governed by a collective agreement.
[13] In 2009, Fraser Health implemented a scent policy requiring employees, physicians, volunteers, clients and visitors to refrain from using or wearing scented products in Fraser Health facilities [Scent Policy].
[14] In or around July 2014, Ms. Brown transferred from Fraser Health’s Newton office to the White Rock Home Health office [White Rock office].
[15] While at the Newton office, Ms. Brown reported having a scent sensitivity. She provided Fraser Health with medical documentation to support her stated scent sensitivity, as follows:
- January 27, 2012 letter from Dr. Lim: “she is intolerant to fragrance and develops headaches from the exposure. Therefore, she needs to remove herself from the environment”: Wheatley Affidavit, Exhibit A, p. 173.
- November 15, 2012 Work Absence Certificate from Dr. Stevenson :
This is to certify that Angela Brown was assessed in this office and was/ is unable to work due to a severe headache brought on by an exposure to fragrance in her work environment. She will be able to work on Monday November 19th 2012. If she is well, she may return sooner: Wheatley Affidavit, Exhibit A, p. 172.
- May 24, 2013 Note from Dr. Lim: please excuse f[ro]m work on May 16 and 17, 2013 due to illness arising from exposure to fragrance”: Wheatley Affidavit, Exhibit A, p. 171.
- September 17, 2013 Outpatient Clinic Note from Dr. Schellenberg :
“Significant reactions to inhaled scented products. Her migraines and nasal congestion clearly are triggered by scents such as perfumes, which is not an uncommon occurrence in individuals and is not mediated through an allergic mechanism. Unfortunately, irritant nerve endings can be triggered by these scents and it is very important that the policy of a scent-free workplace be enforced for her benefit and for the benefit of her employer in that she will not, therefore, have to miss work because of reactions … If she can continue to avoid the scented products, the sensitivity often wanes to a significant degree and it is critical that she not be continuously exposed as sensitivity increases if this is the case: Wheatley Affidavit, Exhibit A, p. 191-192.
- March 13, 2014 Occupational Fitness Assessment by Dr. Lim : indicates that Ms. Brown’s primary diagnosis is “inhaled scents hypersensitivity syndrome.” Dr. Lim’s treatment plan includes: “avoid exposure to scents / fragrance and latex. Enforcement of workplace scent free policy.” Under “Additional Recommendations/Comments”, Dr. Lim states: “1) Wearing a mask does not solve her problem. 2) If there is a policy for ‘no scents’ it should be enforced. 3) If exposed she should leave immediately”: Wheatley Affidavit, Exhibit A, p. 196-198.
[16] In June 2013, Ms. Brown’s union filed a grievance on her behalf. The union alleged that Fraser Health did not provide Ms. Brown with a safe workplace by not enforcing its Scent Policy. The union also argued that Ms. Brown’s sick leave bank should be replenished since the sick days were a result of Fraser Health not properly enforcing its no-scent policy. Under the Collective Agreement, an arbitrator heard the grievance and issued a decision on April 15, 2014: Wheatley Affidavit, Exhibit A, p. 580-589. The arbitrator held that Fraser Health was not enforcing its Scent Policy. However, the arbitrator did not agree with the union that Ms. Brown’s sick leave bank should be replenished. The arbitrator held instead that Ms. Brown’s use of paid sick leave was a proper use of that benefit.
[17] On July 18, 2014, Ms. Brown transferred from the Newton office to the White Rock office. Fraser Health hoped that the White Rock office would be a better fit for Ms. Brown, because she would have her own office with a window, and a separate exit and entryway, in contrast to the open “pod” system at the Newton office: Susan Powell Affidavit, paras. 10-11.
[18] Susan Powell was the manager of the White Rock office until she retired in August 2016. Brad Miller became the manager at the White Rock office when Ms. Powell retired. Debra Westendorp oversaw the day-to-day operations at the White Rock office, as the Team Lead, and was Ms. Brown’s supervisor: Powell Affidavit, para. 3.
[19] Fraser Health had signage throughout the White Rock office reminding staff of its Scent Policy before and during Ms. Brown’s employment at that office. Nonetheless, Ms. Brown reported multiple incidents of scent exposure while working at the White Rock office. It is those reported scent exposures and the termination of Ms. Brown’s employment in January 2017, that are the subject of Ms. Brown’s human rights complaint.
B. Ms. Brown Reports Scent Exposures at the White Rock Office
[20] On August 8, 2014, Ms. Brown reported an exposure to cologne worn by the home health director during a staff meeting held on a patio of a work site. Ms. Brown reported that she returned to her office with the window open, hoping these steps would address her symptoms, but they did not. She reported that the scent of the cologne caused her to have a headache that turned into a migraine, blurred vision with pressure behind her right eye, and nausea: Wheatley Affidavit, Exhibit A, p. 481-484. She recommended that the Scent Policy be enforced to address scent exposures.
[21] In response to this report, Ms. Powell spoke with the director regarding the scent exposure and the effect it had on Ms. Brown and reminded him of the Scent Policy. In her “Incident Details Manager Report”, Ms. Powell wrote: “it was determined that holding the group meeting outside to reduce potential exposure would be a more proactive approach to scent exposure”: Wheatley Affidavit, Exhibit A, p. 481 and 481.
[22] On August 14, 2014, Ms. Brown reported another scent exposure:
I walked into my colleague’s office. She was the only one in the office. We were discussing a client situation. I immediately could smell a scent. The scent was over powering. I communicated to her that I was smelling something that was bothering me. My coworker had said that she had put on essential oil for pain, and apologized to me. I left the space right away. I went back to my office and my symptoms got worse. I tidied up my outstanding work and left shortly after. This was reported to my team leader immediately: Wheatley Affidavit, Exhibit A, p. 477-479.
[23] Ms. Brown reported that the scent exposure caused her to have a headache that turned into a migraine, blurred vision with pressure behind her right eye, and nausea: Wheatley Affidavit, Exhibit A, p. 477. She recommended that the Scent Policy be enforced to address repeat exposures.
[24] In response to Ms. Brown’s report, Ms. Westendorp confirmed that the colleague had not complied with the Scent Policy, and asked the colleague to go home, shower, change clothing and return to work without scented products on her person. As a result of the exposure, Ms. Brown did not work a portion of her shift on August 14, 2014 and her entire shift on August 15: Wheatley Affidavit, Exhibit A, p. 476.
[25] On September 17, 2014, Ms. Brown reported to Ms. Westendorp and Ms. Powell that she was exposed to perfume outside of the bathrooms while walking to the photocopier. Ms. Brown reported that she returned to her office with the door closed and window open, but symptoms had started, and she continued to feel unwell. She left for the day just over an hour later: Powell Affidavit, Exhibit G, p. 26. Ms. Westendorp investigated Ms. Brown’s reported exposure and sent a staff home to change: Powell Affidavit, para. 19.
[26] On October 16, 2014, Ms. Brown reported a scent exposure as follows:
My team lead [Ms. Westendorp] brought a new employee to meet me. As I approached the new employee to shake her hands, I could get a strong perfume scent. I backed up to get a good distance between us. I gestured to my team lead to let her know there was a scent I could smell … [Ms. Westendorp] and the new employee then left the office. I shut my door and opened the window to get some fresh air. I also turned on the fan. I felt pressure behind my right eye and had a headache. I still have an ongoing headache and pressure behind my right eye. My vision is impacted as well. I have had to keep the lights off to prevent any further irritation. Due to my workload I am choosing to not leave work to prevent any further burden onto my colleagues. I continue to work with symptoms: Wheatley Affidavit, Exhibit A, p. 455.
[27] Ms. Brown recommended that Fraser Health review the Scent Policy with new employees before they attend the work site and ensure that staff adhere to the Scent Policy: Wheatley Affidavit, Exhibit A, p. 455.
[28] In response to this report, Ms. Powell indicated that new employees “will be advised to not wear any scented clothing or scents that may be lingering on their person or clothing when coming to our unit to work”: Wheatley Affidavit, Exhibit A, p. 454.
[29] On October 21, 2014, Ms. Brown emailed Ms. Westendorp to report that she could smell the strong scent of perfume outside of the first bathroom, but that no one was around the area. Ms. Brown reported that she immediately left the area and returned to her office with the door open: Powell Affidavit, Exhibit I, p. 28.
[30] On December 18, 2014, Ms. Brown reported a scent exposure from the previous day as follows:
I was walking down the hall at work and could smell several different scents. I am not sure what they were. A few minutes later, my colleague brought two techs into my office to have them look at a program on my computer. The female tech came near me to the right, and I could smell scent. I asked if anyone was wearing any scents or perfume and she told me she had scented hand lotion on. I let her know that I am highly allergic and needed her to leave my office. She did not leave right away, but just stepped back a few feet. I asked her to leave again. After being exposed to her scent, I felt nauseous. I started to feel pressure in my head before also getting a terrible headache. I experienced a visual impact. The headache continued to the next day and I also felt a stinging sensation in my sinuses. I still have the headache today: Wheatley Affidavit, Exhibit A, p. 433.
[31] Ms. Brown’s recommendation to prevent reoccurrence was adherence to the Scent Policy: Wheatley Affidavit, Exhibit A, p. 433.
[32] In response to Ms. Brown’s report, the visiting tech was asked to remove herself from Ms. Brown’s workspace. Ms. Powell was out of the office at the time and called Ms. Brown to inquire about her symptoms. Ms. Brown reported that despite opening the window and closing the door to the main office for over 60 minutes her symptoms were unresolved. Both Ms. Brown and the female tech removed themselves from the workplace for the rest of the day. The female tech was provided with a copy of the Scent Policy upon her departure: Wheatley Affidavit, Exhibit A, p. 433. In her investigator comments, Ms. Powell further stated that the female tech may have been in breach of the Scent Policy, although a secondary inspection did not indicate a scent present during the investigation: Wheatley Affidavit, Exhibit A, p. 435.
[33] On January 6, 2015, an individual came into the office to help set up a telephone device. Ms. Brown reported exposure to a scent from the individual. Ms. Powell noticed the scent too and asked the individual to leave the office immediately. Ms. Brown was provided with an alternative space to work in while the office space she usually occupied was ventilated with the window open: Wheatley Affidavit, Exhibit A, p. 112-113.
[34] On January 7, 2015, Ms. Brown emailed Ms. Powell and reported that she was still unwell from the exposure on January 6. Ms. Brown asked Ms. Powell for a meeting “to discuss further ways we can mitigate scent/perfume/fragrance exposures in my workplace”: Powell Affidavit, Exhibit K, p. 30. Ms. Powell scheduled the meeting as requested by Ms. Brown and invited Ms. Westendorp and a Fraser Health Safety Consultant to attend: Powell Affidavit, Exhibit K, p. 30.
[35] On January 12, 2015, a meeting occurred with Ms. Powell, Ms. Westendorp, Ms. Brown and a Fraser Health Safety Consultant to discuss further steps to address Ms. Brown’s scent exposures. Ms. Brown proposed creating a sign-in sheet where visitors would advise if they were wearing scents, which was implemented following that meeting. If a visitor acknowledged they were scented, they were to be sent away. Ms. Brown also suggested putting a scent free sign on her office door, which Fraser Health supported.
[36] After Ms. Brown left the meeting, Ms. Powell determined that if Ms. Brown continued to have levels of exposure after three months, the department would meet with her to assess resources available to reduce her exposures: Wheatley Affidavit, Exhibit A, p. 347. After she left the meeting, Ms. Brown also sent an email to a union representative [rep] stating: “I am wondering about further action in light of my exposures to scent in a work environment with a scent free policy. These exposures are making me unwell, impacting me financially and are draining my sick bank. I feel it is unjust and unreasonable”: Affidavit of Kirstin Jamison, Exhibit B, p 2. [1]
[37] On January 21, 2015, Ms. Brown reported to Ms. Westendorp that she had noticed a scent coming from one of her coworkers the previous day during the “morning huddle.” Ms. Brown advised that she had spoken to the staff member herself at the time of the exposure: Wheatley Affidavit, Exhibit A, p. 113.
[38] On February 11, 2015, Ms. Brown reported to Ms. Westendorp that a colleague was applying a scented lotion to her legs when she walked into the office. She opened her window immediately but reported still feeling symptoms: Wheatley Affidavit, Exhibit A, p. 113.
[39] On February 12, 2015, Ms. Brown reported to Ms. Westendorp that while she was walking down the hall, she noted a scent coming from a coworker who walked past her in the hall.
[40] On February 13, 2015, Ms. Powell sent an email to all White Rock staff reminding them of the need to adhere to the Scent Policy, stating:
“I must strongly insist that each and every one of us make sure that we’re not applying any scented products prior to coming into the office … the impact to others has been significant, staff are leaving the workplace feeling extremely unwell, overall feelings of ill health and well-being are compromised as well as the ability to complete their very important work. This is one area that we do have control over and I expect that each of you will play a part in making this workplace scent free”: Powell Affidavit, Exhibit M, p. 33.
[41] On February 23, 2015, at 8:18am, Ms. Brown emailed Ms. Powell and Ms. Westendorp and reported that she could smell a strong perfume scent outside the area where “HCN keep files and patient information.” Ms. Brown reported returning to her office with the window open, but that she was having symptoms: Powell Affidavit, Exhibit O, p. 35. Ms. Powell replied to the email the same day at 9:35am stating: “I know that you have now gone home and I am sorry for that. [Ms. Westendorp] and I will deal with the situation. One of us will follow up with you on your return: Powell Affidavit, Exhibit O, p. 35.
[42] On February, 25, 2015 a different staff person reported to Ms. Westendorp that she was finding speaking difficult related to a scent that was detected on a colleague: Wheatley Affidavit, Exhibit A, p. 113.
[43] On March 2, 2015, Ms. Brown emailed Ms. Powell and Ms. Westendorp as follows:
As discussed via telephone at 0807, I was exposed to a perfume type scent in the main hallway as I was walking to my office at 0750. There was one employee standing at the HCN area. As shared I do not know her name however it is [JC’s] daughter. I am sitting in my office, window open with heater on as it[‘s] cold. I have symptoms: Powell Affidavit, Exhibit P, p. 36.
[44] Ms. Powell replied to the email promptly stating: “the individual staff member has left the building at this time period please remain in your office for the time being. I will call you when I feel that the air is clear. I am hoping for 30 minutes”: Powell Affidavit, Exhibit Q, p. 37.
[45] On March 3, 2015, Ms. Brown wrote to a union rep indicating that she had to leave work ill on March 2. She confirmed that she was at work on March 3, but was still “suffering symptoms from recent exposures.” Ms. Brown also relayed that she had spoken to Ms. Powell on March 2, and Ms. Powell indicated that she was running out of options to address scent exposures: Powell Affidavit, Exhibit R, p. 38.
[46] On March 17, 2015, Ms. Brown emailed Ms. Powell and said her impression was that another staff, JT was repeatedly wearing perfume at the White Rock office. She indicated that JT had also exposed her to perfume several times in the Newton office and at meetings in the past. Ms. Brown asked whether she could avoid JT at the White Rock office and have something in place to manage her caseloads in light of time loss due to the scent exposures: Powell Affidavit, Exhibit S, p. 39.
[47] On March 17, 2015, Ms. Brown also spoke with a union rep related to her reported scent exposures and workload issues. The union rep followed up with Stephanie Stalker – a disability management consultant, with Fraser Health’s Disability Management department – to inquire about next best steps. The union rep also advised Ms. Brown to follow-up with Ms. Powell about workload coverage / management: Powell Affidavit, Exhibit T, p. 41.
[48] On April 17, 2015, Ms. Brown called Ms. Westendorp while Ms. Westendorp was out of the office in a meeting. Ms. Brown told Ms. Westendorp that she had been sitting at her desk and was exposed when a heavily scented person used a workspace within her office: Wheatley Affidavit, Exhibit A, p. 114; Powell Affidavit, Exhibit U, p. 42.
[49] On April 28, 2015, a meeting occurred between Ms. Brown, Ms. Powell, union reps, Ms. Stalker, and human resources consultant, Cynthia Bosch. The purpose of the meeting was to discuss Ms. Brown’s ongoing reported scent exposures in the workplace: Powell Affidavit, para. 36; Exhibit U, p. 41. Ms. Brown indicated that a scent free workplace was “doable.” Cleaning products were discussed, including whether cavi-wipes were used at the White Rock office and whether the wipes would cause adverse scent exposures. The meeting notes indicate that the union would support Fraser Health to address the Scent Policy with staff: Powell Affidavit, Exhibit U, p. 45.
[50] On April 29, 2015, Ms. Brown emailed Ms. Powell as a follow-up to the April 28 meeting discussion about cavi-wipes. Ms. Brown stated: “Please note that I had a look around our unit and we have Cavi-wipe tubs in the clinic room and in the Dirty service area. Also, in the clean supply area there are single use packages of Cavi-wipes for staff to use … the product I have received for cleaning is low scented-Oxivir TB made by Diversey”: Powell Affidavit, Exhibit V, p. 46.
[51] On May 1, 2015, Ms. Brown reported another scent exposure:
I was walking down the hall from the bathroom to my office. I could smell perfumed scent. I went to my office and close the door and opened up the window. I had to go to a meeting shortly after that so I went to the meeting with my Team Leader. I had [a] headache and I was in the Team Leader’s room for about 40 minutes and I returned to my office after that. I walked from my office to my clerical office in the same vicinity and experienced the smell again, causing nausea. I had prior arranged time off for my children’s medical appointment, however, I was still ill from the exposure: Wheatley Affidavit, Exhibit A, p. 231.
[52] Ms. Brown reported a further scent exposure on May 4, 2015:
I arrived to work early at 7:50. I walked down the main hallway to my office and there was no scent present. I left the office at 8:10 for a meeting in another department. I returned to my unit at 8:30 and was walking down the main hallway to my office. There was a strong fragrant scent in the main hallway outside the home care nursing area. I went into my office, closed the door an[d] opened the window as I am supposed to do. The lawn was being cut by a large diesel power driver that was blowing diesel fumes, dust, and smell of grass clippings into my office window … I felt headache, extreme nausea, almost to the point of vomiting. My vision got impacted as my vision to my right eye was altered, and I felt sensation of pressure to the right side of my head dash behind my right eye: Wheatley Affidavit, Exhibit A, p. 316.
[53] With respect to her May 1 and May 4, 2015 reports, Ms. Brown recommended that colleagues adhere to the Scent Policy: Wheatley Affidavit, Exhibit A, p. 316.
[54] In response to Ms. Brown’s May 1 and 4, 2015 reports, Ms. Powell stated: “Repeated and enhanced awareness to all staff of the need for strict adherence to the scent policy in [Fraser Health]. E-mail sent again, close monitoring for scent and opportunities to review and enforce scent policy or taken. Staff meeting discussions, signage, sending staff home to shower and change if found in bre[a]ch of policy”: Wheatley Affidavit, Exhibit A, p. 315. In her investigative comments, Ms. Powell stated: “we were not able to detect the source of reported scent, so not able to determine how to prevent exposures based on this fact … Worker may prevent potential exposure and avoid walking and commonly used [areas] or elect to wear mask to protect from exposures when no source of scent is found”: Wheatley Affidavit, Exhibit A, p. 318.
[55] On May 4, 2015, Ms. Powell wrote an email to all White Rock staff stating that there was an obvious scent detected in the White Rock office at 0830-0840. Ms. Powell further stated: “I must insist that each and every one of us make every effort to abstain from the use of scented products in the workplace. We MUST adhere to the Fraser Health scent policy, no exceptions can be tolerated. If you have any questions or concerns related to this message please come and speak to me personally”: Powell Affidavit, Exhibit X, p. 48.
[56] On May 13, 2015, another employee reported symptoms related to shelves being cleaned with “Oxivir surface cleaner” in the service room. That employee reported coughing feeling her throat burn, becoming distressed, with runny eyes and feeling very unwell: Wheatley Affidavit, Exhibit A, p. 115.
[57] On May 21, 2015, Ms. Brown reported another scent exposure as follows. She arrived at work and did not detect any scent in the office. However, when she left her office to review a sign-in sheet in a main area she could smell a fragrance. She returned to her office, closed the door, opened her window and informed her manager. Shortly after the exposure, she developed pressure behind her right eye, nausea, and developed a headache. Ms. Powell told her to stay in her office, and that she could work from her office for the remainder of the day.
[58] Ms. Brown reported that she stayed in her office with the lights off hoping her symptoms would subside. During this time, another co-worker came into Ms. Brown’s office and insisted that Ms. Brown attend a meeting to discuss sharing the workload for on-call duties. Ms. Brown told the co-worker she was unwell. Ms. Brown describes her co-worker as approaching her with an angry and aggressive tone, and in a raised voice, saying words to the effect of: “this isn’t fair, we’re having a meeting to discuss the absentees and you need to let me know if you are leaving.” Ms. Brown told the co-worker to leave and speak to Ms. Powell. Ms. Brown says that the co-worker glared at her upon leaving. She described feeling unsupported, isolated and afraid for her personal health at work: Wheatley Affidavit, Exhibit A, p. 148.
[59] Also on May 21, 2015, Ms. Brown wrote her union reps to relay the continued use of “strongly scented” cavi-wipes at the White Rock office. She relayed that on May 19, 2015, Ms. Powell had justified the use of the cavi-wipes on the basis of being the product of choice for sterilization purposes. Ms. Brown further confirmed that she had just completed a report related to work events on the same day. She reiterated feeling unsupported, isolated, and unsafe at work, and asked for help: Powell Affidavit, Exhibit Y, p. 50-51.
[60] On Wednesday, May 27, 2015, Ms. Brown emailed Ms. Powell stating that she would be off for the remainder of the week and would supply a medical note to support her absence: Powell Affidavit, Exhibit AA, p. 52. Ms. Brown provided a medical note from Dr. Lim, dated May 22, 2015, stating: “please excuse from work from May 21-26th 2015 because of illness secondary to scent exposures”: Powell Affidavit, Exhibit BB, p. 54.
[61] On May 29, 2015, Ms. Powell led a staff meeting with union support, to review Fraser Health’s scent policy and emphasize that there would be strong enforcement of it. All staff were required to sign a paper copy acknowledging that they had read and understood it: Powell Affidavit, para. 46.
[62] On June 3, 2015, Ms. Powell had a phone call with Ms. Westendorp, Disability Management consultants, an Exposure Prevention Specialist, and an accommodation advisor. The purpose of the call was to review Ms. Powell’s efforts to enforce Fraser Health’s scent policy and response to Ms. Brown’s scent exposures. At the meeting, Ms. Brown noted that a number of staff expressed sensitivities in the work environment to fragrances and cleaning chemicals: Powell Affidavit, Exhibit DD, p. 60. The hope was that the Exposure Prevention Specialist could make further recommendations. Following the meeting, a plan was developed to continue to address Ms. Brown’s scent issues, including an air quality test of Ms. Brown’s workspace: Powell Affidavit, para. 47; Exhibit DD, p. 60.
[63] On June 11, 2015, Ms. Brown reported another scent exposure:
I booked a home visit with the [patient] on June 8, and notified the family of my scent allergies to the perfumes, air-fresheners and the scented candles. I was nearing the end of my assessment, I was preparing to complete the bathroom safety check. The [patient’s] family cleaned the bathroom and used the air-freshener. I didn’t realize it until I could smell it. The smell was very strong, overpowering. I told the family that I wasn’t feeling well from the scent and I ended my visit. I returned to work and informed my team leader: Wheatley Affidavit, Exhibit A, p. 213.
[64] In response to Ms. Brown’s report, Ms. Powell stated:
“[Ms. Brown] advises client of her scent sensitivity prior to visits and client information pamphlets are available to inform clients. These are precautions taken to date for her to make home visits. There have been MULTIPLE actions taken in the office enviro[nment] … [Ms. Brown] has scent sensitivity that to date has been reported only in the office environment. The clients home environment is difficu[lt] to control given the client popu[lat]ion we serve and work place necessary for her to assess her clients: Wheatley Affidavit, Exhibit A, p. 215.
[65] On June 17, 2015, Ms. Brown emailed Ms. Stalker stating: “my symptoms are increasing in severity and are lasting longer than they were in the past. Exposures are leaving me very ill and for long periods of time, impacting my pay, my case load and my personal life”: Jamison Affidavit, Exhibit D, p. 7.
[66] On July 10, 2015, Ms. Brown reported that she detected a scent by the bathroom and down to her office. She stated that she thought it was perfume: Wheatley Affidavit, Exhibit A, p. 116.
[67] On July 28, 2015, Ms. Westendorp made a note that she detected a “strong floral scent” in the hallway area by the bathroom and “HCN” office: Wheatley Affidavit, Exhibit A, p. 116.
[68] On August 17, 2015, Ms. Brown reported that she was exposed to a strong perfume at work. She described her resulting symptoms as nausea, headaches, blurred vision and then migraine: Wheatley Affidavit, Exhibit A, p. 119.
[69] On September 10, 2015, Ms. Brown requested a meeting with Ms. Stalker and her union rep on the basis that her exposure to scents at work was not improving. A union rep replied the same day stating: “Will liaise with the others to arrange a meeting asap”: Wheatley Affidavit, Exhibit A, p. 120.
[70] On September 22, 2015, Ms. Brown received a call at work indicating that her child was injured at school, unconscious, with emergency personnel, and would be transferred to hospital as soon as an ambulance arrived. Ms. Brown told Ms. Westendorp about the call she received, as Ms. Powell was away. Ms. Brown finished a few tasks and then left for the hospital: Brown ATD Response, p. 23.
[71] On September 29, 2015, Disability Management Consultants, Shannon Atkins and Ms. Stalker, met with Ms. Powell, Ms. Westendorp, Ms. Bosch, and an accommodation advisor, in Ms. Brown’s absence. The meeting participants reviewed the steps taken to date to address Ms. Brown’s reported scent exposures. Ms. Powell’s understanding was that a further meeting would be scheduled with Ms. Brown on October 7 to discuss and consider whether any further steps could be taken to address her scent sensitivity: Powell Affidavit, para. 51; Exhibit FF, p. 72.
[72] On October 6, 2015, Ms. Brown sent Ms. Powell two medical notes to support her absence from work. The first medical note dated September 25, 2015, by Dr. Ellestone certified that Ms. Brown “is or has been ill and unable to attend work” from September 23 until September 28, 2015: Powell Affidavit, Exhibit HH, p. 77.
[73] The second medical note dated September 29, 2015, by Dr. Lim stated: “please excuse from work Sept 28 29 th and 30th, October 1 and 2 nd 2015 because of migraine, triggered by scent exposure”: Powell Affidavit, Exhibit HH, p. 78.
[74] The meeting scheduled with Ms. Brown for October 7, 2015, was postponed, and ongoing efforts to address Ms. Brown’s scent sensitivity were put on hold: Powell Affidavit, para. 54: ATD, para. 68.
[75] On October 9, 2015, Ms. Brown asked her union reps about the process to apply for a leave of absence.
C. Ms. Brown’s Leave of Absence and Termination of Employment
[76] There is no dispute that in October 2015, Ms. Brown requested a leave of absence to care for her child, in connection with the child’s September 22, 2015, injury. Based on supporting medical evidence from Ms. Brown, Fraser Health granted her leave of absence. The leave of absence was a “family status” leave and unpaid: Cynthia Bosch Affidavit, paras. 7-8.
[77] On July 7, 2016, Ms. Brown told Ms. Powell that she hoped to return to work by October 2016, but that was dependent on her child’s needs. In August 2016, Ms. Powell retired, and her role was filled by Brad Miller: Powell Affidavit, para. 55.
[78] On July 13, 2016, Ms. Brown emailed a union rep. She expressed concern about working under Mr. Miller “in light of the history with him [at the] Newton [location]. Can the Union assist me with not working in this office in light of bullying and harassment I experienced in Newton and in White Rock .” She also stated: “My [child] is still recovering from [their] injury and this may persist for some time. It is imperative that I am healthy to care for and assist [them]. This time away from a scented environment has been a blessing in disguise as it is what I needed to recover and feel healthy again”: Jamison Affidavit, Exhibit G, p. 15.
[79] In the Fall of 2016, Ms. Brown took part-time distance education courses through the BC Institute of Technology [BCIT]. Ms. Brown says that this course work was supported by her doctor and to assist her with scent-free work options: ATD Response, p. 12.
[80] On November 14, 2016, Ms. Brown emailed Mr. Miller, stating:
… I am addressing my own health needs and am not able to return to my position at [the White Rock office] for reasons related to same. Please let me know what you are in need of in regards to medical documentation and I will provide it to you … The time away from my position at [the] White Rock [office] has reinforced for me the need for a scent free work environment. Unfortunately scent exposures in my work place impacts my employer, my colleagues, my clients, my health and my family. I am moving forward in a direction to obtain a safe and healthy work environment and will be apply[ing] for positions in the near future”: Wheatley Affidavit, Exhibit A, p. 19.
[81] Mr. Miller replied on November 24, 2016, and told Ms. Brown to connect with Ms. Stalker to provide medical documentation to support her absence related to her health concerns: Wheatley Affidavit, Exhibit A, p. 19.
[82] Ms. Brown emailed Ms. Stalker on November 28, 2016, to ask what Fraser Health needed to support her “medical situation”: Wheatley Affidavit, Exhibit A, p. 49. Ms. Stalker replied to Ms. Brown and advised her that she would need to provide medical information to support her change in medical condition. Ms. Stalker attached a medical form to “assist in the process”: Wheatley Affidavit, Exhibit A, p. 49. In an email on December 5, 2016, Ms. Stalker asked Ms. Brown to provide the medical information by December 12, 2016: Wheatley Affidavit, Exhibit A, p. 44.
[83] Ms. Brown responded on December 6, 2016, that she was unable to have an appointment with her doctor prior to December 12, 2016. She said that she would provide the medical documentation once she received it from her doctor and would let Ms. Stalker know “either way” on December 12, 2016: Wheatley Affidavit, Exhibit A, p. 44.
[84] On December 8, 2016, around 3:12pm, Mr. Miller emailed Ms. Brown indicating that if she did not provide medical documentation to support her “continued absence from work” by December 12, she was expected to return to work on December 13, 2016. Mr. Miller also stated in the email that on December 13, they would discuss Ms. Brown’s “performance challenges”: Brad Miller Affidavit, Exhibit D, p. 6.
[85] On December 8, 2016, around 3:58pm, Ms. Brown forwarded Mr. Miller’s email to her union, and asked the union for help with the “ongoing exposure to scent” situation. Mr. Brown further stated:
I’m not returning to my position in White Rock Home Health as they can not provide a safe work environment for me and also related to the harassment and lack of support in place because of their inability to provide coverage to my caseload in my absence related to their inability to provide a scent free work environment: Jamison Affidavit, Exhibit E, p. 10.
[86] On December 12, 2016, Ms. Brown emailed Ms. Stalker, and copied her union. Ms. Brown stated that Fraser Health records would show that she was not afforded a safe, scent free environment at the White Rock office. She attached a medical note from Dr. Lim. Dr. Lim’s note stated that Ms. Brown is under his care, “for which she is not capable of returning to her work at her usual environment. A more detailed note will follow”: Wheatley Affidavit, Exhibit A, p. 38-40.
[87] Ms. Stalker emailed Ms. Brown on the same day stating: “Thanks for making the effort to get in to your doctor within the week. I’ve advised [human resources] that I’ve received your note, and am awaiting further details to support your Work Accommodation request. Once the additional medical is received, we will need to review it to determine next steps”: Wheatley Affidavit, Exhibit A, p. 38. Ms. Stalker then made a note to herself that she spoke briefly with the human resources consultant about this situation and that Ms. Brown was not expected at work on December 13, 2016: Wheatley Affidavit, Exhibit A, p. 38.
[88] On December 22, 2016, Ms. Brown emailed Ms. Stalker stating that she had checked with her doctor about the status of his pending letter, and that as of December 22, it was not yet completed. Ms. Brown further stated that her doctor would contact her once he completed the information requested by Fraser Health, and that Ms. Brown would forward the information immediately: Wheatley Affidavit, Exhibit A, p. 17.
[89] By January 5, 2017, Dr. Lim completed a more detailed medical note for Ms. Brown stating:
Angela has been my patient for [a] number of years for which she has been treated for symptoms after any fragrance exposure, both at work and in any other environment. She has been seen by Allergist, Dr. R Schellenberg who agrees with the diagnosis. There are no blood or skin testing for the disorder and one can only rely on the reporting of symptoms after a direct exposure. Her symptoms have worsened both in intensity and duration after each exposure. As a consequence, I have recommended that she should not return to any work environment where the risk of exposure is high. If that is not possible, she should consider retraining for a different job location where the chance of exposure is extremely low (an example would be the operating room): Wheatley Affidavit, Exhibit A, p. 10.
[90] Ms. Brown provided Dr. Lim’s updated medical letter to Ms. Stalker on Friday, January 6, 2017. In turn Ms. Stalker shared the medical letter with Mr. Miller and Ms. Bosch, but not until Monday, January 9, 2017. On January 5, 2017 – unaware of Dr. Lim’s January 5 letter yet – Mr. Miller, in consultation with his director and Ms. Bosch, decided to terminate Ms. Brown’s employment.
[91] Ms. Brown and her union were advised of the termination, in a letter from Mr. Miller, dated January 5, 2017. The letter stated the basis for the termination as follows: “as of the date of this letter, we have not received any correspondence from you to support your absence … Your failure to provide information to support your absence is deemed employment abandonment. Your employment [at the White Rock Office] has been terminated effective January 5, 2017”: Wheatley Affidavit, Exhibit A, p. 12.
[92] The termination letter was couriered to Ms. Brown, but to the wrong address. She found out about the termination through her union and received the termination letter on January 24, 2017: ATD Response, p. 36.
[93] On January 9, 2017, Ms. Stalker made Mr. Miller and Ms. Bosch aware of Dr. Lim’s updated medical letter. Ms. Stalker indicated that Dr. Lim’s updated letter did not contain new medical information to support Ms. Brown’s continued leave of absence from work: Wheatley Affidavit, Exhibit A, p. 7.
[94] In a letter dated January 13, 2017, Ms. Stalker wrote to Ms. Brown stating that Dr. Lim’s updated medical letter: “does not outline any new medical information related to previous request for accommodation, nor does it provide any further information that would vary to [sic] the current medical recommendations”: Wheatley Affidavit, Exhibit A, p. 6. Ms. Stalker referred Ms. Brown back to the termination letter and encouraged her to discuss the situation with her union.
[95] Ms. Brown’s union grieved Ms. Brown’s termination. On December 14, 2017, an arbitrator ordered Ms. Brown to produce documents related to her attendance at BCIT or other educational institutions; any medical accommodation requests she made to BCIT or other educational institutions, and the steps BCIT took to accommodate her, from September 1, 2016 to December 12, 2017. Specifically, the arbitrator ordered that Ms. Brown provide particulars on why she was medically capable of attending BCIT in this period when she also claimed to be incapable of returning work: Bosch Affidavit, Exhibit A, p. 1-2.
[96] On December 21, 2017, in consultation with Ms. Brown, the union withdrew the grievance: Jamison Affidavit, Exhibit H, p. 16-17.
IV ANALYSIS
[97] Having summarized and considered the background from the parties’ materials, I return to the question of whether Ms. Brown’s complaint has no reasonable prospect of success.
D. Does Ms. Brown have no reasonable prospect of proving discrimination?
[98] Section 27(1)(c) is part of the Tribunal’s gate-keeping function. As part of this gate-keeping function, the Tribunal has discretion to dismiss a complaint, under s. 27(1)(c) if the complaint has no reasonable chance of succeeding at a hearing: Lord v Fraser Health Authority , 2021 BCSC 2176, para. 19. If there is no reasonable prospect of a complaint succeeding after a full hearing of the evidence, then it serves no purpose to proceed with the time and expense of a hearing: Workers’ Compensation Appeal Tribunal v. Hill , 2011 BCCA 49, para. 27.
[99] The Tribunal does not make findings of fact on a dismissal application, as it would at a hearing. Instead, the Tribunal considers the whole of the evidence to decide whether there is no reasonable prospect that a complaint could be proven, after a full hearing of the evidence: Byelkova v Fraser Health Authority, 2021 BCSC 1312, para. 24; Francescutti v. Vancouver (City) , 2017 BCCA 242, para. 52. The Tribunal bases its decision on the materials filed by the parties; not on what evidence might be given at the hearing: University of British Columbia v. Chan, 2013 BCSC 942, para. 77; Conklin v University of British Columbia, 2021 BCSC 1569, para. 32.
[100] The onus is on the applicant to show there is no reasonable prospect a complaint will succeed: Byelkova, para. 27. At this stage, the complainant must show that their evidence is based on more than speculation: Lord, para. 19.
[101] To prove discrimination at a hearing, Ms. Brown would have to prove the three criteria set out in Moore v. BC (Education), 2012 SCC 61, para. 33: that she has a physical disability protected by the Code ; that she was adversely impacted in her employment; and that her physical disability was a factor in those adverse impacts. The Tribunal may dismiss a complaint under s. 27(1)(c) of the Code if a complainant has no reasonable prospect of proving one or more of the discrimination criteria.
[102] Even if a complainant has a reasonable prospect of proving discrimination, the Tribunal may still dismiss their complaint, under s. 27(1)(c), if it is reasonably certain that a respondent will establish a defence at a hearing of the complaint: Purdy v. Douglas College and others , 2016 BCHRT 117, para. 50. If it is reasonably certain that a respondent would prove that their conduct is justified, based on the dismissal application materials, then there is likely no reasonable prospect that the complaint will succeed: Purdy, para. 50.
[103] In this application, the Respondents argue that Ms. Brown has no reasonable prospect of proving discrimination and, in any event, they are reasonably certain to prove that their conduct was justified. I will address each of these arguments in turn.
1. Disability
[104] The Respondents deny that Ms. Brown has a disability in their response to the complaint: para. 23. They appear to maintain this position in their ATD. Therefore, I have considered whether Ms. Brown has a reasonable prospect of proving that she has a disability under the Code . In my view, she does.
[105] The Tribunal has recognized that an allergy or a scent sensitivity may be a disability: Klewchuk v. City of Burnaby (No. 6) , 2022 BCHRT 29, para. 356; Foote v. Essence Pilates and another, 2021 BCHRT 77, paras. 8 and 73-79. I am satisfied that Ms. Brown has a reasonable prospect of proving that she has a scent sensitivity, and that is a disability. Her assertions of a scent sensitivity are not based solely on speculation but on the parties’ materials, including:
· Dr. Lim’s January 27, 2012 letter stating that Ms. Brown “is intolerant to fragrance and develops headaches from the exposure. Therefore, she needs to remove herself from the environment”: Wheatley Affidavit, Exhibit A, p. 173.
· Dr. Schellenberg’s September 17, 2013 Outpatient Clinic Note stating that Ms. Brown has: “Significant reactions to inhaled scented products …”: Wheatley Affidavit, Exhibit A, p. 191-192.
· Dr. Lim’s March 13, 2014 Occupational Fitness Assessment diagnosing Ms. Brown with “inhaled scents hypersensitivity syndrome”: Wheatley Affidavit, Exhibit A, p. 196-198.
· Dr. Lim’s January 5, 2017 letter indicating that Ms. Brown has a diagnosis and disorder related to fragrance exposure: Wheatley Affidavit, Exhibit A, p. 10.
[106] In the circumstances, I am satisfied that Ms. Brown has a reasonable prospect of proving that she has a scent sensitivity, and that the condition is a disability within the meaning of the Code. Next, I address Ms. Brown’s alleged adverse impacts and the Respondents’ argument that she has no reasonable prospect of proving these adverse impacts.
2. Adverse impacts
[107] The adverse impacts alleged by Ms. Brown can be summarized as follows:
· She was repeatedly exposed to scents at the White Rock Office from August 2014 to August 2015.
· The exposures made her repeatedly ill, which meant that she had to use up her “sick bank” and could not keep up with her workload.
· Members of her work team did not take her scent sensitivity and exposures seriously. As a result, colleagues alienated her or treated her with disrespect and/or hostility.
· The Respondents refused to provide appropriate accommodation with respect to the scent exposures, including: appropriate coverage when she was ill, a staggered start time, support to retrain for a different position (i.e. the operating room), or a work from home option.
· Fraser Health would not accommodate her scent sensitivity on her anticipated return to work and terminated her employment instead.
· The scent exposures, the Respondents’ response to the scent exposures, and the termination of her employment resulted in increased physical, emotional and financial stress.
Complaint, p. 7-14; amended complaint, p. 2-6.
[108] The Respondents say that Ms. Brown has no reasonable prospect of proving these adverse impacts because:
· One of the scent exposures – a home health director wearing cologne – was an isolated incident.
· Ms. Brown has not demonstrated that she was adversely impacted by the use of cavi-wipes at the White Rock Office.
· There is no evidence that Ms. Brown made a request for and was denied alternate work hours.
· Ms. Brown did not accept the limited caseload support that Ms. Powell could offer.
· All of the Respondents’ alleged conduct, up to Ms. Brown’s leave of absence, took place as part of the process of reaching an accommodation or within an agreed upon accommodation. An accommodation process or working within an agreed upon accommodation cannot constitute an adverse impact.
· Ms. Brown never asked to return to her employment. Instead, she remained off work actively looking for other jobs. The termination of her employment did not change her status: an unpaid leave. Therefore, there was no adverse impact arising from the termination.
ATD, paras. 115-115.
[109] I will address the Respondents’ arguments on Ms. Brown’s alleged adverse impacts in turn.
[110] The home health director wearing cologne – There is no dispute that on August 8, 2014, a home health director wore cologne held on a patio of a work site. Ms. Brown alleges she was adversely impacted by the scent of the cologne. The Respondents say that it was an isolated incident, and as such does not constitute adverse impact. I do not accept the Respondent’s argument on this point as Ms. Brown alleges that the home health director wearing cologne was part of repeated or ongoing scent exposures at the White Rock office: Complaint, p. 10; Complaint Amendment p. 2. The ATD materials show that from August 2014 to August 2015, Ms. Brown repeatedly reported being exposed to scents, beginning with the home health director’s cologne, and that those scents had an adverse impact on her.
[111] Ms. Brown’s allegation that she was repeatedly exposed to and adversely impacted by scents – beginning with home health director’s cologne – is not based merely on speculation. This allegation is based on her specific, first-hand and contemporaneous reports of scent exposures, and their impacts. In my view, Ms. Brown has a reasonable prosect of proving that her exposure to the scent of cologne had an adverse impact on her, as part of repeated scent exposures at work. Therefore, I am not persuaded by the Respondents’ argument that the cologne exposure should be dismissed as an isolated incident.
[112] The cavi-wipes – The Respondents say that Ms. Brown did not report any personal exposure to cavi-wipes and had no reason to use them or be in close proximity to them. Therefore, the Respondents say that Ms. Brown has no reasonable prospect of proving that she was adversely affected by use of cavi-wipes at the White Rock Office.
[113] Ms. Brown’s allegation with respect to the cavi-wipes is that: she had been impacted by the cavi-wipes’ strong scent and asked Fraser Health to remove the cavi-wipes to prevent further scent-related adverse impacts: Complaint Amendment, p. 2-4. In essence, Ms. Brown alleges that the scent from the cavi-wipes did and would adversely impact her given her scent sensitivity.
[114] In my view, Ms. Brown has a reasonable prospect of proving that the presence of cavi-wipes at the White Rock office adversely impacted her. The ATD materials indicate that the parties could not identify a source for at least some of Ms. Brown’s alleged adverse reactions to scents. Ms. Brown has supplied evidence that on July 22, 2014, she advised Fraser Health that she was “impacted by the strong odor” from the cavi-wipes: ATD Response, p. 20. The ATD materials suggest that Ms. Brown and other employees reported negative reactions to cleaning chemicals at the White Rock office: Wheatley Affidavit, Exhibit A, p. 234; ATD Response, p. 8, 20. Ms. Brown’s evidence is also that she had to access the rooms where the cavi-wipes were stored, in order to clean equipment that she brought into client homes: ATD Response, p. 8.
[115] The Tribunal could find at a hearing that the cavi-wipes posed a risk to Ms. Brown’s health and safety. The Tribunal has recognized health and safety risks as adverse impacts: Mitchell v. Chan, 2024 BCHRT 4, para. 26; Klewchuk, para. 377; Borutski and others v. Crescent Housing Society and another (No. 3) , 2014 BCHRT 124, paras. 319-322. Therefore, I am not persuaded by the Respondents’ argument that Ms. Brown has no reasonable prospect of proving that the cavi-wipes had an adverse impact on her.
[116] Alternate work hours or working from home – Ms. Brown alleges that at a meeting with her employer and union on or about April 27, 2015, she suggested that she have a staggered start time or a work from home option to avoid further scent exposures and loss of productive work time. She says that following this meeting, Ms. Powell called her into her office and informed Ms. Brown that: Fraser Health would not entertain a change of her working hours, or an option for her to work from home, and did not explain why: Complaint Amendment, p. 3-4.
[117] The Respondents say that there is no evidence that Ms. Brown requested alternate work hours or was denied that request: ATD, para. 128. The Respondents acknowledge that Ms. Brown requested to work from home but say that she did not follow the process to make or escalate that request under Fraser Health’s “work from home” policy: ATD, para. 127.
[118] In Ms. Brown’s ATD response she confirms that she asked for alternate hours to avoid “busier times” at work, and that her union was aware of the request. With respect to her request to work from home, Ms. Brown says that when she made the request she was not aware of Fraser Health’s working from home policy, and that Ms. Powell did not direct her to that policy or process to be followed: ATD Response, p. 9.
[119] The parties disagree on whether Ms. Brown: requested and was denied alternate work hours or the option to work from home. These factual disputes are central to an issue in the complaint: whether the Respondents refused to provide Ms. Brown with appropriate accommodations with respect to her reported scent exposures. These factual disputes can only be resolved at a hearing, where the parties’ evidence on this point can be weighed and tested, and the Tribunal can assess credibility, at a hearing:Francescutti, para. 67. Accordingly, I decline to dismiss Ms. Brown’s allegation that the Respondents denied her requests for alternate work hours or the option to work from home.
[120] Ms. Brown’s caseload and coverage – Ms. Brown alleges that the Respondents refused to provide appropriate coverage when she was ill from scent exposures. She says that the lack of coverage increased her workload, which had to be managed by colleagues. She says that as a result of the lack of coverage and workload issues, her colleagues increasingly alienated her and treated her with hostility: Complaint, p. 10; Amendment, p 4.
[121] The Respondents argue that Ms. Powell did attempt to assist Ms. Brown with prioritizing her clients, but Ms. Brown said she did not need help. Further, they say that Ms. Brown had support from other nurses at the White Rock Office to deal with high priority clients. The Respondents also say that Ms. Powell was limited in addressing Ms. Brown’s concerns due to “ongoing staffing issues” at the White Rock Office: ATD, para. 129.
[122] In Ms. Brown’s ATD response, she says that while she initially indicated she did not require assistance, she later told her employer and union that she did need help. She says that Fraser Health arranged for two other colleagues to cover her urgent cases. However, this coverage led to increased stress, tension, and work for those colleagues, which led to one of them treating her with disrespect. Ms. Brown refutes that there were staffing issues at the White Rock office because another colleague had their caseload covered when that colleague was off for a lengthy time related to a surgery. She also says that she did not see any job postings indicating that Fraser Health was hiring to address the case load issues: ATD Response, p. 9.
[123] The parties disagree on whether Ms. Brown requested and was denied appropriate caseload support. This factual dispute is a key aspect of a central issue in the complaint: whether the Respondents were able to and refused to provide Ms. Brown with appropriate caseload support. This factual dispute can only be resolved at a hearing, where the parties’ evidence on this point can be weighed and tested, and the Tribunal can assess credibility, at a hearing:Francescutti, para. 67. Accordingly, I decline to dismiss Ms. Brown’s allegation that the Respondents refused to provide appropriate coverage when she was ill from scent exposures.
[124] Accommodation process – I have also considered the Respondents’ submission that all of the Respondents’ conduct at issue in this complaint up to October 2015 took place as part of a process of reaching an accommodation or working within it once agreed. It was in October 2015 when Ms. Brown took at unrelated leave of absence. The Respondents say that the accommodation process was ongoing and was interrupted only by Ms. Brown’s leave of absence. The Respondents argue that this process of reaching an accommodation or working within it cannot itself constitute an adverse impact. They rely on Petrar v. Thompson Rivers University and another , 2014 BCHRT 193 and Andruski v. Coquitlam School District and another , 2015 BCHRT 74, para. 32.
[125] In my view, Petrar and Andruski do not assist the Respondents on this point In Petrar, the adverse impact alleged was the University’s request for medical information: paras. 2 and 97-98. That is not what Ms. Brown is alleging. She is alleging that she was repeatedly exposed to scents which impacted her: physical health; ability to do her work; sense of safety, dignity, and collegiality at work; and ultimately led to the termination of her employment.
[126] In Andruski, the Tribunal accepted that Ms. Andruski’s inability to work in connection with her scent sensitivity and exposures to scents at work, could amount to an adverse impact based on disability: para. 27. The Tribunal only considered the School District’s accommodation efforts after determining that Ms. Andruski had a reasonable chance of proving discrimination. In other words, Ms. Andruski first had to meet her burden to show discrimination. It was only when she did that the Tribunal considered the School District’s burden to justify any adverse impacts on Ms. Andruski: paras. 28-32.
[127] In this case, Ms. Brown has a reasonable chance of proving she was exposed to scents at work and suffered adverse impacts as a result. To the extent that the Respondents say they took steps to accommodate Ms. Brown, that is an issue for the Respondents to address as part of its burden to justify any impacts on Ms. Brown: Klewchuk, paras. 366-373.
[128] Termination– There is no question that Fraser Health terminated Ms. Brown’s employment on January 5, 2017. Ms. Brown alleges that she was prepared to return to work, after her leave of absence, but required a safe work environment to return to: Complaint, p. 7-8, 12-13. She says that Fraser Health asked her to provide medical documentation to support her accommodation request, and she did: Complaint, p. 8-9; Amendment, p. 4-5. There is no dispute that Ms. Brown’s physician, Dr. Lim, provided the following medical information to Fraser Health on January 6, 2017:
Angela has been my patient for number of years for which she has been treated for symptoms after any fragrance exposure, both at work and in any other environment. She has been seen by Allergist, Dr. R Schellenberg who agrees with the diagnosis. There are no blood or skin testing for the disorder and one can only rely on the reporting of symptoms after a direct exposure. Her symptoms have worsened both in intensity and duration after each exposure. As a consequence, I have recommended that she should not return to any work environment where the risk of exposure is high. If that is not possible, she should consider retraining for a different job location where the chance of exposure is extremely low (an example would be the operating room): Wheatley Affidavit, Exhibit A, p. 10.
[129] The dismissal materials indicate that Fraser Health considered Dr. Lim’s information and decided that it had no bearing on the decision to terminate Ms. Brown’s employment: Miller Affidavit, para. 12; Bosch Affidavit, para. 21.
[130] As a result of the termination, Ms. Brown alleges the following adverse impacts: her relationship with Fraser Health was impacted beyond repair, she had a “wrongful termination” on her record, she had to unexpectedly seek other employment, she lost income, she had to pay for courses which would have been otherwise covered, and the termination contributed to her physical, emotional and financial stress: Complaint, p. 7-8 and 14.
[131] The Respondents argue that Ms. Brown has no reasonable chance of proving that the termination of her employment had an adverse impact on her because:
· What Ms. Brown sought was to extend her unpaid leave of absence. Even if Fraser Health granted the unpaid leave of absence, Ms. Brown “would not have received any benefits, sick day credits, vacation time, pension or seniority” during that leave.
· Ms. Brown did not apply for other internal Fraser Health job postings. Therefore, Fraser Health could not assess whether she was capable of returning to work.
· At some point following her termination, Ms. Brown found another position in another health authority. She was able to transfer her pension and benefits irrespective of her termination.
· Thus, after her employment was terminated, Ms. Brown was in the same position that she would have been while on her leave of absence: unpaid and looking for work.
ATD submission, paras. 146-151.
[132] Ms. Brown disputes that she was seeking to extend her unpaid leave of absence. Instead, she says that she sought a resumption of the accommodation process she requested prior to her family-related leave: ATD Response, p. 12. There is evidence before me to support Ms. Brown’s allegation, including:
· Her November 14, 2016 email to Mr. Miller stating that her time away from the White Rock Office (during her family related leave) reinforced to her the need for a scent free environment. She asked what medical documentation was required to show this: Wheatley Affidavit, Exhibit A, p. 19.
· On November 28, 2016, Ms. Brown emailed Ms. Stalker stating that she was unable to return to her position at the White Rock office, and asked what medical information was required. Ms. Stalker replied on November 30 advising Ms. Brown that she would need to provide medical documentation to re-enter the “Work Accommodation process”: Wheatley Affidavit, Exhibit A, p. 17-18.
· On December 12, 2016, Ms. Brown provided a medical note to Ms. Stalker from Dr. Lim stating that Ms. Brown: “is not capable of returning to her work at her usual environment. A more detailed note will follow”: Wheatley Affidavit, Exhibit A, p. 38-40. Ms. Stalker replied the same day acknowledging that Ms. Brown was making a “Work Accommodation request”: Wheatley Affidavit, Exhibit A, p. 17-18.
[133] In my view, based on the ATD materials, Ms. Brown has a reasonable chance of showing that she: requested a workplace accommodation rather than another unpaid leave; was asking for a move from her position at the White Rock office to a scent free workplace; and was not asking for a leave of absence, but a workplace where she would not be exposed to scents. Given this evidence, I cannot agree with the Respondents that Ms. Brown has no reasonable prospect of proving adverse impacts on the basis that she was in the same position that she would have been after the termination. She has a reasonable prospect of proving that but for the termination, she could have returned to work within Fraser Health in some capacity.
[134] I have also considered Fraser Health’s evidence that Ms. Brown did not apply for other internal Fraser Health job postings, and therefore Fraser Health could not assess whether she was capable of returning to work. In my view, this is not evidence which refutes any adverse impacts on Ms. Brown because her employment was terminated. Rather, a respondent’s knowledge of a complainant’s accommodation request, and any duty to accommodate, is an issue properly considered as part of a respondent’s burden to justify their conduct:Klewchuk, paras. 366-367. I agree with the Tribunal’s reasoning in Klewchuk that: “the respondent’s knowledge has no practical bearing on whether the complainant experienced an adverse impact in their employment related to disability”: para. 369. Therefore, I will not consider Fraser Health’s evidence about its ability to accommodate Ms. Brown, to assess her prospects of proving adverse impacts in the termination.
[135] Finally, the Respondents have not addressed what Ms. Brown alleges are the adverse impacts she experienced because of the termination: her relationship with Fraser Health was impacted beyond repair, she had a wrongful termination on her record, she had to unexpectedly seek other employment, she lost income, she had to pay for courses which would have been otherwise covered through Fraser Health, and the termination contributed to her physical, emotional and financial stress: Complaint, p. 7-8 and 14.
[136] It is well-recognized that a termination of employment can be an adverse impact, as well as leading to the types of impacts claimed by Ms. Brown: loss of income, educational opportunities, and wellbeing. See, for example: De Jonge v. Munden Ventures and another, 2016 BCHRT 101, para. 47; Rogers v. Hotel Rialto and others, 2017 BCHRT 85, para. 23; Mr. S v. Cannae Holdings, 2018 BCHRT 47, para. 63; Christensen v. Caretenders Financial Services Inc. and others , 2023 BCHRT 47, para. 46.
[137] For these reasons, I am not persuaded by the Respondents’ argument that Ms. Brown has no reasonable chance of proving that she was adversely impacted because her employment was terminated. Next, I consider the Respondents arguments that Ms. Brown has no reasonable prospect of proving a connection between her alleged disability and the termination of her employment.
3. Disability as a factor in termination
[138] Ms. Brown alleges that her employment was terminated after she requested that Fraser Health accommodate her disability at work: Complaint, p. 6. Fraser Health argues that Ms. Brown was terminated for non-discriminatory reasons: she failed to comply with requests for information to a support a leave of absence; and abandoned her position: ATD, paras. 152 and 159. Ms. Brown says that she did comply with the requests for information, but that the information was in support of the accommodation she requested: a work environment where her exposure to scents would be low: ATD Response, p. 12-13.
[139] As discussed earlier, there is evidence before me indicating that Ms. Brown was seeking a workplace accommodation rather than a further leave of absence. There is no dispute that Fraser Health confirmed Ms. Brown’s termination after considering Dr. Lim’s medical letters dated December 12, 2016 and January 5, 2016.
[140] In circumstances like this, the timing between Ms. Brown’s alleged accommodation request, due to her scent sensitivity, and the termination can give rise to an inference that her scent sensitivity and the termination are linked: Smith v. Piping Industry Apprenticeship Board and another , 2014 BCHRT 230, para. 23. The uncontroversial timing of Ms. Brown’s termination requires a non-discriminatory reason for the termination: Smith , para. 23. On an application to dismiss, I must be persuaded by Fraser Health that Ms. Brown has no reasonable prospect of proving a connection between her scent sensitivity and the termination, in light of Fraser Health’s non-discriminatory reasons for the termination. Next, I explain why I am not persuaded by Fraser Health’s non-discriminatory explanations, as a basis to dismiss Ms. Brown’s complaint.
[141] First, Fraser Health says that Ms. Brown’s employment was terminated because she failed to comply with requests for information to support a leave of absence. However, there is evidence before me indicating that Ms. Brown did comply with Fraser Health’s requests for information:
· On November 14, 2016, Ms. Brown requested a workplace accommodation and asked her employer what she needed to provide to support that request: Wheatley Affidavit, Exhibit A, p. 16-24.
· On November 30, 2016, Ms. Stalker advised Ms. Brown that she would need to provide “medical documentation” to re-enter the “Work Accommodation process”: Wheatley Affidavit, Exhibit A, p. 49.
· Ms. Brown provided the medical information requested as soon as it became available – namely, Dr. Lim’s letters of December 12, 2016 and January 5, 2016: Wheatley Affidavit, Exhibit A, p. 16-24.
[142] Given this evidence, I am not persuaded that Ms. Brown has no reasonable prospect of proving the termination was discriminatory on the basis that she failed to comply with Fraser Health’s requests for medical information.
[143] Second, the Respondents argue that Ms. Brown’s employment was terminated because she abandoned her position. The Respondents rely on the following evidence:
· Ms. Brown’s email to her union on July 13, 2016, stating: “I am very concerned about working under [Mr. Miller] in light of the history with him [at the] Newton [location]. Can the Union assist me with not working in this office in light of bullying and harassment I experienced in Newton and in White Rock”: Jamison Affidavit, Exhibit G, p. 15.
· Ms. Brown took two “Critical Care” courses in the fall of 2016: Jamison Affidavit, Exhibit I, p. 20.
· Ms. Brown’s email to Mr. Miller on November 14, 2016, stating: “I am moving forward in a direction to obtain a safe and healthy work environment and will be apply[ing] for positions in the near future. I am hopeful I can provide your name as a professional reference”: Wheatley Affidavit, Exhibit A, p. 19.
· Ms. Brown’s email to her Union on December 8, 2016, where she states: “I’m not returning to my position in White Rock Home Health as they can not provide a safe work environment for me and also related to the harassment and lack of support in place because of their inability to provide coverage to my caseload in my absence related to their inability to provide a scent free work environment”: Jamison Affidavit, Exhibit E, p. 10.
· Mr. Miller told Ms. Brown that if she did not provide medical documentation supporting a leave of absence she was expected to return to work. She did not return to work.
[144] In my view, this evidence does not conclusively show that Ms. Brown abandoned her position at Fraser Health. This evidence, viewed in context, could support her allegation that she was seeking a workplace accommodation due to her scent sensitivity, as follows:
· In her July 16, 2016 email to her union, Ms. Brown asks her union to assist her with working at a different office in connection with the scent exposures she reported prior to her leave of absence. If Ms. Brown intended to abandon her position with Fraser Health, it’s not clear to me why she requested assistance from her union.
· With respect to the Critical Care courses, Ms. Brown’s evidence is that she took the courses to help ensure that Fraser Health could place her into a scent-free environment: ATD Response, p. 12.
· In her email to Mr. Miller on November 14, 2016, Ms. Brown stated that she could not return to White Rock position, for health reasons, and asked what medical documentation she needed to provide to Fraser Health, to support a “scent free work environment.” In my view, this email is consistent with a request to Fraser Health for an accommodation based on Ms. Brown’s reported scent sensitivity.
· In her email to her union on December 8, 2016, Ms. Brown expressly asked her union for assistance related to her ongoing exposure to scents at the White Rock Office. She stated that was not returning to her position at the White Rock Office because “they can not provide a safe work environment for me … related to their inability to provide a scent free work environment.” Again, it is not clear to me why Ms. Brown was requesting assistance from her union if she was abandoning her position with Fraser Health.
· Mr. Miller told Ms. Brown that she needed to return to work in the event that she did not provide medical documentation. However, there is no dispute that Ms. Brown did provide medical documentation to Fraser Health, which supported her request for a position in a low scent environment. Fraser Health was aware of this supporting documentation when it terminated Ms. Brown’s employment.
[145] The evidence does not conclusively point to Ms. Brown abandoning her position. While Fraser Health may advance the claim that she abandoned her employment, as a non-discriminatory basis for the termination, Ms. Brown may equally advance the claim that she requested a workplace accommodation due to a disability, and that her employment was terminated instead. If Ms. Brown proves her claim, she may also prove that a disability was a factor in the termination. In other words, Ms. Brown has a reasonable chance of proving that her scent sensitivity was a factor in the termination. I decline to dismiss her complaint on this basis that she abandoned her position with Fraser Health.
Conclusion on Ms. Brown’s prospect of proving discrimination
[146] There is evidence before me which could prove that Ms. Brown has a disability, that she was adversely impacted in her employment, and that her disability was a factor in those adverse impacts. Put another way, based on the evidence before me, Ms. Brown has a reasonable prospect of proving each element of the test to show discrimination. As a result, the Respondents have not persuaded me that there is a basis to dismiss Ms. Brown’s complaint as having no reasonable prospect of success.
[147] As I said earlier, to the extent that the Respondents say they took steps to accommodate Ms. Brown, that is an issue for them to address as part of their burden to justify any impacts on Ms. Brown. I turn next to consider whether the Respondents are reasonably certain to justify any impacts on Ms. Brown.
E. Are the Respondents reasonably certain to justify their conduct?
[148] If a Respondent can justify their conduct, then there is no discrimination in violation of the Code:Klewchuk, para. 401. A respondent seeking to justify their conduct must show that they could not have done anything else reasonable or practical to avoid the negative impact on the complainant, without undue hardship: Moore, para. 49; Klewchuk, para. 401; Meiorin, paras. 38 and 54. As discussed earlier, if it is “reasonably certain” that a respondent will be able to justify their conduct, the Tribunal may dismiss the complaint as having no reasonable prospect of success: Purdy, para. 50.
[149] The Respondents make two arguments in order to justify their conduct and any alleged impacts on Ms. Brown. First, the Respondents argue that they took numerous steps to address Ms. Brown’s concerns and enforce Fraser Health’s scent free policy. They point to the involvement of Fraser Health’s Disability Management Department and human resources, an Exposure Prevention Specialist, and support from the union: ATD, para. 137.
[150] Second, with respect to the termination of Ms. Brown’s employment, the Respondents say that Ms. Brown did not apply for other internal Fraser Health job postings; therefore, it could not assess whether she was capable of returning to work. In essence, Fraser Health argues that it could not accommodate Ms. Brown in another position, because Ms. Brown did not take reasonable steps towards that accommodation.
[151] The crux of the Respondents arguments is that their conduct is justified because they took steps to accommodate Ms. Brown; and Ms. Brown was required to apply for internal postings as part of the accommodation process. I will address the Respondents arguments in turn to assess whether they are reasonably certain to justify their conduct. In other words, even if Ms. Brown proved discrimination, are the Respondents reasonably certain to prove that they accommodated her the point of undue hardship? To make this assessment, I am guided by Hydro-Québec v. Syndicat des employées de techniques professionnelles et de bureau d’Hydro-Québec, section locale 2000 (SCFP-FTQ) , 2008 SCC 43 with respect to an employer’s duty to accommodate. With respect to Ms. Brown’s duties in the accommodation process, I am guided by Central Okanagan School District No. 23 v. Renaud, 1992 CanLII 81 (SCC), [1992] 2 SCR 970.
[152] The purpose of an employer’s duty to accommodate is “to ensure that an employee who is able to work can do so” and that “persons who are otherwise fit to work are not unfairly excluded where working conditions can be adjusted without undue hardship”: Hydro-Québec , para. 14. If an employer can, without undue hardship, offer the employee a modified schedule or duties, or even a staff transfer, the employer must do so to accommodate the employee: Hydro-Québec, para. 17. The employer’s duty to accommodate ends where the employee is no longer able to fulfill the basic obligations associated with the employment relationship for the foreseeable future: Hydro-Québec, para. 17.
[153] An employee’s duties in the accommodation process were addressed in Renaud. An employee seeking an accommodation has a duty to cooperate with their employer’s search for a reasonable accommodation. When an employer proposes a reasonable accommodation, an employee has a duty to cooperate with the implementation of that accommodation: Renaud. [2]
Evidence about the Respondents’ accommodation efforts
[154] In this case the evidence shows that the Respondents took steps to limit and address Ms. Brown’s exposure to scents at the White Rock office. However, assessing the evidence as a whole, I am not persuaded that Fraser Health is reasonably certain to prove that it accommodated Ms. Brown to the point of undue hardship when it terminated her employment. [3] I arrive at this conclusion having situated the evidence about Ms. Brown’s termination in context. I recap that context next.
[155] The evidence is that Ms. Brown is a registered nurse, who began nursing in 1992. She began her employment as a nurse with Fraser Health in January 2008: Wheatley Affidavit, Exhibit A, p. 581. The context is an experienced employee with a long employment tenure at a large entity. In this context, I would expect it be more likely that Fraser Health had options to adjust Ms. Brown’s working conditions, short of terminating her employment. Further, there is evidence that points to Ms. Brown seeking an adjustment to her working conditions, during her leave of absence.
[156] There is no dispute that prior to Ms. Brown’s family-related leave of absence she had ongoing concerns about being exposed to scents at the White Rock Office and raised them with the Respondents. There is contemporaneous evidence from Ms. Brown and her doctors about the impact these exposures had on her. On September 10, 2015, 12 days before her leave of absence, Ms. Brown requested a meeting with Ms. Stalker, and her union reps on the basis that her exposure to scents was not improving: Wheatley Affidavit, Exhibit A, p. 120.
[157] On September 29, 2015, Disability Management consultants, Shannon Atkins and Ms. Stalker, met with Ms. Powell, Ms. Westendorp, Ms. Bosch, and an accommodation advisor in Ms. Brown’s absence. The meeting participants reviewed the steps taken to date to address Ms. Brown’s reported scent exposures. Ms. Powell’s understanding was that a further meeting would be scheduled with Ms. Brown on October 7 to discuss and consider whether any further steps could be taken to address her scent sensitivity: Powell Affidavit, para. 51; Exhibit FF, p. 72.
[158] The evidence about the September 29, 2015 meeting suggests that Fraser Health was open to further accommodations to address Ms. Brown’s scent sensitivity. If no further accommodations were possible, there would have been no point to the October 7 meeting with Ms. Brown to discuss those possibilities. But for Ms. Brown’s unexpected and unrelated leave of absence, those accommodations could have been discussed and considered, such as but not limited to: a modified schedule, duties, or staff transfer for Ms. Brown. Indeed, nearing the end of her leave of absence, there is evidence to indicate that Ms. Brown requested a transfer to another worksite where her risk of scent exposure would be lower. This request was supported by Dr. Lim. One worksite option that Dr. Lim suggested for Ms. Brown was an operating room setting. This evidence suggests that but for her scent sensitivity, Ms. Brown was ready and fit to return to work in 2017.
[159] I acknowledge the evidence before me pointing to the Respondents’ accommodation efforts. However, there is also evidence before me to suggest that other accommodation options were on the table for October 7, 2015, but for Ms. Brown’s leave. The Respondents have not explained or given evidence to show why consideration of further accommodation options – including Ms. Brown’s specific requests – would have resulted in undue hardship.
Evidence about Ms. Brown’s participation in the accommodation process
[160] I have also considered the Respondents’ argument that Ms. Brown did not apply for other internal Fraser Health job postings. I understand the argument to be that Ms. Brown was required to apply for internal postings to enable Fraser Health’s search for a reasonable accommodation. In other words, Fraser Health was prevented from searching for an accommodation for Ms. Brown because she did not apply for internal postings and therefore Fraser Health could not assess whether she was capable of returning to work. I am not persuaded by this argument for two reasons. First, there is evidence before me indicating that Fraser Health could assess Ms. Brown capacity to return to work without Ms. Brown applying for internal postings. Second, there is evidence indicating that Ms. Brown otherwise cooperated with the accommodation process.
[161] With respect to Ms. Brown’s capacity, there is evidence before me that:
· She told Fraser Health she was capable of returning to work but required an accommodation of her scent sensitivity.
· She provided Fraser Health with medical information to support the accommodation.
· She provided this information because Ms. Stalker told her by email that the medical information would support her “Work Accommodation request.”
· Ms. Stalker told Ms. Brown that once medical information was received, “we will need to review it to determine next steps”: Wheatley Affidavit, Exhibit A, p. 38.
[162] Ms. Stalker’s email to Ms. Brown suggests that once Ms. Brown provided the medical information, Fraser Health would determine next steps. There is no indication in the evidence that Fraser Health required Ms. Brown to take further steps, such as apply for internal postings. On the evidence, I am not persuaded that Fraser Health is reasonably certain to prove that it could not accommodate Ms. Brown because she did not apply for internal positions.
Conclusion on the Respondents’ certainty of justifying their conduct
[163] The Respondents are not reasonably certain to prove that they accommodated Ms. Brown to the point of undue hardship. There is not enough evidence for me to conclude that Fraser Health required Ms. Brown to apply for internal posting as part of its accommodation efforts. Further, there is not enough evidence for me to conclude that Fraser Health exhausted its accommodation efforts short of terminating Ms. Brown’s employment. As a result, I decline to dismiss Ms. Brown’s complaint, under s. 27(1)(c) of the Code, on this basis.
F. Should the complaint against Susan Powell be dismissed?
[164] The Respondents also apply to dismiss the complaint against the individual respondent, Susan Powell, under s. 27(1)(d)(ii) of the Code. For the reasons that follow I allow the Respondents’ s. 27(1)(d)(ii) application. Accordingly, the complaint against Ms. Powell is dismissed.
[165] The Respondents have correctly identified the factors the Tribunal considers to decide if a complaint against an individual respondent should be dismissed. I set out those factors next and explain why those factors support dismissing the complaint against Ms. Powell.
Factors
[166] The Tribunal considers the following factors to determine whether it would further the purpose of the Codeto proceed against individual respondents:
(1) whether the complaint names a corporate or institutional employer as a respondent and that respondent has the capacity to fulfill any remedies that the Tribunal might order;
(2) whether the institutional respondent has acknowledged the acts and omissions of the individual as its own and has irrevocably acknowledged its responsibility to satisfy any remedial orders which the Tribunal might make in respect of that individual’s conduct;
(3) the nature of the conduct alleged against the individual, including whether:
a. their conduct took place within the regular course of their employment;
b. the person is alleged to have been the directive mind behind the discrimination or to have substantially influenced the course of action taken; and
c. the conduct alleged against the individual has a measure of individual culpability, such as an allegation of discriminatory harassment.
Daley v. British Columbia (Ministry of Health), 2006 BCHRT 341, paras. 60-62.
Applying the Factors to the Complaint
[167] Ms. Brown has named an institutional respondent in her complaint: her employer, Fraser Health. Fraser Health has indicated that it has the capacity to fulfil any remedies that the Tribunal might order: Bosch Affidavit, paras. 53-54. This weighs in favour of dismissing the complaint against Ms. Powell.
[168] Fraser Health acknowledges the acts and omissions of Ms. Powell as its own and has irrevocably acknowledged its responsibility to satisfy any remedial orders which the Tribunal might make in respect of Ms. Powell’s conduct: Bosch Affidavit, paras. 51-54. This weighs in favour of dismissing the complaint against Ms. Powell.
[169] The conduct alleged against Ms. Powell occurred within the course of her employment: Bosch Affidavit, paras. 48-49. This weighs in favour of dismissing the complaint against Ms. Powell.
[170] The evidence indicates that Ms. Powell was not the directing mind behind the alleged discrimination, and she did not substantially influence the course of action taken. While Ms. Powell participated in the accommodation process, she relied on other expertise to assess the course taken. Ultimate decision-making about employee accommodation rested with others in Fraser Health, not Ms. Powell: Bosch Affidavit, para. 50. This weighs in favour of dismissing the complaint against Ms. Powell.
[171] This is a case about whether Fraser Health and Ms. Powell went far enough to accommodate Ms. Brown’s scent sensitivity short of terminating her employment. It is not a case where Ms. Powell is alleged to have engaged in conduct such as discriminatory harassment. She was not the directing mind in the accommodation process. By the time Ms. Brown was ready to return to work and re-visiting accommodation options, Ms. Powell had been retired for months. In these circumstances, Ms. Powell bears limited individual culpability. This weighs in favour of dismissing the complaint against her.
[172] For these reasons, I agree with the Respondents, that all of the “Daley” factors weigh in favour of dismissing the complaint against Ms. Powell under s. 27(1)(d)(ii) of the Code.
V ORDERS
[173] I deny the Respondents’ application to dismiss Ms. Brown’s complaint based on s. 27(1)(c) of the Code.
[174] I allow the Respondents’ application to dismiss Ms. Brown’s complaint against Susan Powell based on s. 27(1)(d)(ii) of the Code .
Amber Prince
Tribunal Member
[1] Email exchanges between Ms. Brown and union reps were disclosed by Ms. Brown to the Respondents as part of the Tribunal’s disclosure process.
[2] There are no paragraph numbers in Renaud, consistent with cases of that time period.
[3] This is not a case like Hydro-Quebec , where the employee was absent from work due to illness and the doctors were not optimistic about the possibility of improved attendance. Nonetheless, I have assessed the Respondents’ accommodation efforts on a global basis: Hydro-Quebec, para. 21.