Beaudette v. Civeo Corporation and another, 2024 BCHRT 263
Date Issued: September 13, 2024
File(s): CS-005011
Indexed as: Beaudette v. Civeo Corporation and another, 2024 BCHRT 263
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:
Lorena Beaudette
COMPLAINANT
AND:
Civeo Corporation and Ashley Hinton
RESPONDENT
REASONS FOR DECISION
APPLICATION TO DISMISS A COMPLAINT
Section 27(1)(c) and 27(1)(d)(ii)
Tribunal Member: Ijeamaka Anika
On their own behalf: Lorena Beaudette
Counsel for the Respondent: Peter A. Gall K.C.
I INTRODUCTION
[1] Lorena Beaudette responded to Civeo Corporation’s invitation to community artisans to participate as a vendor in an artisan market event organized at Civeo’s Lodge. Ashley Hinton was the Civeo employee responsible for coordinating the artisan market event. I refer to Civeo and Ms. Hinton as the Respondents. Ms. Hinton told Ms. Beaudette she was welcome to participate in the event.
[2] At the time of the event, Civeo had a mandatory mask-wearing policy in response to the COVID-19 pandemic. Ms. Beaudette says she has a disability-related barrier to wearing a face mask and the Respondents refused to make an exception for her. Her complaint alleges this was discrimination against her on the grounds of disability, in the area of services, contrary to s. 8 of the Human Rights Code.
[3] The Respondents deny discriminating and apply to dismiss the complaint on two grounds. First, they argue under s. 27(1)(c) that the complaint has no reasonable prospect of success because Ms. Beaudette has not disclosed a disability that prevented her from complying with the mandatory mask policy, the event was not a service customarily available to the public, and they are reasonably certain to prove at a hearing that their actions were justified because they could not safely accommodate Ms. Beaudette without suffering undue hardship. Second, they argue that the complaint should be dismissed against the individual respondent, Ms. Hinton, under s. 27(1)(d)(ii) on the basis that proceeding against Ms. Hinton would not further the purposes of the Code.
[4] To make this decision, I have considered all the information filed by the parties. In these reasons, I only refer to what is necessary to explain my decision.
[5] For the following reasons, I allow the complaint to proceed to a hearing in part. The application to dismiss the complaint under s. 27(1)(c) is denied. I dismiss the complaint against Ms. Hinton under s. 27(1)(d)(ii).
II BACKGROUND
[6] Civeo is a workforce accommodation provider that operates lodges across Canada, including a lodge in Kitimat [the Lodge]. At the Lodge, Civeo provides accommodation for about 400-500 workers from all over Canada and beyond.
[7] In August 2021, the Respondents planned a market event for guests of the Lodge to buy products from a selection of vendors from the Kitimat community. Ms. Hinton invited vendors to apply for a stall at the event by posting an announcement on the Kitimat Chamber of Commerce website and through invitations passed on by word of mouth. Interested artisans contacted Ms. Hinton to indicate their interest in participating in the event and to apply for a stall.
[8] Ms. Beaudette emailed Ms. Hinton to request a stall at the event to sell her products, and Ms. Hinton replied to Ms. Beaudette that she was welcome to participate. She informed Ms. Beaudette of the mandatory mask requirement stating that all attendees to follow its COVID-19 policy and restrictions, including mandatory masking throughout its property. Ms. Hinton informed Ms. Beaudette that there were no exemptions to the masking requirement.
[9] During the email exchange, Ms. Beaudette informed Ms. Hinton that she was exempt from masking due to “a health condition or physical or mental impairment.” She provided Ms. Hinton with links to the provincial government webpage on human rights and to the BC Office of the Human Rights Commissioner’s page titled “Guidelines for people unable to wear a mask as required in British Columbia.”
[10] Ms. Hinton informed Ms. Beaudette that the Respondents were “unable to budge on the requirement of wearing a mask or face covering while on Civeo property.” Ms. Hinton then told Ms. Beaudette that she could return to Civeo’s events when COVID-19 restrictions were no longer necessary.
[11] The Respondents say they conducted the event indoors in the front lobby and an adjacent corridor of the Lodge. The event was only open to Lodge guests and a small selection of vendors. The Respondents say they only allowed up to 10 vendors at the event.
[12] Ms. Beaudette did not participate in the event.
III DECISION
A. Does Ms. Beaudette’s complaint have a reasonable prospect of success?
[13] I now turn to the Respondents’ application to dismiss the complaint on the basis that it has no reasonable prospect of success: Code, s. 27(1)(c).
[14] Section 27(1)(c) is part of the Tribunal’s gate-keeping function. It allows the Tribunal to remove complaints which do not warrant the time and expense of a hearing.
[15] The Tribunal does not make findings of fact under s. 27(1)(c). Instead, the Tribunal looks at the evidence to decide whether “there is no reasonable prospect that findings of fact that would support the complaint could be made on a balance of probabilities after a full hearing of the evidence”: Berezoutskaia v. British Columbia (Human Rights Tribunal),2006 BCCA 95 at para. 22, leave to appeal ref’d [2006] SCCA No. 171. The Tribunal must base its decision on the materials filed by the parties, and not on speculation about what evidence may be filed at the hearing: University of British Columbia v. Chan,2013 BCSC 942 at para. 77.
[16] A dismissal application differs from a hearing: Lord v. Fraser Health Authority, 2021 BCSC 2176 at para. 20; SEPQA v. Canadian Human Rights Commission,1989 CanLII 44 (SCC), [1989] 2 S.C.R. 879 at 899. The threshold to advance a complaint to a hearing is low. In a dismissal application, a complainant does not have to prove their complaint or show the Tribunal all the evidence they may introduce at a hearing. They only have to show that the evidence takes their complaint out of the realm of conjecture: Workers’ Compensation Appeal Tribunal v. Hill,2011 BCCA 49 at para. 27.
[17] To prove her complaint at a hearing, Ms. Beaudette will have to prove (1) that she has a mental and physical disability, (2) she was adversely impacted in services, and (3) that her protected characteristic was a factor in the adverse impact: Moore v. British Columbia (Education), 2012 SCC 61 at para. 33. If Ms. Beaudette succeeds in proving her case, the burden then shifts to the Respondents to justify the adverse impact. They can do so by proving they had a bona fidereasonable justification for their conduct. If the adverse impact is justified, there is no discrimination.
B. Has Ms. Beaudette taken her disability out of the realm of conjecture?
[18] On the first element of the Mooretest, the Respondents dispute that Ms. Beaudette could prove she has physical and mental disabilities within the meaning of the Code. They say Ms. Beaudette did not provide them with any evidence of her disability at the time of the event.
[19] Whether a complainant has a disability under the Code depends on the facts and circumstances of the case: Young v. Vancouver Coastal Health Authority and others , 2018 BCHRT 27 at para. 100. Although the Code does not define “disability,” it has been interpreted by the Tribunal to mean a “physiological state that is involuntary, has some degree of permanence, and impairs the person’s ability, in some measure, to carry out the normal functions of life”: Rael v. Cartwright Jewelers and another, 2021 BCHRT 106 at para. 13, citing Boyce v. New Westminster (City), 1994 CanLII 18445 at para. 50.
[20] Ms. Beaudette describes her disability as Pulmonary Stenosis and Syncope. As evidence of her disability, Ms. Beaudette has put before the Tribunal two medical notes from her medical providers. The first note is dated September 29, 2021, and was written by a chiropractor. It states that Ms. Beaudette “is unable to tolerate wearing a face covering (masks, etc.) due to an underlying medical condition. Please accept this letter as her notice of exemption.” The second medical note, dated January 26, 2023, was written by Ms. Beaudette’s family doctor. It states that Ms. Beaudette “has been diagnosed with Pulmonary Stenosis and Syncope by [doctors] in 2006.”
[21] The Respondents argues that Ms. Beaudette’s medical notes are insufficient to establish a disability.
[22] I am not persuaded by the Respondents’ arguments here. Ms. Beaudette provides the Tribunal with evidence concerning her disability. Although the second medical note is lacking in detail, it states Ms. Beaudette’s disability – Pulmonary Stenosis and Syncope. On the low threshold required at this stage, Ms. Beaudette has taken her assertion that she has a disability out of the realm of speculation and conjecture.
C. Did Ms. Beaudette experience any adverse impact in services?
[23] Next, Ms. Beaudette says she experienced an adverse impact in services that triggered the protection of the Code.
[24] I must deal with two issues regarding this element. First, whether there is no reasonable prospect Ms. Beaudette could prove the event constituted a service customarily available to the public within the meaning of s. 8 of the Code. Second, whether there is no reasonable prospect Ms. Beaudette could prove she was adversely affected.
[25] Section 8 of the Code prohibits discrimination regarding accommodations, services, and facilities customarily available to the public. The Tribunal must first identify the service in question and then determine whether that service gives rise to a public relationship between the service provider and the service user: Phillips v. BC Ministry of the Attorney General , 2019 BCHRT 76, para. 12, citing Gould v. Yukon Order of Pioneers , [1996] 1 SCR 571, para. 58.
[26] The alleged service is the Respondents’ hosting a market at which artisans could sell their goods to Lodge guests.
[27] The Respondents say s. 8 is not engaged because they did not provide a service to vendors. They argue that the service was for guests at their private Lodge to shop for local artisan goods at a private market event. They say that the relationship was private because vendors were selected not as members of the public but as suitable local vendors with goods to sell.
[28] Ms. Beaudette argues that the event was a service customarily available to the public because it was publicly advertised to artisan vendors who applied to attend. She also says that the Respondents did not pay for the vendors to be there or for the goods to be given out for free. Instead, they gave vendors an opportunity to sell their goods to Lodge guests, which is a service to both vendors and guests.
[29] For the reasons that follow, I am not persuaded that Ms. Beaudette has no reasonable prospect of proving that the Respondents provided a service customarily available to the public—in this instance, local artisans in the Kitimat community—when they organized and hosted the market. The Supreme Court of Canada has stated that private institutions are not immune from the Code. “Words like public and private have no self-evident meaning and are merely the beginning of the inquiry”: Stefanovic v. Vancouver College of Dental Hygiene Inc. and another , 2024 BCHRT 47, at para. 27, citing University of British Columbia v. Berg, [1993] 2 SCR 353 at paras. 9 and 54-58. Therefore, the Tribunal must engage in a purposive interpretation to identify the community or subset of a community of persons to whom the services in question are ordinarily available: Stefanovic,at para. 27citing H.M.T.Q. v. Crockford, 2005 BCSC 663 at para. 69.
[30] The “public” for a service may be a subset of the community eligible for the service. The Supreme Court of Canada in Bergsaid that “every service has its own public, and once that “public” has been defined through the use of eligibility criteria, the Actprohibits discrimination within that public”: at para. 55. The Supreme Court also said in Bergthat “the eligibility criteria, so long as they are non-discriminatory, are a necessary part of most services, in that they ensure that the service reaches only its intended beneficiaries. Some services or facilities will create public relationships between the institution and the users, while others may establish only private relationships”: para. 57.
[31] On the evidence before me, I am not persuaded by the Respondents’ argument that Ms. Beaudette has no reasonable prospect of proving that the Respondent provided a service customarily available to the public. At the hearing, the Tribunal could find that the Respondents advertised the event to a subset of the public: local artisans in the Kitimat community who met the Respondents’ selection criteria for becoming a vendor at the event. The Respondents advertised the event on the Kitimat Chamber of Commerce website and through word of mouth. Civeo also provided the space and facilities for the market event, and it was coordinated by its representative on its behalf. The Respondents have not provided submissions concerning how they selected vendors, and it is unclear on the evidence before me.
[32] Second, regarding the alleged adverse impacts, the Respondents argue that because the event was not a service customarily available to the public, Ms. Beaudette was not adversely impacted in services.
[33] I am not persuaded by the Respondents’ argument. Above, I found that Ms. Beaudette has a reasonable prospect of proving that the Respondents were providing a service customarily available to the public when they hosted the event. Here, I find Ms. Beaudette has a reasonable prospect of proving at a hearing that she experienced adverse impact on the basis that the Respondents denied her the ability to participate in the event. In addition, Ms. Beaudette says that because she was unable to participate in the event, she lost business income, new clients, and the opportunity to grow her business. She also says she was accepted to participate in the event and then uninvited, which left her depressed, made her work less, and made her feel less human than others
[34] On the low threshold required at this stage, I am persuaded that Ms. Beaudette has taken this element of the Mooretest out of the realm of conjecture, and at a hearing, the Tribunal could find that – at the very least – the denial of access to service constituted an adverse impact. On the evidence of both parties, Ms. Hinton informed Ms. Beaudette that she could not participate in the event without wearing a mask and told her to return in the future when mandatory masking rules were more relaxed. Further, at a hearing, a Tribunal member could also find that the loss of business revenue and the opportunity to gain new clients constituted an adverse impact.
D. Has Ms. Beaudette taken nexus out of the realm of conjecture?
[35] Regarding the third element of the Moore test, I am satisfied that Ms. Beaudette’s allegation that she was denied a service because of a disability that impacts mask-wearing has been taken out of the realm of conjecture.
[36] Ms. Beaudette alleges that she experienced adverse impact connected to her disability because the disability prevented her from wearing a mask and complying with Civeo’s mandatory mask policy. In addition to Ms. Beaudette’s medical evidence, she describes how masks impact her as follows:
Wearing of a mask makes me feel claustrophobic which then triggers me to breath [sic] irregularly giving me the sensation as if I cannot breathe. Which then spikes my anxiety and triggers a stress response which causes me to faint. When this occurs my heartbeat changes and sometimes gives me sharp pains in my chest. With my pulmonary stenosis the narrowing of my valve in my third chamber of my heart places it under a lot of stress. Which then further triggers more fear, pain, and stress in my body which them [sic] triggers syncope. When I faint I temporarily jerk and flop around as if I’m having a seizure or epilepsy. I have had this condition since I was young and it was not until 2006 when they finally figure [sic] out what it was after many tests.
[37] The Respondents argue that none of Ms. Beaudette’s medical records before the Tribunal takes her disability-related need not to wear a mask out of the realm of conjecture. They argue that first note was written by a chiropractor rather than a medical doctor and provides no reference to a disability or the basis upon which Ms. Beaudette is unable to comply with the masking requirement. They argue further that Ms. Beaudette has not provided any medical documentation to establish that she suffers from anxiety or claustrophobia as alleged in her response to their dismissal application.
[38] In this case, there is no dispute that Ms. Beaudette informed the Respondents that she had a disability-related barrier to wearing a mask. Ms. Beaudette does not dispute the Respondents’ argument that the author of the first note is a chiropractor. However, she says the author was her healthcare provider, had access to her medical records, and knew her medical condition.
[39] I accept the Respondents’ arguments concerning the lack of detail in Ms. Beaudette’s medical notes. However, I find that at the low threshold required at this stage of the proceedings, Ms. Beaudette’s own evidence of how wearing masks impact her, taken with the medical notes, provide a connection between her disabilities and mask-wearing and bring her claim of a mask-related disability out of the realm of conjecture. Regarding the value of the chiropractor’s note as evidence of Ms. Beaudette’s disability, above I stated that the second medical note has taken Ms. Beaudette’s claim of disability out of the realm of conjecture on the low threshold required at this stage. However, I also note that at the hearing, the chiropractor’s note could support Ms. Beaudette’s evidence of her disability. Further, Ms. Beaudette also says the chiropractor was her healthcare provider, had access to her medical records, and knew her medical condition.
[40] For the preceding reasons, I do not find there is no reasonable prospect Ms. Beaudette would prove her case at a hearing. That said, at a hearing, Ms. Beaudette will have to prove all three elements of her case on a balance of probabilities, including her allegation that her disabilities interfered with or prevented her from wearing a mask: McLintock v. Starbucks Coffee Company and another, 2023 BCHRT 200 at para. 20. This Tribunal has cautioned that a “medical exemption” from mask-wearing may not be enough to prove a discrimination complaint: Dier v. Trail Bay Home Hardware and another,2023 BCHRT 229 at para. 19.
[41] The burden now shifts to the Respondents to show that it is reasonably certain that they would establish a defence at the hearing: Purdy v. Douglas College and Others, 2016 BCHRT 117 at para. 50.
E. Are the Respondents reasonably certain to prove they discharged their obligation to accommodate Ms. Beaudette?
[42] To justify dismissing Ms. Beaudette’s complaint, the Respondents would have to prove that (1) Civeo adopted mandatory masking for a purpose rationally connected to operating the Lodge, including the market, and organizing events for everyone at the Lodge; (2) Civeo adopted the COVID-19 Protocols in an honest and good faith belief that it was necessary to the fulfillment of that legitimate purpose; and (3) the COVID-19 Protocols were reasonably necessary to the accomplishment of that legitimate purpose. This third element encompasses the Respondents’ duty to accommodate Ms. Beaudette to the point short of undue hardship: British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights) 3 SCR 868 at para. 20 [Grismer].
[43] The first two elements of Grismer are not at issue on this application and Ms. Beaudette does not dispute them. Therefore, I do not address them here but turn to what is disputed: whether it is reasonably certain that the Respondents could prove they accommodated Ms. Beaudette to the point of undue hardship. What constitutes a reasonable accommodation short of undue hardship is fact-specific and will turn on the particular circumstances of each case: Central Okanagan School District No. 23 v. Renaud , 1992 SCR 970. On an application to dismiss under s. 27(1)(c), the Tribunal will be alert to shortfalls in the evidence regarding relevant considerations and situations where the evidence requires testing through cross-examination: Purdy at para. 63.
[44] For the reasons below, I am not satisfied that the Respondents are reasonably certain to prove at a hearing that they reasonably accommodated Ms. Beaudette.
[45] The Respondents argue that there was no way of accommodating Ms. Beaudette without incurring undue hardship. The Respondents say there was a heightened risk of COVID-19 transmission among Lodge guests and in the wider community. The Respondents say this was due in part to guests at the Lodge frequently traveling in and out of communities across the province and regularly visiting with workers from other lodges and the community. The Respondents argue that were there to be a COVID-19 outbreak at the Lodge, there was a real risk that guests could transmit the virus not just within the Kitimat community but to other communities across the Province. They say that for this reason, Ms. Beaudette’s request to attend the event without masking could expose the community and the rest of the Province to an unacceptable amount of risk. They say they offered Ms. Beaudette the opportunity to return to future events once masking became unnecessary.
[46] As the Supreme Court stated in Grismer,“the defendant always bears the burden of demonstrating that the standard incorporates every possible accommodation to the point of undue hardship”: Grismerat para. 32. By this standard, human rights law does not require the Respondents to provide Ms. Beaudette with her preferred accommodation options but a reasonable one.
[47] I am unable to determine whether the Respondents are reasonably certain to prove they would have incurred undue hardship by accommodating Ms. Beaudette.
[48] On the evidence before me, the Respondents did not provide Ms. Beaudette with any accommodation options. The email communication between Ms. Beaudette and Ms. Hinton, and the Respondents’ arguments before the Tribunal, do not demonstrate how any accommodation would create a safety risk amounting to undue hardship. To determine whether the Respondents are reasonably certain to prove undue hardship, the Tribunal would require more than speculation or assumptions regarding COVID-19 transmissions. For instance, the Respondents have not provided evidence regarding whether it considered any public health recommendations regarding social distancing and if or why it was unable to implement those measures. As I stated above, the Tribunal must base its decision on the materials filed by the parties, and not on speculation about what evidence may be filed at the hearing: Chan at para. 77.
[49] The Respondents also say that in any event, Ms. Beaudette did not provide them with any medical information to support her alleged disability requiring accommodation and what such accommodation would involve.
[50] I am unable to accept the Respondents’ argument. There is no doubt that complainants have a duty to cooperate in the accommodation process and that can include providing medical information. However, the difficulty I have with the Respondent’s argument is that when Ms. Beaudette informed Ms. Hinton that she had a disability that prevented her from wearing a mask, the Respondents, on the evidence before me, did not request Ms. Beaudette to provide any medical information regarding her disability. Beyond informing Ms. Beaudette that she could participate in future events when masks were no longer required, there is no evidence before me that the Respondents took any steps to accommodate Ms. Beaudette. Under human rights law, a service provider does not discriminate if they offer reasonable accommodation and as I stated above, what is reasonable will depend on the circumstances: Renaud at paras. 994‐995. There is no evidence before me that suggests Ms. Hinton, or anyone, asked Ms. Beaudette for the information they now say she failed to provide. Instead, Ms. Hinton said the Respondents could not budge on the mandatory mask requirement. If respondents need information about a complainant’s disability or attendant limitations and restrictions, they have a duty to inquire: Gardiner v. Ministry of Attorney General , 2003 BCHRT 41 at para. 162. There is no evidence before me that suggests the Respondents inquired and, therefore, I cannot find that they are reasonably certain to prove Ms. Beaudette failed to cooperate with the accommodation process.
[51] Ms. Beaudette suggests possible accommodation options which, she says, would not have caused the Respondents undue hardship: providing a negative COVID-19 test; installing plexiglass around her booth as a barrier between herself and others, and setting up her booth before other vendors arrived.
[52] In their reply to Ms. Beaudette’s arguments, the Respondents do not explain if and how the accommodation options suggested by Ms. Beaudette would have caused them undue hardship. The event information such as the venue or number of individuals attending the event are unclear on the evidence before me. The Respondents’ say that the event was indoors and there would be a limited number of vendors due to COVID-19 restrictions. At the hearing, a Tribunal member may find that a limited number of vendors admitted to participate at the event suggests the event would not be so crowded, reducing the risk of transmission. However, the Respondents have not provided any evidence concerning how many people were expected at the event and why Ms. Beaudette’s proposed accommodations would have caused undue hardship.
[53] On the whole of the materials before me, the Respondents
have not persuaded me that they are reasonably certain to prove that they
met their duty to accommodate Ms. Beaudette to the point short of undue
hardship.
[54] I deny the application to dismiss under s. 27(1)(c).
F. Does proceeding with the complaint against the individual respondent not further the purposes of the Code?
[55] Section 27(1)(d)(ii) of the Codegrants the Tribunal discretion to dismiss all or part of a complaint if proceeding with it would not further the purposes of the Code. The purposes of the Code are set out in s. 3. They include general purposes that advance the broad public policy of fostering a society free of discriminatory barriers, as well as the specific purpose of providing a means of redress for people who have been victims of discrimination. Since the aim of human rights legislation is remedial, these purposes must be read harmoniously with s. 37 of the Code, which sets out the remedies available where discrimination occurs: Carter v. Travelex Canada Ltd., 2009 BCCA 180 at paras. 36-37.
[56] There are strong policy reasons that favour complaints against individual respondents. As the Supreme Court of Canada has acknowledged, “the aspirational purposes of the Code require that individual perpetrators of discrimination be held accountable for their actions”: British Columbia Human Rights Tribunal v. Schrenk, 2017 SCC 62at para. 56. This is especially true for allegations of discrimination with a high degree of personal culpability, like sexual or racial harassment: Daley v. British Columbia (Ministry of Health), 2006 BCHRT 341 at para. 53.
[57] On the other hand, naming individual respondents can complicate and delay the resolution of complaints, exacerbate feelings of personal animosity, and cause needless personal distress to individuals who are accused of discrimination: Daley, para. 54 . Because employers and institutional respondents are liable for the acts of their agents, they will be responsible for any remedy ordered by the Tribunal: Code, s. 44(2); Robichaud v. Canada, [1987] 2 SCR 84. In those situations, the remedial aims of the Codemay be most fairly and efficiently fulfilled without holding individuals liable.
[58] The Tribunal balances all these considerations to decide whether the purposes of the Code are best served by having a complaint proceed against individuals as well as an institutional respondent, or against the institutional respondent only. It has identified the following factors as relevant:
a. whether the complaint names an institutional employer as a respondent and that respondent has the capacity to fulfill any remedies that the Tribunal might order;
b. 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; and
c. the nature of the conduct alleged against the individual, including whether:
d. their conduct took place within the regular course of their employment;
e. the person is alleged to have been the directing mind behind the discrimination or to have substantially influenced the course of action taken and
f. the conduct alleged against the individual has a measure of individual culpability, such as an allegation of discriminatory harassment.
Daleyat paras. 60-62.
[59] I will address these factors in turn.
[60] Civeo submits, and I accept, that it can fulfill any remedies the Tribunal might order against Ms. Hinton. It also submits, and I accept, that as the institutional respondent and Ms. Hinton’s employer, they will satisfy any remedial order the Tribunal might make concerning Ms. Hinton. Therefore, Civeo adopts Ms. Hinton’s acts and omissions as its own.
[61] That leaves the issue of whether the nature of the conduct alleged against Ms. Hinton is such that it furthers the purposes of the Code to proceed against her directly. In my view, it is not.
[62] As I understand Ms. Beaudette’s argument, Ms. Hinton has a measure of individual culpability because, as an individual, she ought to know the difference between right and wrong and should have known better than to discriminate based on a protected characteristic rather than simply following orders.
[63] While I appreciate Ms. Beaudette’s sentiments, the Tribunal’s approach to individual respondents is, generally speaking, to dismiss the complaint against them personally where it is clear on the evidence that they were acting in their official capacity. The evidence before me supports Civeo’s assertion that Ms. Hinton was acting in their capacity as the Recreation Coordinator and Community Outreach Manager for Civeo. In that capacity, Ms. Hinton planned and organized events for guests at the Lodge and enforced Civeo’s masking requirement when selecting local vendors. There is no evidence before me that Ms. Hinton was the directing mind behind the masking requirement. However, enforcing the masking policy was part of Ms. Hinton’s job. In my view, nothing in the nature of their conduct (unlike, for example, cases of sexual harassment) is capable of rising to the level of personal culpability that weighs in favour of dismissing the Respondent’s application under s. 27(1)(d)(ii).
[64] On the other hand, continuing to allow the complaint to proceed against Ms. Hinton could complicate the resolution of the complaint and exacerbate feelings of personal animosity. I appreciate that Ms. Beaudette says Ms. Hinton ought to know better, and that Ms. Beaudette provided her with provincial information regarding exemptions to mandatory masking. However, if the Respondents’ conduct did indeed violate the Code, a decision and remedy issued against Civeo can address this. The disadvantages outweigh any purpose served by proceeding against Ms. Hinton.
[65] In these circumstances, the Code‘s purposes are served by dismissing the complaint against Ms. Hinton and proceeding against Civeo. I grant the application to dismiss the complaint against Ms. Hinton under s. 27(1)(d)(ii).
IV CONCLUSION
[66] I allow the application to dismiss the complaint against Ms. Hinton. The complaint against Civeo will proceed to a hearing. I encourage the parties to take advantage of the Tribunal’s mediation services.
Ijeamaka Anika
Tribunal Member