Potter v. Neal Kandola and others, 2024 BCHRT 267
Date Issued: September 19, 2024
File(s): CS-004283
Indexed as: Potter v. Neal Kandola and others, 2024 BCHRT 267
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:
Timothy Potter
COMPLAINANT
AND:
Neal Kandola and Paul Kandola and Kandola Forest Products
RESPONDENTS
REASONS FOR DECISION
APPLICATION TO DISMISS A COMPLAINT
Section 27(1)(c)
Tribunal Member: Jonathan Chapnick
On his own behalf: Timothy Potter
On behalf of the Respondents: Neal Kandola
I INTRODUCTION
[1] On June 14, 2021, Timothy Potter filed a human rights complaint against Neal Kandola, Paul Kandola, and Kandola Forest Products [collectively, Respondents]. He alleges discrimination in employment in contravention of s. 13 of the Human Rights Code. This decision is not about whether the Respondents discriminated. Rather, it is about whether Mr. Potter’s complaint should be dismissed without a hearing.
[2] Mr. Potter had a health condition that resulted in the amputation of his foot in 2020. He says the Respondents offered him a job in 2021, but later rescinded the offer because of his amputated foot. He says this was discrimination.
[3] The Respondents deny discriminating. They say they did not rescind the employment offer; rather, the parties failed to come to an agreement because Mr. Potter rejected their terms. They apply to dismiss Mr. Potter’s complaint under s. 27(1)(c) of the Code on the basis that it has no reasonable prospect of success.
[4] Mr . Potter’s complaint centres on phone conversations with the Kandolas before and after the initial offer of employment. He alleges that the Kandolas made comments and inquiries about his post-amputation stump and recovery during these calls. The Respondents do not agree with the facts alleged in the complaint, and specifically deny making one of the alleged comments. Each side questions the credibility of the other’s evidence. As I explain below, I have decided that these evidentiary issues must be resolved at a hearing. At this stage of the process, I am unable to say that Mr. Potter’s complaint has no reasonable prospect of success. As a result, the Respondents’ dismissal application is denied.
[5] To make my decision, I have considered all the information filed by the parties. In my reasons below, I only refer to what is necessary to explain what I decided. I make no findings of fact and reach no conclusions regarding the merits of Mr. Potter’s complaint.
II BACKGROUND
[6] Mr. Potter is self-represented, as are the Respondents. Neal Kandola made submissions on the Respondents’ behalf. The following information is drawn from the materials the parties provided, including the complaint and the response. The information is set out here as background, not as findings of fact. It is not meant to be an exhaustive summary of everything before me in this dismissal application.
[7] Mr. Potter has worked in the lumber industry for over 25 years. Neal and Paul Kandola own and run Kandola Forest Products [KFP]. To avoid confusion, I will use the Kandolas’ first names in this decision when I refer to them individually.
[8] Mr. Potter says he spent several months assisting the Respondents with their purchase of a production facility in 2020-2021. The Respondents describe the nature of their relationship during this time period differently. This difference is not material to my decision on this application. During the time period in 2020-2021, Mr. Potter was diagnosed with a health condition that resulted in the amputation of his right foot below the knee in November 2020. He says he continued to assist the Respondents following the amputation.
[9] Mr. Potter says that, on January 4, 2021, Neal continuously asked him how much longer it would be before he got fitted with a prosthetic.
[10] On or around February 12, 2021, the Respondents offered Mr. Potter employment as KFP’s vice president of operations. Mr. Potter says the offer was missing certain terms the parties had previously discussed and agreed upon, namely provisions regarding some combination of a gas card, vehicle allowance, and company vehicle [Vehicle Benefits]. Mr. Potter says his home was a long distance from the place of employment, and the commute would be very costly, so he needed the Vehicle Benefits.
[11] The Respondents seem to deny any prior discussion of Vehicle Benefits. Neal says the job offer to Mr. Potter was based, in part, on a previous conversation with him, during which Mr. Potter said he was selling his home and relocating closer to the place of employment. Neal says Mr. Potter’s demands and information during this prior conversation did not include Vehicle Benefits.
[12] The parties agree that Mr. Potter and Neal spoke on Saturday, February 13, but disagree about what was said. Neal says Mr. Potter told him he had changed his mind and was not willing to relocate, and would need Vehicle Benefits. Neal says this was a significant departure from what Mr. Potter had previously said. Neal says he told Mr. Potter that KFP was not able to meet his demands, and that the offer would stand as it was. Mr. Potter, on the other hand, says Neal told him they would modify the offer to include Vehicle Benefits and he could sign off on it the following week.
[13] Mr. Potter and Neal spoke on the phone again on Monday, February 15. Mr. Potter says Neal told him KFP was not going to be able to include Vehicle Benefits in its offer. Mr. Potter also says that, during the call, Neal expressed concern about the amount of time Mr. Potter might need to spend doing physiotherapy related to his prosthetic fitting in a city several hours away from the place of employment. Neal denies discussing anything regarding Mr. Potter’s recovery or physiotherapy at that time.
[14] In an email to Neal, which appears to have been sent on February 15 at 4:02 pm, Mr. Potter states that he had “understood on Sat that we had an agreement and then today things have changed.” He then appears to make a counteroffer, which includes Vehicle Benefits.
[15] Mr. Potter says he did not hear from Neal again after February 15. He says Paul called him on Friday, February 19, and told him he had been away and understood they were having difficulty agreeing on employment terms. Mr. Potter says he told Paul he believed they were still negotiating, and Paul said he would talk to Neal and follow up.
[16] Neal takes issue with Mr. Potter’s recollection of the February 19 phone call. He says Paul called Mr. Potter that day to see if he had considered the employment offer and how he wished to proceed. According to Neal, Mr. Potter told Paul he would not sign the offer unless all his demands for Vehicle Benefits were met, and Paul responded that KFP was not able to meet those demands. Neal says Paul allowed Mr. Potter to take a few more days to consider the offer, and then called him again on Tuesday, February 23.
[17] Neal says that, during the February 23 call, Mr. Potter again told Paul he would not sign the offer unless his demands were met. He says Paul again responded that KFP was not able to include Vehicle Benefits in its offer, which would stand as it was. Neal says Mr. Potter told Paul that he refused to sign the offer and it would remain unsigned.
[18] Mr. Potter describes the February 23 call differently. He says Paul told him they were rescinding the employment offer for the time being, and would revisit the matter in three or four months, once Mr. Potter’s stump had healed, he had his prosthesis, and he had spent time in physiotherapy.
[19] Mr. Potter says Paul called him again on April 15, and asked about his stump. He says Paul also called on May 13, at which time Paul asked about his stump and said he had heard Mr. Potter was having issues with it. Neal’s version of these events is different from Mr. Potter’s. Neal says Paul called Mr. Potter on April 15 and May 13 because Mr. Potter had left messages asking Paul to call. Neal says that, during the April 15 call, Mr. Potter asked if there were any open positions at KFP, and Paul said there were not. Neal says Mr. Potter again tried to ask questions about KFP on May 13, but Paul responded that he did not wish to discuss business.
III DECISION
[20] The Respondents received permission to file their dismissal application under the Tribunal’s Case Path Pilot Practice Direction [Case Path Pilot]. The Case Path Pilot is consistent with the Tribunal’s discretion to dismiss a complaint at a preliminary stage and its power to make rules regarding how it exercises that discretion: ss. 27(1) and 27.3 of the Code. Under the Case Path Pilot, the Tribunal reviews the complaint and response and decides whether allowing the respondent to file a dismissal application under s. 27(1) would facilitate the complaint’s just and timely resolution.
[21] Through the Case Path Pilot, the Respondents requested and were granted permission to file a dismissal application under s. 27(1)(c). In the dismissal application before me, however, they also argue for the complaint’s dismissal under s. 27(1)(b). I decline to consider this argument, because it was put forward against the Tribunal’s clear instructions. There is nothing before me to explain or justify the Respondents’ departure from those instructions, or to persuade me that it would be fair and appropriate to expand the scope of the application permitted under the Case Path Pilot. I will only address the Respondents’ application under s. 27(1)(c).
[22] Section 27(1)(c) gives the Tribunal discretion to dismiss complaints that have no reasonable prospect of success and therefore do not warrant the time and expense of a hearing: Berezoutskaia v. British Columbia (Human Rights Tribunal) , 2006 BCCA 95 at paras. 22-26, leave to appeal ref’d [2006] S.C.C.A. No. 171; Workers’ Compensation Appeal Tribunal v. Hill, 2011 BCCA 49 at para. 27. The Respondents seek the dismissal of Mr. Potter’s complaint on this basis. They say he cannot make his case and there is no reasonable prospect his complaint will succeed.
[23] To make his case at a hearing, Mr. Potter would need to prove that (1) he had a disability (2) he was adversely impacted in employment, and (3) his disability was a factor in the adverse impact: Moore v. British Columbia , 2012 SCC 61 at para. 33. The Respondents do not appear to dispute that Mr. Potter had a disability. However, they deny treating him poorly because of his amputation, and they seem to argue that he did not experience an adverse impact. They put forward the following arguments and evidence in support of their position.
[24] First, they argue that their actions demonstrate they did not view Mr. Potter’s amputation as impairing his ability to work for KFP; had they taken that view, they would not have offered him a job in the first place. Their evidence is that they made the employment offer over three months after the amputation. They say they did so because they viewed Mr. Potter as being a potentially valuable addition to KFP. They say his amputation had no bearing on this.
[25] Further, the Respondents’ evidence is that they never rescinded the offer of employment; rather, Mr. Potter refused the offer because his demands were not met. They say they gave Mr. Potter plenty of time to consider the offer and deliberate with his family. When he made it clear he was not going to sign it, they simply moved on to other candidates. They argue that a “refusal by one party to sign a contract because their financial and compensation demands are not included in the agreement does not contravene the Human Rights Code.”
[26] Mr. Potter’s evidence conflicts with that of the Respondents. He says he did not refuse the employment offer in February 2021; rather, the parties were negotiating the terms of the offer at that time. Mr. Potter says he negotiated in good faith and was trying to get a better deal for his family, but Neal “was more concerned that [he] would have to spend 2 weeks away … doing Physio to learn how to walk again and not be at the plant to do [his] job.” He says he told the Respondents his priority was his recovery and he could work remotely or he would use vacation time to cover his absence. His evidence is that Paul subsequently called him on February 23 and said they were rescinding the offer. Further, Mr. Potter’s evidence is that, between January and May 2021, the Kandolas made several comments and inquiries about his post-amputation stump and recovery, including during a conversation about the job offer on February 15 and during the February 23 phone call. Neal specifically denies any discussion of Mr. Potter’s recovery or physiotherapy on February 15, and the Respondents broadly disagree with the facts alleged in the complaint.
[27] In general, conflicting evidence and credibility questions do not preclude the Tribunal from granting a respondent’s dismissal application: see Francescutti v. Vancouver (City), 2017 BCCA 242 at para. 67 and Evans v. University of British Columbia, 2008 BCSC 1026 at para. 34. However, when these types of conflicts and questions amount to “foundational or key issues,” they must be resolved at a hearing: Francescutti at para. 67. I find this to be the case here.
[28] Mr. Potter alleges an adverse impact in employment connected to his disability. He says the Respondents offered him a job in February 2021, but rescinded it because of his amputation. This allegation, if proven, could contravene the Code. The Respondents agree they offered Mr. Potter a job, but disagree over why the offer did not result in an employment relationship. They say Mr. Potter refused the offer because KFP would not meet his compensation demands. The description of events put forward in their response and dismissal application supports their position, which is also corroborated by evidence from a KFP employee who states that Mr. Potter refused the job offer because he was unable to obtain Vehicle Benefits. The Respondents also filed a letter from one of Paul’s employees, who attests to the Kandola’s track record of supporting employees with disabilities.
[29] Mr. Potter has put forward a different version of events, which supports his position, and centres on his evidence regarding the Kandolas’ alleged comments and inquiries about his disability before and after they made the job offer. The Respondents dispute this evidence. More broadly, they say Mr. Potter “has provided faulty facts and claims throughout this process and has not provided an accurate representation of the events.” They say there are contradictions and fabrications in Mr. Potter’s evidence, which raise questions about his credibility and the reliability of his statements.
[30] In my view, these credibility questions and conflicts in the evidence go directly to the foundational issue of whether considerations related to Mr. Potter’s amputation (e.g., concerns about his potential absence to attend physiotherapy; questions about his prosthesis and recovery) were a factor in the Respondents rescinding the job offer (if they did so) and/or moving on to other candidates. To fairly and effectively decide this issue, the Tribunal must hear testimony from Mr. Potter and the Kandolas, tested through cross-examination. These are things that can only happen at an oral hearing. At this stage of the process, where the Tribunal does not find facts or assess evidence in the same way it would at a hearing, I am unable to conclude that Mr. Potter’s complaint has no reasonable prospect of success.
[31] For these reasons, I deny the Respondents’ application to dismiss the complaint under s. 27(1)(c) of the Code.
IV CONCLUSION
[32] The Respondents’ application to dismiss is denied. Mr. Potter’s complaint will proceed to a hearing. In the meantime, I encourage the parties to make efforts to settle this matter, including by making use of the Tribunal’s mediation services.
Jonathan Chapnick
Tribunal Member