Moudakis v. Insurance Corporation of British Columbia and others, 2024 BCHRT 266
Date Issued: September 18, 2024
File: CS-001563
Indexed as: Moudakis v. Insurance Corporation of British Columbia and others, 2024 BCHRT 266
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:
Nick Moudakis
COMPLAINANT
AND:
Insurance Corporation of British Columbia, Inderjit Kaila-Grewal, Vera Wong, and Balvinder Bains
RESPONDENTS
REASONS FOR DECISION
APPLICATION TO DISMISS A COMPLAINT
Section 27(1)(c)
Tribunal Member: Devyn Cousineau
Counsel for the Complainant: Aleem Bharmal, KC
Counsel for the Respondents: Jessica Fairbairn and Alyssa Paez
I INTRODUCTION
[1] This is a decision about whether to dismiss Nick Moudakis’s human rights complaint without a hearing.
[2] Mr. Moudakis has worked for the Insurance Corporation of BC [ICBC] since 2006. He says that, during the period of this complaint, he had disabilities related to his mental and physical health. In September 2017, a new manager – Inderjit Kaila-Grewal – took over in his office. Shortly after that, he was disciplined with a three-day suspension. Mr. Moudakis alleges that this began a period where Ms. Kaila-Grewal and his supervisors, Vera Wong and Balvinder Bains, targeted him with harassment and micromanagement. He says that this negatively impacted his mental health. Starting in October 2019, Mr. Moudakis was absent from work for ten weeks. When he returned, Ms. Kaila-Grewal determined he had engaged in sick leave fraud – a claim he denies – and suspended him. At this point, Mr. Moudakis was being accommodated with a three-day work week. ICBC denied his request to implement this accommodation at a different location. In March 2020, Mr. Moudakis stopped working and was ultimately absent for a year on long term disability leave.
[3] In his human rights complaint, Mr. Moudakis alleges that ICBC, Ms. Kaila-Grewal, Ms. Wong, and Ms. Bains discriminated against him based on his physical and mental disabilities, in violation of s. 13 of the Human Rights Code.
[4] The Respondents deny discriminating. They say that the conduct that Mr. Moudakis complains about was part of the regular management of a workplace and could not amount to discrimination. They say that Mr. Moudakis was suspended for dishonesty and not for any reason related to his disabilities. Finally, they say that all of Mr. Moudakis’s disability-related needs were fully accommodated through ICBC’s Employee Wellness Department.
[5] The Respondents ask the Human Rights Tribunal to dismiss Mr. Moudakis’s complaint. They argue that some of his allegations are outside the Tribunal’s jurisdiction, were filed outside the one-year time limit, and/or have been appropriately dealt with in a union grievance: Code, ss. 27(1)(a), (f), and (g). They also argue that the entire complaint should be dismissed because it does not disclose facts that could contravene the Codeand has no reasonable prospect of success: ss. 27(1)(b) and (c). Finally, they argue it does not further the purposes of theCodeto proceed with the complaint against the three individually-named Respondents.
[6] I have carefully considered all the material presented by the parties. For the reasons that follow, I have determined that Mr. Moudakis has no reasonable prospect of proving that the Respondents harassed him or treated him adversely in his employment, or that his suspension from work was connected to his disabilities. Finally, I am reasonably certain that ICBC will justify its decision not to approve an accommodated work week at a different location because the Respondents were not aware, and could not reasonably have been aware, that Mr. Moudakis required a transfer because of his disabilities. The complaint is dismissed under s. 27(1)(c) of the Code.
[7] I begin with Mr. Moudakis’s application to file further submissions.
II APPLICATION TO FILE FURTHER SUBMISSIONS
[8] Generally speaking, the Tribunal’s application process involves three submissions: the application, the response, and the reply: Rule 28(2). The Tribunal may accept further submissions where fairness requires that a party be given an opportunity to respond to new issues raised in reply: Tribunal Rules of Practice and Procedure, Rule 28(5); Kruger v. Xerox Canada Ltd. (No. 2),2005 BCHRT 24 at para. 17. The overriding consideration is whether fairness requires an opportunity for further submissions: Gichuru v. The Law Society of British Columbia (No. 2), 2006 BCHRT 201, para. 21.
[9] Mr. Moudakis applies to file a further submission. He says that the Respondents raised a new issue regarding his credibility in their reply, and that fairness requires he be given the opportunity to respond. He cites the Respondents’ argument that he is not credible because he said that he was being accommodated in his current position which – they argue – is not true. He seeks to submit a further argument and affidavit substantiating his claim.
[10] I am not persuaded that fairness requires this further submission. Nothing in this application turns on whether Mr. Moudakis’s evidence regarding his current position is credible. There is no prejudice to Mr. Moudakis because I have not relied on the Respondents’ argument on this point to reach my conclusion. The application is denied.
III BACKGROUND
[11] The following background is taken from the material filed by the parties. I make no findings of fact.
[12] Mr. Moudakis has worked for ICBC since 2006. During the relevant period, he worked as a Client Services Representative [CSR] at the Richmond Licensing Office. At all times, he was represented in his employment by the Canadian Office and Professional Employees’ Union, Local 378.
[13] In September 2017, Ms. Kaila-Grewal became the manager of the Richmond office. At that time, Ms. Wong was Mr. Moudakis’s direct supervisor. Ms. Bains became a CSR supervisor in December 2018, and supported Ms. Wong in supervising Mr. Moudakis after that. Ms. Wong and Ms. Bains reported to Ms. Kaila-Grewal. Together, I refer to Ms. Kaila-Grewal, Ms. Wong, and Ms. Bains as the Individual Respondents.
[14] There is medical evidence to support that, between September 2017 and March 2020, Mr. Moudakis was experiencing mood-related symptoms and workplace stress, related to anxiety and depression. For a period in 2019, he also had physical health issues related to his foot which he argues amount to a disability. In this application, the Respondents do not dispute that Mr. Moudakis may be able to prove he had mental and/or physical disabilities during the period of the complaint.
A. September 2017 suspension
[15] In September 2017, ICBC imposed a three-day suspension on Mr. Moudakis. Mr. Moudakis grieved the suspension through his union. The suspension was upheld by an arbitrator. Under the collective agreement, the discipline remained on Mr. Moudakis’s record for 18 months, after which it would be removed provided there was no further discipline. Mr. Moudakis refers to this as a “probationary period”, during which further misconduct could result in the termination of his employment.
[16] In this complaint, Mr. Moudakis does not allege that that this first suspension was discriminatory. However, he says it is relevant background to understand the circumstances giving rise to the complaint.
[17] Mr. Moudakis says this discipline caused him stress, anxiety, and pain. In his complaint, he alleged that, as a result, he had to “voluntarily downgrade” from full time to part time work. ICBC disputes this. It says that Mr. Moudakis was already working part time when he received the suspension and requested a return to full-time status very shortly after the suspension. In November 2017, his request was approved, and he was changed to full time effective December 2017. The Respondents have submitted records substantiating this history of Mr. Moudakis’s employment status.
B. Alleged harassment: September 2017 to October 2019
[18] In his complaint, Mr. Moudakis alleges that the Individual Respondents harassed him and micromanaged his work. He says that, before Ms. Kaila-Grewal became his manager, he consistently received positive performance evaluations. He says that, after she became his manager, she identified areas where he was not meeting targets. These performance evaluations are before me and support that Ms. Kaila-Grewal identified areas where Mr. Moudakis was performing well and areas for improvement. Mr. Moudakis says that, as a result of these performance evaluations, he started experiencing “anxiety and stress and other medical issues”.
[19] Mr. Moudakis’s allegations of harassment stem largely from discussions that he had with the Individual Respondents about his work. The Individual Respondents agree those discussions took place, but say that they were respectful discussions about workplace expectations that would apply to any employee. Almost every discussion was followed by an email summarizing it, and those emails are before me.
[20] Between September 2017 and October 2019, Mr. Moudakis points to the following incidents which he says demonstrate a pattern of “targeted bullying” and harassment.
1. Attendance
[21] On June 12, 2018, Ms. Kaila-Grewal spoke to Mr. Moudakis about his attendance. In an email summarizing their conversation Ms. Kaila-Grewal wrote:
In 2017 the corporate average was 1.94 sick occurrences per employee and 6.87 shifts lost for the full calendar year. In the first four months of 2018 you are currently at 3 occurrences and 4.4 shifts lost. You will be required to submit a doctor’s note for every occurrence here after and may be subject to getting a [form] filled out by your doctor.
I want to emphasize the importance of utilizing all resources available o you to ensure you are well and able to meet your commitment to be at work. You will find Information on the confidential Employee and Family Assistance program and Employee Wellness on the Hub.
If there is anything I can do to support you, please let me know.
[22] Mr. Moudakis says he was frustrated about this, especially since he considered Ms. Kaila-Grewal to be the “root cause” of much of what he was going through. Ms. Kaila-Grewal says this is a routine email that she sends to any employee who has reached a certain level of unexplained absences.
2. Logging out
[23] On June 19, 2018, Ms. Kaila-Grewal spoke to Mr. Moudakis about ensuring he did not log out of a company system until after he fully finished with the customer transaction.
3. Lateness
[24] On November 1, 2018, Mr. Moudakis says he was reprimanded and had his “pay docked” for being 5-10 minutes late. He says he had texted his manager to advise he would be late because of unexpected traffic. He says this had never been an issue before Ms. Kaila-Grewal was his manager and he never saw anyone else be reprimanded for being a few minutes late. Ms. Kaila-Grewal agrees that she spoke to Mr. Moudakis about being late, and expressed her expectation that he should plan ahead for the possibility of traffic. She initially said he would not be paid for the ten minutes he was late. She says she rescinded that decision after speaking to him.
[25] On September 14, 2019, Ms. Bains spoke to Mr. Moudakis after he was two minutes late for work. She says this was her standard practice. Mr. Moudakis apologized for being late, noting it had been a stressful morning.
[26] The Respondents say that it was very important that CSRs are present and ready to start work at their scheduled time. Mr. Moudakis was never disciplined for being late.
4. Conducting personal business in the office
[27] On May 13, 2019, Ms. Kaila-Grewal spoke to Mr. Moudakis about a concern that he was conducting personal business at work. Mr. Moudakis says that a friend dropped by to pick up some tea from him, at no cost. In response, Ms. Kaila-Grewal advised him of her expectation that he would abide by ICBC’s Code of Ethics, prohibiting staff from conducting personal business at work.
5. Customer complaints
[28] On three occasions in 2019, Ms. Kaila-Grewal and/or Ms. Wong spoke to Mr. Moudakis about his tone with customers. In his complaint, he alleges that his managers called him a “big guy” and warned him that he may be perceived as intimidating.
[29] Ms. Kaila-Grewal and Ms. Wong say that each of these discussions were prompted by a customer complaint about Mr. Moudakis. Those complaints are before me. The customers complained that Mr. Moudakis was condescending, sarcastic, judgemental, and rude – which he disputes. The Respondents say these were coaching conversations and there was no discipline arising from the customer complaints. They do not address Mr. Moudakis’s claim that they called him a “big guy”.
6. Gossip
[30] On February 7, 2019, Ms. Kaila-Grewal spoke to Mr. Moudakis after reports that he had been inquiring about investigative meetings and discipline concerning other employees. She reminded him about ICBC’s Respectful Workplace Policy, which prohibits gossip. She warned that further complaints “will be investigated and could result in discipline”.
7. Medical appointments
[31] In April 2019, Mr. Moudakis requested accommodation in a position working three days per week. This request was approved, and facilitated in the Richmond office.
[32] In June 2019, Mr. Moudakis complains that he was told to schedule medical appointments during his days off. The Respondents agree this discussion took place. They say that, as a part time employee, Mr. Moudakis was expected to make best efforts to schedule appointments outside of working hours. They say that, instead, Mr. Moudakis had requested time off to attend 16 appointments over five months. Ms. Wong spoke to him to remind him about ICBC’s expectations regarding scheduling appointments.
[33] On June 6, 2019, Ms. Kaila-Grewal wrote to Mr. Moudakis about an upcoming appointment during work hours. She reiterated:
The expectation is that medical and dental appointments need to be scheduled on your day off as you are part-time. We can make exceptions for Specialist Appointments but those would be very few as it usually takes a long time to get these appointments. Any medical or dental appointments you schedule are not paid for so if you are late coming in on June 10, it will be unpaid.
[34] On November 21, 2019, Ms. Kaila-Grewal emailed all staff reminding them to schedule appointments after work hours.
8. Overall impact
[35] Mr. Moudakis characterizes the above conversations and incidents as harassment and targeted bullying. He says that these working conditions caused him anxiety and stress. He says this led him to take a medical leave from December 18, 2018, until January 2, 2019. I note that the form submitted to ICBC by Mr. Moudakis’s doctor indicated that this leave was for a respiratory condition.
[36] Beginning in July 2019, Mr. Moudakis began requesting a transfer to a different office, working three days per week. I return to this below.
[37] The next major incident occurred when Mr. Moudakis received a three-day unpaid suspension in December 2019.
C. December 2019 suspension
[38] The circumstances giving rise to this suspension began in July 2019. Mr. Moudakis asked Ms. Wong if he could take October 5 off to attend a family wedding. At that point, all his vacation days had been booked. Ms. Wong suggested that he could request the day off during the unpaid “Time Off” [TO] bid. TO is a benefit under the collective agreement which allows employees to earn one unpaid day off work during specified three-week periods of time. The TO period relating to October 6 closed September 26. TO requests are subject to operational requirements, and considered after vacation requests.
[39] On August 31, Mr. Moudakis emailed the other CSRs advising that he needed to take October 5 off for a wedding, and asking them not to request that day off.
[40] Mr. Moudakis requested TO for October 5. On October 2, Ms. Wong denied the request. In their discussion that day, Ms. Wong says that she explained that staffing levels were low on October 5, and ICBC was already paying some staff double time to work. She says it was not operationally feasible to grant Mr. Moudakis’s request for day off. Ms. Wong says that, in response, Mr. Moudakis said it was a family wedding that he could not miss and that “he might have to call in sick and get a doctor’s note for that shift because he was limping”. Mr. Moudakis denies saying this, and says he instead said something like “I’m so stressed and sick as it is and now this happens to me”. He says he told Ms. Wong that he had a doctor’s appointment scheduled for the following day. Ms. Wong reported her conversation with Mr. Moudakis to Ms. Kaila-Grewal and Ms. Bains. Ms. Bains says that she overheard part of this conversation, including Mr. Moudakis’s threat to call in sick.
[41] Ms. Kaila-Grewal also spoke to Mr. Moudakis that day about his request for time off. She says she apologized that he could not have the day off and emphasised that it was very important he attend work because they were short staffed and paying overtime.
[42] The next day – October 3 – Mr. Moudakis attended a previously-scheduled appointment with his doctor. That same day, Mr. Moudakis faxed ICBC a medical note stating he was unable to work due to illness from October 3-21.
[43] Mr. Moudakis’s evidence about the immediate reason for this leave is somewhat contradictory. He says that, by this point, he had been suffering with foot pain for several months. In his complaint, he says that his doctor recommended he immediately take three weeks off work to focus on physio and further testing related to his foot pain. This is consistent with what he told Ms. Wong on October 2 about limping. However, the doctor’s records indicate that Mr. Moudakis’s primary health concerns at this point were psychological. In his affidavit for this application, Mr. Moudakis says that the doctor recommended an extended time off work due to his “ongoing and exacerbated medical issues, including increased stress and anxiety,” that he had been experiencing at work. According to his doctor’s records, Mr. Moudakis’s foot first presented a barrier to work on October 19.
[44] The Individual Respondents say that they were immediately concerned when they received Mr. Moudakis’s medical note. They each say that they had not previously noticed that Mr. Moudakis was limping, and suspected that Mr. Moudakis was simply making good on his promise to use sick leave to attend the family wedding. Ms. Wong says that she had very recently seen Mr. Moudakis walking quickly and carrying his daughter without apparent pain.
[45] Ultimately, Mr. Moudakis was absent from work for ten weeks. During this period, he was diagnosed with a fractured toe. He was prescribed an air cast to help stabilize the foot. His medical records also indicate that he was struggling with his mental health. I return to this below.
[46] Mr. Moudakis’s first day back at work was December 11, 2019. He was on a graduated return to work plan. That day, he was called into an investigation meeting with Ms. Kaila-Grewal. His union representative was present, along with another ICBC manager who took notes. The purpose of the meeting was to investigate Mr. Moudakis’s absence from work on October 5.
[47] During this meeting, Mr. Moudakis confirmed that he had attended the family wedding on October 5. He says he arrived late and left early, and did not engage in any strenuous activity including dancing. He did not mention his psychological conditions that he says caused him to miss work; he explains that he was concerned about raising private mental health issues. He says that he told Ms. Kaila-Grewal that the basis for his leave was documented and approved through the Wellness Department.
[48] Ms. Kaila-Grewal says that she was not satisfied with Mr. Moudakis’s explanation during this meeting. She says she did not believe Mr. Moudakis’s claims during the meeting that:
a. he never threatened to call in sick on October 5,
b. he could not have worked on October 5,
c. he had been limping in the office before October 3,
d. he complained about foot pain before October 2, and
e. he did not realize that ICBC had to pay overtime to cover his October 5 shift.
In consultation with an Employee Relations Advisor, she issued a three-day suspension for sick leave fraud.
[49] In the letter explaining the suspension, Ms. Kaila-Grewal noted:
… you were unable to provide a valid explanation as to how you could attend the wedding but still not attend your scheduled work shift. The employer would have been willing to accommodate you and provide you alternative duties.
She further expressed her view that Mr. Moudakis had been dishonest regarding his previous conversations with his managers and failed to take accountability for his actions.
[50] On December 27, 2019, Mr. Moudakis filed this human rights complaint.
D. Alleged harassment: December 2019 – March 2020
[51] After his suspension, Mr. Moudakis alleges that the Individual Respondents continued to micromanage his performance and harass him. He began documenting these incidents, including the following:
a. January 18, 2020: Mr. Moudakis alleges that Ms. Wong said to him “bye hot stuff”. Ms. Wong denies saying this.
b. February 1, 2020: Mr. Moudakis reported a co-worker’s errors to Ms. Bains. He thought it would be handled with discretion, but Ms. Bains told the co-worker he had reported the issue.
c. February 5, February 24, March 7, 2020: Mr. Moudakis recorded that Ms. Kaila-Grewal or Ms. Bains were standing between 5-15 feet away from him and observing his work. Mr. Moudakis describes this as “micromanagement” and “harassment” and says it made him feel uncomfortable. Ms. Kaila-Grewal and Ms. Bains say it was part of their ordinary supervision of work.
d. March 16, 2020: Mr. Moudakis complains that he was spoken to about “closing the transactions earlier”. Ms. Kaila-Grewal agrees this discussion took place. She says she had received complaints that Mr. Moudakis was not helping with end-of-day tasks because he was taking the entire closing time to cash out. As a result, she suggested that Mr. Moudakis do a mid-day cash out.
E. Request to transfer
[52] Beginning in July 2019, Mr. Moudakis was actively seeking to transfer to a different ICBC office. At that point, he was being accommodated in a three-day work week at the Richmond office. ICBC’s response was that Mr. Moudakis could apply for lateral transfers but would have to work the schedule that was posted for. In other words, ICBC would not accommodate Mr. Moudakis’s three-day schedule at locations other than Richmond. From its perspective, Mr. Moudakis was already successfully accommodated in Richmond, and it was not prepared to require another office to accommodate his three-day schedule.
[53] On March 27, 2020, Mr. Moudakis submitted a letter to the Wellness Department from his psychologist. The letter indicated that the psychologist supported his request to transfer to a different office “so that he would no longer be supervised by his current managers, Inderjit Kaila-Grewal, Vera Wong, and Bal Bains”. ICBC says this is the first information it received indicating that Mr. Moudakis may require accommodation in relation to his managers.
[54] In the meantime, on March 16, 2020, Mr. Moudakis began a medical leave of absence from work. The doctor’s records indicate the reason for the leave was psychological; Mr. Moudakis was “unable to cope with work stress”. He was ultimately absent from work for about one year in a short and then long-term disability leave.
[55] When Mr. Moudakis returned to work, he accepted a part-time position in Surrey. He says this is an accommodated, three day per week position. ICBC says that Mr. Moudakis is not currently receiving any accommodation in that position. Nothing turns on this discrepancy.
[56] I turn now to the Respondents’ application to dismiss the complaint.
IV DECISION
[57] Section 27(1) of the Codegrants the Tribunal a gatekeeping power to dismiss complaints that do not warrant the time and expense of a hearing. The Respondents have applied on several bases to have all or some of Mr. Moudakis’s complaint dismissed. I have found I can most efficiently resolve their application under s. 27(1)(c).
[58] Under s. 27(1)(c), the Tribunal may dismiss complaints that have no reasonable prospect of success. In this analysis, the Tribunal does not make findings of fact. 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 burden is on the Respondents to establish the basis for dismissal.
[59] A dismissal application is not the same as a hearing: Lord v. Fraser Health Authority, 2021 BCSC 2176at para. 20; SEPQA v. Canadian Human Rights Commission, [1989] 2 SCR 879 at 899. The threshold to advance a complaint to a hearing is low. In a dismissal application, a complainant does not have to prove their complaint or show the Tribunal all the evidence they may introduce at a hearing. They only have to show that the evidence takes their complaint out of the realm of conjecture: Workers’ Compensation Appeal Tribunal v. Hill, 2011 BCCA 49 at para. 27.
[60] 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 942at para. 77. The Tribunal has described its task of assessing the evidence under s. 27(1)(c) as follows:
In conducting an assessment of the evidence, I make no findings of fact. However, I nonetheless apply a content-based analysis not unlike that which would be applied by a fact-finder. Among other things, I look for both internal and external consistency, place the evidence in context, consider the overall relationship of the parties and consider all of the circumstances in which the alleged acts of discrimination occurred. On this basis, I gauge the relative strengths and weaknesses of the case and determine what aspects of the complaint do not rise above conjecture and, in light of all of the material before me, have no reasonable prospect of success.
Ritchie v. Central Okanagan Search and Rescue Society and others,2016 BCHRT 110 at para. 120
Applying this approach, the fact that a complaint may raise issues of credibility is not necessarily a reason to deny an application to dismiss: Evans v. University of British Columbia, 2008 BCSC 1026 at para. 34. However, if there are foundational or key issues of credibility, the complaint must go to a hearing: Francescutti v. Vancouver (City), 2017 BCCA 242 at para. 67.
[61] To prove his complaint at a hearing, Mr. Moudakis will have to prove he has disabilities protected by the Code,he was adversely impacted in his employment, and his disabilities were a factor in that adverse impact: Moore v. British Columbia (Education), 2012 SCC 61 at para. 33. If he does that, the burden would shift to the Respondents to justify the impacts as a bona fideoccupational requirement. This incorporates their obligation to accommodate Mr. Moudakis to a point of undue hardship. If the impacts are justified, there is no discrimination.
[62] At this stage, the Respondents do not dispute that Mr. Moudakis may be able to prove that he has disabilities protected by the Code.These include mental disabilities related to his mental health, as well as a physical disability related to the issues he was having in 2019 with his foot.
[63] Rather, the Respondents argue that Mr. Moudakis has no reasonable prospect of proving that any of the Individual Respondents’ conduct amounted to harassment or adverse treatment, and/or that any adverse impacts he experienced – including the suspension – were connected to his disabilities. They further argue they are reasonably certain to prove that they accommodated Mr. Moudakis’s disability-related needs in the workplace. I agree.
[64] In the sections that follow, I consider Mr. Moudakis’s allegations under three headings: (1) discriminatory harassment, (2) the December 2019 suspension, and (3) the request for a lateral transfer.
A. Discriminatory harassment
[65] There is some evidence to support that Mr. Moudakis’s work environment was negatively affecting his mental health. However, this is not necessarily evidence of discrimination. In Vandale v. Town of Golden and others, 2009 BCHRT 219, the Tribunal explained:
In essence, Ms. Vandale alleges that [a coworker and manager] harassed her, and that that harassment led to stress and anxiety. Assuming that to be true, the fact that particular conduct results in an individual experiencing stress and anxiety, or even a mental disability, does not mean that that conduct constitutes discrimination on the grounds of mental disability. Ms. Vandale’s allegation is that the respondents caused her to suffer stress and anxiety, not that they discriminated against her because of or in relation to the stress and anxiety she alleges she experienced. An allegation of intentional infliction of mental distress of the kind Ms. Vandale makes might be a tort or some other kind of legal wrong; it is not a human rights complaint. [para. 43]
To the extent that Mr. Moudakis is arguing that the Respondents discriminated against him by causing him to experience stress and anxiety, then – applying the reasoning in Vandale –this allegation has no reasonable prospect of success.
[66] Aside from the impact on his mental health, Mr. Moudakis argues that the Respondents targeted him for bullying and harassment because of his disabilities. Respectfully, I am persuaded that Mr. Moudakis has no reasonable prospect of proving this allegation.
[67] It is the role of managers and supervisors to oversee and manage employees’ performance. This necessarily involves talking to employees about workplace rules and expectations. Sometimes these conversations are difficult and – from the employee’s perspective – unwelcome. Different managers may have different approaches – where one manager may be more lax, another may take a stricter approach. In general, it is not adverse treatment within the meaning of the Codefor a manager or supervisor to performance manage people under their supervision. For example, in McBride v. Orca Sand & Gravel and others (No. 2), 2010 BCHRT 190, the Tribunal found that the employer’s discussions with the complainant about her absenteeism, changes to her job title, reduction in her tasks, an employee evaluation, and performance management discussions did not amount to adverse treatment within the meaning of the Code. In doing so, the Tribunal recognized that employers often organize work in ways that employees may not like, but that in itself does not amount to adverse treatment.
[68] On the other hand, the Codemay be engaged where there is evidence to support that a particular employee is being singled out for performance management because of their Code-protected characteristics, or where an employee’s Code-protected characteristics present a barrier to compliance with the workplace standard being enforced.
[69] Mr. Moudakis argues that the Individual Respondents were targeting him because of the amount of sick time he was taking and because he moved to part time status in April 2019. Respectfully, there is no evidence capable of supporting this allegation – it is purely speculative. The Respondents have submitted ample evidence, most of which is undisputed, to explain their conversations with Mr. Moudakis.
[70] First, I note that Mr. Moudakis’s claim that he was being singled out is somewhat contradicted by his allegation that, after Ms. Kaila-Grewal became manager, several employees were disciplined and terminated. He does not offer any examples when he was scrutinized for behaviour that other employees were permitted to engage in.
[71] Second, Mr. Moudakis does not dispute most of the facts giving rise to the discussions regarding his attendance, lateness, gossip, customer complaints, or medical appointments. He does dispute that he conducted personal business in the office, but agrees the discussion was prompted when a friend came to work to pick something up from him. All of these topics concern regular workplace standards and expectations, which the Individual Respondents say they would address with any employee. In some cases, the Individual Respondents emailed all staff to reiterate the workplace expectation.
[72] Third, the fact that some of these conversations concerned Mr. Moudakis’s absences from work, which he says were related to his disabilities, does not make them discriminatory. Without more, it is not discriminatory to expect part-time employees to try to arrange medical appointments during their time off, or to provide medical notes to explain higher than average absenteeism. Again, Mr. Moudakis was not disciplined in relation to his appointments or absenteeism. It appears undisputed that all his requests for leave or to reduce his working hours were approved through the Wellness Department and implemented in the Richmond office.
[73] Fourth, there is no evidence that the Individual Respondents were disrespectful or otherwise inappropriate towards Mr. Moudakis during these discussions. The emails summarizing the discussions are – on their face – straightforward and respectful. Though Mr. Moudakis characterizes the discussions as “warnings”, there is no dispute that – aside from his two suspensions – he was not disciplined.
[74] The evidence before me could support that Mr. Moudakis struggled under the management style of the Individual Respondents, and that the conditions in his workplace negatively impacted his mental health. Even having the Individual Respondents standing nearby and watching him work was perceived as targeted harassment. However, considering the evidence as a whole – including the Respondents’ non-discriminatory explanation for how they treated Mr. Moudakis – I am persuaded that Mr. Moudakis has no reasonable prospect of proving that the Respondents harassed or bullied him in connection with his disabilities. This allegation is dismissed under s. 27(1)(c) of the Code.
B. December 2019 Suspension
[75] Mr. Moudakis was suspended from work because he was absent from work on October 5, 2019. There is no dispute that this suspension amounts to an adverse impact in his employment. The Respondents argue that Mr. Moudakis has no reasonable prospect of proving that the suspension was connected to his disabilities. I agree.
[76] The critical facts regarding this allegation are undisputed. Mr. Moudakis had made it clear he wanted to attend a family wedding on October 5. When he was told he had to work, he was upset. He mentioned pain in his foot and limping, and said he had a doctor’s appointment the next day. After their meeting, Ms. Wong emailed Ms. Kaila-Grewal. In that email, she said she had told Mr. Moudakis that staffing levels were low and they were paying staff double overtime to work. She said that he told her he might have to call in sick. The next day, Mr. Moudakis submitted a medical note excusing him from work. In an email that day to Ms. Kaila-Grewal, Ms. Wong noted a concern about his “integrity”. Mr. Moudakis then did not attend work on October 5 and went to the family wedding.
[77] Upon Mr. Moudakis’s return to work, Ms. Kaila-Grewal met with him, in the presence of a union representative, to investigate the circumstances of his absence on October 5. In that meeting, he maintained he was absent on October 5 because of his foot. He admitted going to the wedding on October 5, albeit for a short time. He denied threatening to take a sick leave or being told that ICBC would have to use overtime to cover his shift. He said he had told his supervisors about his foot issues previously – a claim they deny. Though Mr. Moudakis now says that he referred Ms. Kaila-Grewal to the Wellness Department for further information, there is no evidence that he offered her any other explanation aside from his foot for why he could not attend work on October 5.
[78] In her letter dated December 11, 2019, Ms. Kaila-Grewal set out five reasons for the suspension:
a. Evidence (from Ms. Wong and Ms. Bains) that Mr. Moudakis threatened to call in sick to attend the wedding, and did so.
b. Mr. Moudakis attended the wedding instead of going to work, and did not present a “valid explanation” about why he could attend the wedding but not work, with accommodations.
c. Mr. Moudakis had been dishonest regarding his previous conversations with supervisors about his foot concerns.
d. Mr. Moudakis had been dishonest about threatening to call in sick.
e. Mr. Moudakis had been dishonest when he denied being told (by Ms. Wong and Ms. Kaila-Grewal) that ICBC would have to pay overtime to cover his shift.
[79] The Respondents have presented evidence in this application to support these conclusions, including the contemporaneous email communications from Ms. Wong voicing her concerns about the leave and reporting to Ms. Kaila-Grewal about her conversation with Mr. Moudakis – which he would later deny. While Mr. Moudakis disputes that he had been dishonest, I do not consider this to be an issue requiring a hearing. Rather, the evidence overwhelmingly supports the Respondents’ non-discriminatory explanation for why it decided to suspend Mr. Moudakis: he attended a wedding instead of work and Ms. Kaila-Grewal determined he was dishonest in the investigation process. There is no evidence that could connect these reasons to Mr. Moudakis’s disabilities.
[80] Mr. Moudakis argues that it was discriminatory for Ms. Kaila-Grewal not to inquire with the Wellness Department about whether Mr. Moudakis’s absence on October 5 was for a legitimate disability-related reason. In the specific circumstances of this complaint, I disagree.
[81] First, if Ms. Kaila-Grewal had inquired about Mr. Moudakis’s absence on October 5, she would have learned that it was not because of his stated reason – his foot. Rather, the initial medical information from Mr. Moudakis’s doctor indicated that his absence beginning October 5 was due to a psychological condition. In an Occupational Health Fitness Assessment dated October 5, the doctor reported on his examination of Mr. Moudakis on October 3. His doctor indicated he was “currently restless, unable to focus and cope with work stress”. The doctor did not mention physical symptoms or a foot injury. Mr. Moudakis’s only limitations were cognitive and psychological. The first documented report to the Wellness Department regarding foot pain was when Mr. Moudakis called on October 18. After that, the first record from Mr. Moudakis’s doctor indicating that his foot was impacting his return to work was set out in an Occupational Health Fitness Assessment dated December 3, 2019. Only at that point did the doctor identify the primary condition relating to Mr. Moudakis’s absence as “musculoskeletal”, with his psychological conditions begin a secondary condition. On the whole, the medical evidence does not support what Mr. Moudakis told Ms. Wong and Ms. Kaila-Grewal about why he could not attend work on October 5. Contrary to triggering an accommodation process, this could have further supported Ms. Kaila-Grewal’s assessment that Mr. Moudakis was not being honest about his leave on October 5.
[82] Second, none of the information held by the Wellness Department would support that Mr. Moudakis’s conduct giving rise to the discipline – namely, dishonesty – was connected to a disability. Indeed, Mr. Moudakis does not argue that any of his conduct cited in the suspension letter was related to a disability. Rather, he denies that he was dishonest and simply says that his medical leave was legitimate and related to his disabilities.
[83] Considering the evidence as a whole, I am persuaded that Mr. Moudakis has no reasonable prospect of proving that any of his health conditions were a factor in the discipline he received regarding his absence on October 5. As a result, this allegation has no reasonable prospect of success and is dismissed under s. 27(1)(c) of the Code.
C. Transfer
[84] Finally, Mr. Moudakis alleges that ICBC discriminated against him by refusing to accommodate his three-day work week at a different location.
[85] Accommodation is a collaborative process, requiring active participation and cooperation by the employee, employer, and union: Central Okanagan School District No. 23 v. Renaud , [1992] 2 SCR 970 [Renaud]. The employer, as the party in charge of the workplace, is generally responsible for formulating reasonable accommodations. The union’s obligation is to facilitate, and not impede, accommodation. And as the employee, Mr. Moudakis’s obligation in the accommodation process is to bring forward the “facts relating to discrimination”, to facilitate implementation of reasonable proposals, and to accept reasonable accommodation: Renaud at p. 994.
[86] There is no dispute that, beginning in April 2019, Mr. Moudakis’s disabilities required that he only work a three-day work week. There is also no dispute that ICBC accommodated this request in its Richmond office. In circumstances where a reasonable accommodation is being implemented, the employer’s duty is discharged. It is not obliged to go further and implement an employee’s perfect or preferred option:Renaudat para. 44; see e.g. Hall v. BC Ferry Services Inc.,2007 BCHRT 156. I agree with ICBC that it is reasonably certain to prove that – absent a disability-related reason for a transfer – it was reasonably accommodating Mr. Moudakis at the Richmond office.
[87] The reasonableness of this accommodation could change if Mr. Moudakis could prove that his request for a transfer was connected to his disabilities. In that case, ICBC would be required to justify its decision not to approve an accommodated work week at a different office, between July 2019 and March 2020.
[88] Mr. Moudakis says that he required a transfer because he needed to “remove himself from what he believed to be a toxic and much too stressful situation”. He says this was based on his doctor’s recommendation. He points to forms completed by his doctor which indicate he was having difficulty coping with “work stress”. However, neither of those forms refer specifically to working conditions at the Richmond office. The only medical evidence connecting his disabilities to his specific workplace was the March 27, 2020, note from his psychologist supporting his request to work at a different location away from the Individual Respondents.
[89] I will accept, for the purpose of this application, that Mr. Moudakis may be able to establish that his disabilities were exacerbated by working conditions at the Richmond office. At a hearing, this may shift the burden to ICBC to justify its decision not to offer Mr. Moudakis accommodated work at a different location. In my view, ICBC is reasonably certain to justify this decision. For that reason, the allegation has no reasonable prospect of success: Purdy v. Douglas College and others, 2016 BCHRT 117 at para. 50.
[90] Specifically, I am persuaded that ICBC is reasonably certain to prove that Mr. Moudakis did not bring forward the facts related to discrimination. Employers are not responsible to accommodate disability-related needs that they were not aware of, or could not reasonably have been aware of. Here, there is no evidence to support that, before March 27, 2020, Mr. Moudakis told ICBC that his request for a transfer was related to a disability. By the time Mr. Moudakis submitted the psychologist’s letter naming the Individual Respondents, he was already on a leave from work.
[91] Mr. Moudakis’s allegation regarding his request to transfer to a different office between July 2019 and March 2020 has no reasonable prospect of success, and is dismissed.
V CONCLUSION
[92] I have concluded that Mr. Moudakis’s human rights complaint has no reasonable prospect of success. It is dismissed under s. 27(1)(c) of the Code.
Devyn Cousineau
Tribunal Member