MacKay v. Civeo Corporation and another, 2024 BCHRT 271
Date Issued: September 25, 2024
File: CS-003716
Indexed as: MacKay v. Civeo Corporation and another, 2024 BCHRT 271
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:
Michael MacKay
COMPLAINANT
AND:
Civeo Corporation – and – JGC Fluor BC LNG JV
RESPONDENTS
REASONS FOR DECISION
APPLICATION TO DISMISS A COMPLAINT
Section 27(1)(c)
Tribunal Member: Devyn Cousineau
Counsel for the Complainant: Laura Track
Counsel for the Civeo Corporation: Peter A. Gall, KC
Counsel for JGC Fluor BC LNG JV: Eleni Kassaris and Victoria Merritt
I INTRODUCTION
[1] This is a decision about whether to dismiss Michael MacKay’s human rights complaint without a hearing.
[2] Mr. MacKay worked as a fly in/fly out worker on the LNG Canada Project in Kitimat, BC. His employer provided housing at a lodge operated by Civeo Corporation [Civeo]. Civeo’s rules prohibited the possession of any cannabis on its premises. Mr. MacKay says he used cannabis to treat his disabilities of chronic pain and insomnia. When Civeo discovered cannabis products in Mr. MacKay’s room, it banned him from Civeo lodges. Mr. MacKay’s employer told him he could not return to work until the ban was lifted. In this human rights complaint, Mr. MacKay alleges that Civeo’s lodge ban discriminated against him based on his disabilities regarding his employment and in respect of Civeo’s services customarily available to the public: Human Rights Code,ss. 8 and 13.
[3] Mr. MacKay also brings this complaint against a second company: JGC Fluor BC LNG JV [JFJV]. JFJV provided security access to the Project. In addition, for part of the period of the complaint, it housed the workers employed by Mr. MacKay’s former employer. When Civeo issued its lodge ban, JFJV placed Mr. MacKay’s name on a “no-access” list. Mr. MacKay argues that this restricted his access to employment and JFJV’s housing services, and was based on his use of medical cannabis. He argues this was disability discrimination under ss. 8 and 13 of the Code.
[4] Civeo and JFJV argue that Mr. MacKay’s complaint should be dismissed because it has no reasonable prospect of success: Code, s. 27(1)(c). First, they argue that the evidence is insufficient to prove that Mr. MacKay has disabilities connected to his use of cannabis. Second, they argue that, because they were not Mr. MacKay’s employer, he will not be able to prove that they discriminated against him regarding his employment. Third, they argue they are reasonably certain to prove that they do not provide services customarily available to the public, and are not bound by s. 8 of the Code.Finally, Civeo says that it will be reasonably certain to justify its lodge ban because only Mr. MacKay’s employer could have accommodated him.
[5] For the following reasons, I deny the application to dismiss the complaint. In my view, Mr. MacKay has taken his allegations under ss. 13 and 8 out of a realm of conjecture. Further, I am not satisfied that Civeo is reasonably certain to prove a justification defence. The complaints warrant a determination on their merits at a hearing.
II BACKGROUND
[6] The following background is taken from the material filed by the parties. I make no findings of fact.
[7] Civeo describes itself as a global workforce accommodations specialist that operates workforce accommodation lodges across Canada and internationally. It provides accommodation to its clients’ workforces. At the time of the complaint, Civeo was operating the Kitimat Sitka Lodge [Lodge]. It contracted with LNG Canada to provide accommodation to its fly in/fly out workers.
[8] JFJV is the main contractor for the LNG Canada Project [Project] in Kitimat. Among other things, it is responsible for issuing security badges to people who need to access certain areas of the Project. Beginning November 8, 2020, its subcontractor began operating the Cedar Valley Lodge to house construction personnel. Its accommodation services are only available to employees working on the Project.
[9] BJM is a subcontractor of LNG Canada. It was Mr. MacKay’s employer during the relevant time. Mr. MacKay originally named BJM as a respondent in this complaint, but has since withdrawn his complaint against BJM. Although BJM did not participate in this application, Civeo has submitted its response to the complaint as part of its application materials.
[10] In May 2020, Mr. MacKay was dispatched by his union to work for BJM on part of the Project. He was hired on a fly in/fly out rotation, working two or three weeks on, followed by one week off. At this time, BJM’s remote workers were housed at the Lodge, pursuant to the contract between LNG Canada and Civeo.
[11] It is unclear, based on the material before me, whether Mr. MacKay was required to live at the Lodge during the relevant period of the complaint. Civeo says that he was not, and that he had the option to stay at other accommodations in the area, including other camps, houses, apartments, or hotels. However, BJM says in its response that, beginning in April 2020, its workers were required to live at the Lodge as a result of public health orders related to the Covid-19 pandemic. These public health orders are not before me, and there is no information about when or if they changed during the period of this complaint. If Mr. MacKay could have arranged other accommodation, there is no dispute that it would have been at his personal expense.
[12] Mr. MacKay has a prescription and authorization from Health Canada to use up to 14g per day of cannabis. Mr. MacKay says that, during his employment with BJM, he consumed medical cannabis after his shifts, away from his worksite and the Lodge. He says he consumed, on average, less than half a gram per day, in oil form using a vape pen. No one argues that Mr. MacKay was ever impaired by cannabis while at work.
A. The Civeo Lodge Ban
[13] All workers staying at the Lodge were required to comply with the Sitka Lodge Rules and Regulations [Lodge Rules]. It was also an expectation of Mr. MacKay’s employer, set out in the “BJM Project Worker Code of Conduct”, that he would comply with the Lodge Rules. The Lodge Rules included the following:
- CIVEO practices and enforces a zero tolerance policy in all areas of the facility . This includes, but is not limited to, verbal, physical or sexual harassment and abuse, vandalism, or illegal drugs. This will result in immediate removal from the property and loss of lodging privileges.
- Effective October 17, 2018 this Lodge is “marijuana free”. Marijuana and/or marijuana products are not permitted anywhere on site including in guest rooms, in vehicles or common areas and the possession, use or sale of marijuana products is strictly prohibited.
· Possession, use, and/or trafficking of any illegal substance or illicit drugs, drug paraphernalia or contraband drug is strictly prohibited. Until October 17, 2018, marijuana and marijuana products fall under this definition. Failing to comply with or ignoring this policy will result, at a minimum, [in] the loss of site privileges.
· Civeo will communicate with the company responsible for your reservation to disclose information regarding incidents that may occur at the lodge, concerns regarding fitness for work, or other HSSE items that may arise. [emphasis in original]
[14] Mr. MacKay signed the Lodge Rules, indicating he had read and understood them. He did not disclose that he had a prescription for medical cannabis and was in possession of cannabis. BJM did not inform Civeo that Mr. MacKay used medical cannabis and required an exemption from its marijuana-free rule.
[15] Mr. MacKay agrees that he never asked for an exemption from the marijuana-free rule, either from BJM or Civeo. He explains that it was not clear how to disclose his use of cannabis and that, based on comments by a BJM Human Resources representative [the HR Rep], he “was left with the clear impression that any medical use of cannabis would not be acceptable and that it would be futile to raise the issue any further”. At the same time, he says he was open at work about the fact that he used medical cannabis, including with his direct supervisor.
[16] On September 9, 2020, Civeo conducted a canine search of Mr. MacKay’s room at the Lodge. They discovered a vape pen containing a small amount of cannabis oil. Mr. MacKay was present for this search, and says that there were representatives from BJM, Civeo, and JFVC present. JFVC denies that it was involved at all with the search.
[17] Mr. MacKay says that, when the vape pen was discovered, he disclosed that he had a prescription for medical cannabis and offered to produce it. He says that the BJM representative told him they did not need to see it right then and instructed him to return to work.
[18] That evening, Mr. MacKay says he spoke to his supervisor and the HR Rep about the situation. He shared his prescription for medical cannabis. Mr. MacKay then flew home as part of his regular rotation. The next day, he emailed the HR Rep a copy of his Health Canada registration under the Cannabis Regulations.At some point, BJM shared this registration with Civeo.
[19] On September 12, BJM asked Mr. MacKay to have his doctor fill out a form identifying any restrictions or limitations that may affect his ability to return safely to work. The doctor indicated that Mr. MacKay had no limitations or restrictions. In answer to the question, “Is Mr. MacKay taking any medication which may affect him in his position including medical marijuana?”, the doctor answered “no”. From BJM’s perspective, this appeared inconsistent with Mr. MacKay’s prescription. It determined that, as a result, Mr. MacKay would be required to undergo an independent medical examination [IME] before he could return to work.
[20] On October 1, Civeo suspended Mr. MacKay’s Lodge privileges indefinitely in all Civeo lodges. In the letter explaining the suspension, it said:
On September 9, 2020, a K9 sweep uncovered a marijuana product in your possession. A prescription for the specific product found was not produced.
This contravenes the lodge rules and regulations that you signed upon check in.
- CIVEO practices and enforces a zero tolerance policy in all areas of the facility . This includes, but is not limited to, verbal, physical or sexual harassment and abuse, vandalism, or illegal drugs. This will result in immediate removal from the property and loss of lodging privileges.
· Possession, use of and/or trafficking of any illegal substances or illegal drugs, drug paraphernalia or contraband drugs is strictly prohibited. Failure to comply with or ignoring this policy will result, at a minimum with the loss of site privileges.
As a result of the above incident, your lodge privileges are suspended indefinitely in all Civeo Lodges.
[the Lodge Ban]
[21] Mr. MacKay says he was confused about the basis for the Lodge Ban. The reference to “illegal substances or illegal drugs” did not seem to apply, because cannabis was a legal substance and in any event he had a medical prescription. Further, he says that by that point Civeo had received his medical authorization to consume medical cannabis.
[22] On October 2, BJM’s HR Rep wrote to Mr. MacKay to advise that they had received the Lodge Ban from Civeo. The HR Rep explained that the consequence of the Lodge Ban was that “until such a time that you can arrange for your own lodgings or Civeo removes the ban, I cannot bring you to site.” She also explained that Mr. MacKay would be required to undergo an IME before he returned to work.
[23] On October 22, Mr. MacKay’s doctor provided a letter explaining that his prescription for cannabis was not limited to dried cannabis but extends to cannabis used in any form, including oils and including using vape pens. Mr. MacKay says he sent this letter to his union representative and understands that the union then forwarded it to BJM and Civeo.
[24] On October 26, BJM issued Mr. MacKay with a Record of Employment and asked the union to dispatch a new person from the hiring hall.
[25] In the meantime, Mr. MacKay says that he was working with his union to try to figure out how to have the Lodge Ban rescinded. On January 27, 2021, Mr. MacKay wrote to BJM and asked whether BJM would be willing to pay for his room and board so that he could return to work, pending his “appeal” of the Lodge Ban. The HR Rep said they would not, explaining “Our obligation is to provide housing and we do that through the camps”. In response to Mr. MacKay’s question about what he had to do in order to return to work, she explained:
At this time, there are no outstanding requisitions for you to fill. With your departure from the worksite due to the lodge ban, your position became vacant and required a replacement. We submitted a requisition and another member was brought up. With this said, should your ban be removed at some time in the future, you would have to follow up with the hall and go through the hiring process again for any requisition that may have been submitted for your trade.
In response, Mr. MacKay proposed that he proceed with the IME. The HR Rep said that the IME “would only be required should you receive the removal of the ban and should there be a position available for you to be dispatched for”.
[26] In February 2021, Mr. MacKay emailed the Lodge manager and other Civeo staff seeking to appeal his Lodge Ban. No one responded.
[27] On September 12, 2022, Civeo rescinded the Lodge Ban. There is no explanation before me about why.
B. JFJV
[28] While Mr. MacKay was working for BJM, JFJV issued him a security badge to allow him to be transported through the Project to the BJM worksite.
[29] Unbeknownst to Mr. MacKay at the time, BJM stopped housing its workers at the Lodge on November 8, 2020. Instead, from that point forward, its workers were housed at the Cedar Valley Lodge operated by a subcontractor of JFJV.
[30] JFJV says that, when Civeo implemented its Lodge Ban, it revoked Mr. MacKay’s access to the Project and put him on a “no access list” [Access Restriction]. It explains that “there was no purpose for the Complainant to have access to the Project or to have a security badge for the Project following receipt of the ban from Civeo for Sitka Lodge and the subsequent termination of his employment by BJM”.
[31] In February 2021, Mr. MacKay sent his appeal to overturn the Lodge Ban to JFJV. JFJV did not respond. From its perspective, it was not in a position to reverse Civeo’s Lodge Ban. It says that it never received a request from an employer to issue a security badge and/or house Mr. MacKay at the Cedar Valley Lodge.
[32] A few days after Civeo rescinded its Lodge Ban, JFJV removed Mr. MacKay’s name from its no access list. Again, there is no explanation before me about why.
III DECISION
[33] Civeo and JFJV ask the Tribunal to dismiss Mr. MacKay’s complaint on the basis that it has no reasonable prospect of success: Code, s. 27(1)(c) The onus is on the Respondents to establish the basis for dismissal.
[34] 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.
[35] 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 942at para. 77.
[36] 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.
[37] Many human rights complaints raise issues of credibility. This is not, by itself, a sufficient 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.
[38] Mr. MacKay has brought his complaint in the areas of employment and services: Code,ss. 8 and 13. To prove his complaint at a hearing, he will have to establish that:
a. he has disabilities protected by the Code;
b. Civeo’s Lodge Ban and JFJV’s Access Restriction adversely impacted him regarding his employment;
c. Civeo’s Lodge Ban and JFJV’s Access Restriction adversely impacted him regarding a service customarily available to the public; and
d. his disabilities were a factor in the adverse impacts.
Moore v. BC (Education),2012 SCC 61 at para. 33.
If Mr. MacKay proved the elements of his complaint, the burden would shift to the Respondents to justify the impact as a bona fideoccupational requirement (for employment) or bona fidereasonable justification (for services). This incorporates their duty to accommodate Mr. MacKay. If the impact is justified, there is no discrimination.
[39] The Respondents each argue that Mr. MacKay has no reasonable prospect of proving:
a. He had a disability protected by the Code;
b. He experienced an adverse impact “regarding employment” and, specifically, that their conduct was sufficiently connected to Mr. MacKay’s employment to come within s. 13 of the Code;
c. They provide services customarily available to the public, to come within s. 8 of the Code;and/or
d. His cannabis use was related to his disabilities, to make his disabilities a factor in any adverse impacts flowing from Civeo’s Lodge Ban or JFJV’s Access Restriction.
Civeo also argues, in the alternative, that it is reasonably certain to justify the Lodge Ban.
[40] I consider each of these arguments in turn.
A. Disabilities
[41] First, the Respondents argue that Mr. MacKay has no reasonable prospect of proving that he has disabilities protected by the Code.
[42] The Codedoes not define “disability”. The Tribunal interprets the term liberally to achieve the purposes of the Code: British Columbia Human Rights Tribunal v. Schrenk, 2017 SCC 62 [Schrenk] at para. 31. These purposes include removing barriers that people face in certain areas of social life because of their disabilities. Those barriers may arise from actual functional limitations associated with a disability, or society’s response to the disability. People with disabilities have long faced exclusion and marginalization based on stereotype, ignorance and fear: Eldridge v. British Columbia (Attorney General), [1997] 3 SCR 624. It is that exclusion and marginalization, founded on generalizations and prejudice, which the Codeseeks to eliminate.
[43] To decide whether a condition is a “disability”, the Tribunal generally considers the degree of impairment and any functional limitations, and any social construction of disability: Morris v. BC Rail,2003 BCHRT 14 at para. 214. It considers factors like “whether the condition entails a certain measure of severity, permanence and persistence”: Viswanathapuram v. Canadian Alliance of Physiotherapy Regulators, 2017 BCHRT 29 at para. 40.
[44] Mr. MacKay says his disabilities are chronic pain and insomnia. He has produced evidence that he suffered serious injuries in a motor vehicle accident in 2011, following which he was diagnosed with back and neck pain. He says that, since then, he has had chronic and persistent pain, particularly in his shoulder and lower back. He says that the pain makes it difficult to sleep and so he also suffers insomnia.
[45] Mr. MacKay says that he was initially prescribed opiates for the pain but that he did not like the side effects. With a doctor’s support, he says he began using cannabis to manage his pain. He says that cannabis does not cause him any unpleasant side effects and he can fine-tune his consumption to meet his needs. He says that the cannabis helps with his pain and his insomnia. During the period of the complaint, there is no dispute that Mr. MacKay’s doctor had prescribed him to use cannabis. That prescription was registered with Health Canada under the Cannabis Regulations.
[46] The Respondents argue that Mr. MacKay is required to produce medical evidence substantiating his claim of disability. Civeo argues that he has not provided “any medical evidence” to establish his disability. JFJV argues that “the only evidence supporting that the Complainant suffered from chronic pain or insomnia at the time of the events in question … is the Complainant’s own bare assertion”. Respectfully, I do not find these submissions persuasive.
[47] First, a complainant is not necessarily required to submit medical or expert evidence to prove a disability: Gichuru v. Purewal and another , 2017 BCHRT 19 at para. 275. A complainant’s sworn evidence about their own knowledge of their disability is not just a “bare assertion”: it is evidence that the Tribunal could rely on to make findings about their disabilities. For some kinds of disabilities – including, perhaps, pain and insomnia – the complainant may be in the best position to give evidence about their own condition. It does not necessarily require medical expertise to identify pain or inability to sleep. At a hearing, the Tribunal Member would be entitled to consider all of the evidence – including Mr. MacKay’s testimony – to decide whether he has conditions constituting a disability.
[48] Second, I do not agree that Mr. MacKay has not produced any “medical evidence” regarding his alleged disabilities. He has submitted three documents from doctors who treated him after his motor vehicle accident, which identify his ongoing “chronic symptoms” related to pain in his back, shoulder, and/or neck. He has also submitted a copy of his medical prescription for cannabis. A medical prescription is, presumably, related to a medical condition. Mr. MacKay explains that it was for his chronic pain and insomnia. This is some evidence supporting Mr. MacKay’s disabilities.
[49] Third, JFJV argues that some of the medical evidence “confusingly indicates” that Mr. MacKay is not using medical cannabis. Here, it is referring to the doctor’s statement that Mr. MacKay is not “taking any medication which may affect him in his position including medical marijuana”. One interpretation of this statement is – as JFJV argues – that Mr. MacKay is not taking medical cannabis. Another interpretation is the one that Mr. MacKay advances: that the doctor does not consider that Mr. MacKay’s medical cannabis use may affect him in his position.
[50] I am satisfied that Mr. MacKay has presented sufficient evidence at this stage to bring his claim of disability out of a realm of conjecture. He has identified medical conditions – chronic pain and related insomnia – that he says have been ongoing for nearly ten years, which impact his wellbeing and require ongoing attention and treatment. As he points out, the Tribunal has previously accepted that chronic pain and insomnia may constitute disabilities for the purposes of the Code: Brown v. Bechtel Canada and another, 2016 BCHRT 170 at para. 6; Vanderveen v. Heritage Steel Sales,2019 BCHRT 132 at para. 30; Hyggen v. Teck Coal and others, 2020 BCHRT 34 at paras. 73-74; McConnell v. School District No. 8,2014 BCHRT 239 at para. 59. I am not persuaded that Mr. MacKay has no reasonable prospect of proving at a hearing that he is protected from discrimination on the basis of disability.
B. Adverse impact in employment
[51] Next, the Respondents argue that Mr. MacKay has no reasonable prospect of proving that the Lodge Ban (Civeo) and Access Restriction (JFJV) adversely impacted him regarding his employment.
[52] To begin, there is no dispute that Mr. MacKay was in an employment relationship with BJM. As such, he was an “employee” protected from discrimination in his employment: McCormick v. Fasken Martineau DuMoulin LLP, 2014 SCC 39.
[53] There is also no dispute that Mr. MacKay was not in an employment relationship with either Respondent. It is not necessary to address the Respondents’ arguments which apply the McCormickanalysis of control and dependency to these relationships, because Mr. MacKay is not claiming that he was in an employment relationship with the Respondents.
[54] In this case, the relevant legal principles are set out in Schrenk. There, the Supreme Court of Canada held that persons outside the employment relationship can discriminate “regarding employment” where their conduct has a sufficient nexus to the employment context: para. 67. To make this determination, the Tribunal must conduct a contextualanalysis considering all relevant circumstances. Relevant factors may include:
(1) whether the respondent was integral to the complainant’s workplace; (2) whether the impugned conduct occurred in the complainant’s workplace; and (3) whether the complainant’s work performance or work environment was negatively affected. [para. 67]
In Schrenk,for example, the Court found that a foreman employed by a different company could discriminate regarding the complainant’s employment because he was “an integral and unavoidable part” of the work environment and his discriminatory behaviour had a “detrimental impact on the workplace”: para. 69.
[55] I begin with Mr. MacKay’s allegation that Civeo’s Lodge Ban discriminated against him regarding his employment.
1. Civeo
[56] I am not persuaded that Mr. MacKay has no reasonable prospect of proving that Civeo’s Lodge Ban was sufficiently connected to his employment. There is evidence before me that:
a. Civeo contracted with Mr. MacKay’s employer, BJM, to provide accommodations to its employees;
b. Between May 2020 until November 8, 2020, Mr. MacKay was required or expected by his employer to live at the Lodge;
c. Mr. MacKay’s employer expected him to follow the Lodge Rules;
d. A representative of Mr. MacKay’s employer was present, alongside Civeo, during the canine search of his room;
e. BJM determined that Mr. MacKay could not return to work until Civeo’s Lodge Ban was lifted; and
f. As a result of the Lodge Ban, JFJV placed Mr. MacKay on its no-access list for the Project.
[57] At a hearing, this evidence may be sufficient to prove that Civeo was integral to Mr. MacKay’s workplace and that its Lodge Ban negatively impacted Mr. MacKay’s employment, by initially requiring him to take a leave and then effectively ending it. Taken together, and on the whole of the evidence before me, I am satisfied that Mr. MacKay has taken the allegation that the alleged discriminatory conduct of Civeo (the Lodge Ban) has a sufficient nexus with the employment context, out of the realm of conjecture.
[58] I do not find Civeo’s other arguments persuasive. Civeo disputes that Mr. MacKay’s employment ended because of the Lodge Ban. First, it argues that Mr. MacKay could have secured other accommodation to continue working for BJM. As I have said, there is some dispute about this in the material before me. However, even accepting this is true, there is no dispute that this would have been at Mr. MacKay’s own expense, requiring him to incur a cost not borne by employees who are housed in BJM’s camps. In other words, the impact of the Lodge Ban could still amount to an adverse impact regarding Mr. MacKay’s employment.
[59] Second, Civeo argues that – regardless of the Lodge Ban – Mr. MacKay could not return to work with BJM until he completed an IME. This may be true, however the evidence before me is that BJM told Mr. MacKay that the first step to returning to work was to have the Lodge Ban rescinded, after which he would also have to complete an IME. This is sufficient to raise Mr. MacKay’s allegation that the Lodge Ban adversely impacted his employment out of a realm of conjecture.
[60] Finally, Civeo argues that it could not have discriminated against Mr. MacKay after November 8, 2020, which is when it ceased providing accommodation for BJM’s employees. However, Mr. MacKay has produced evidence that: (1) the Lodge Ban continued in effect past November 8, and (2) BJM continued to cite the “camp ban” as a barrier to his re-employment, as late as February 2021. At a hearing, the burden will be on Mr. MacKay to prove that the Lodge Ban continued to adversely impact him regarding employment past the point when BJM workers were housed at the Lodge. It will be open to Civeo to argue about how the fact that it ceased providing accommodation after November 8 impacts liability and remedy. At this preliminary stage, the burden is on Civeo to prove Mr. MacKay has no reasonable prospect of proving that the Lodge Ban adversely impacted him regarding employment throughout the period of the complaint. Given the above evidence, I am not satisfied it has done so.
[61] In sum, the evidence before me could support that Civeo was an integral part of Mr. MacKay’s workplace, with the power to interfere with his work environment or performance of work. This is enough to take Mr. MacKay’s argument that Civeo discriminated against him regarding his employment with BJM out of the realm of conjecture. I decline to dismiss his allegation under s. 13 of the Code.
2. JFJV
[62] Similarly, there is evidence to support that JFJV was an integral part of Mr. MacKay’s workplace. It controlled access to the Project, and – after November 8, 2020 – housed BJM’s employees. This suggests that, after November 8, BJM’s reference to the “camp ban” could have been in reference to JFJV’s Access Restriction. In order to work, Mr. MacKay required access to the Project that could only be granted by JFJV. At this preliminary stage of the complaint, this is sufficient to bring Mr. MacKay’s allegation that JFJV’s Access Restriction adversely impacted him regarding his employment out of a realm of conjecture.
[63] JFJV says it was not at all involved in Civeo’s Lodge Ban. At the same time, it says that it revoked Mr. MacKay’s access to the Project as a result of the Lodge Ban and then, when the Ban was lifted, removed Mr. MacKay’s name from its no-access list. The Respondents have not sufficiently explained how the Lodge Ban and Access Restriction were connected, or not. There is, if nothing else, a temporal connection.
[64] JFJV says that it put Mr. MacKay’s name on the no-access list because he had no reason to be at the Project in circumstances where he was not employed by any company working on the Project. However, I am not satisfied this is a complete explanation at this stage. Presumably JFJV’s no-access list does not include the name of every person who does not work on the Project. It must have some meaning beyond that. In addition, Mr. MacKay’s name was removed from the list at a time when he still was not working at the Project. BJM continued to cite a “camp ban” as a barrier to Mr. MacKay’s reemployment as late as February 2021, when its workers were housed at a JFJV space and required Project access.
[65] In these circumstances, I am not persuaded that Mr. MacKay’s allegation that JFJV’s conduct has a sufficient nexus with the employment context has no reasonable prospect of success.
C. Adverse impact in services
[66] Next, the Respondents argue that Mr. MacKay has no reasonable prospect of proving that they provide services customarily available to the public. They argue that they provide purely “private” services and, as such, are not bound by the Code’s prohibition against discrimination in services: s. 8.
[67] The Codedoes not regulate all the private activities of people in BC: University of British Columbia v. Berg, [1993] 2 SCR 353, at para. 9; Stark v. Dawson Creek Pottery Guild and others, 2018 BCHRT 188 at para 31.To fall within s. 8 of the Code , the activity alleged to be discriminatory must “be a service, customarily available, and customarily available to the public”: British Columbia v. Crockford, 2006 BCCA 360 at para. 78. 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”: Gould v. Yukon Order of Pioneers , [1996] 1 SCR 571 at para. 58.
[68] Here, there does not appear to be a dispute about the services that the Respondents provide. They provide lodging to personnel employed by their clients. JFJV also provides access to the Project.
[69] The issue is whether the relationship between the Respondents and Mr. MacKay is a public one or a private one, within the meaning of the Code.That is an issue to be decided at a hearing on the merits. At this stage, the question for me to decide is whether Mr. MacKay has no reasonable prospect of establishing the Respondents provide services customarily available to the public. I begin with Civeo.
3. Civeo
[70] There is no dispute that Mr. MacKay stayed at the Lodge while he was working between May 2020 and September 9, 2020. Civeo argues that:
… the Lodge is a small private venue, which accommodates onlythe workers of its contracted clients and approved contractors of its clients. The Lodge is not open to the general public or to individuals that are not employed by Civeo’s clients to work on specific projects, and thus does not come within an area protected by the Code.
[71] Respectfully, this argument does not persuade me that Civeo is reasonably certain to prove at a hearing that the allegations against it do not engage s. 8 of the Code.As the Supreme Court of Canada has pointed out, no service is “absolutely available to everyone who desires it”: Bergat para. 54. Rather, “Every service has its own public, and once that ‘public’ has been defined through the use of eligibility criteria, [human rights legislation] prohibits discrimination within that public”: Bergat para. 55. The import of Civeo’s submission is simply to clarify that its public is limited to people employed by Civeo’s clients.
[72] The Supreme Court of Canada has said that the Codeis intended to regulate organizations that “deal with livelihood and economic relationships but not social or cultural ones”: Gouldat para. 12. In Gould,the Court conceptualized organizations as ranging across a spectrum from the purely economic (to which s. 8 clearly applies) to the purely social (to which s. 8 does not apply): at para. 14; see also Buntain v. Marine Drive Golf Club, 2007 BCCA 17 at para. 45. Organizations on the social end include, for example, religious or cultural groups. In Buntain,the Court found that a private golf club did not create a “public” relationship with its members so as to fall within the ambit of s. 8. It held that the golf club was closer to the “purely social” end of the spectrum, and that the nature of its relationship with its users indicated a private, not a public, relationship: para. 49.
[73] Mr. MacKay argues that, unlike the golf club in Buntain, Civeo’s services are purely economic. It contracts with companies to lodge their workers. This is not a social or cultural relationship, like the golf club in Buntain.Once the workers are eligible to stay at the Lodge, they become the “public” served by Civeo. The relationship is a public, not a private one. I cannot say at this stage that this argument, grounded in the law and evidence before me, has no reasonable prospect of success.
[74] Civeo argues that, after September 9, Mr. MacKay was no longer part of its public because he was not working for BJM. It argues: “Regardless of the Sitka Lodge ban … the Complainant had no ability to stay at the Sitka Lodge, as he was not performing work for his Employer on the project”. This argument overlooks the reason that Mr. MacKay says that he was not able to work for BJM: because of the Lodge Ban. At a hearing, he could argue that the Lodge Ban continued to adversely impact him regarding Civeo’s services after he stopped working for BJM. The evidence before me – particularly the evidence of Mr. MacKay’s communications with BJM – takes this argument beyond speculation.
[75] In sum, I am not persuaded that Mr. MacKay has no reasonable prospect of proving that Civeo was providing him a service customarily available to the public and, in doing so, was required not to discriminate under s. 8 of the Code.In this context, he may be able to establish at a hearing that the Lodge Ban adversely impacted Mr. MacKay’s access to Civeo’s services.
4. JFJV
[76] The same analysis applies to the services of JFJV.
[77] First, JFJV emphasises that it manages a “private facility” on “private property”. Respectfully, this submission is not especially helpful. The same could be said of any business operating in the province. The Codeapplies to private actors, including employers, landlords, and service providers, and regulates their conduct on their private property.
[78] Next, like Civeo, JFJV argues:
… the workplace accommodations provided at [Cedar Valley Lodge] were exclusively available to pre-approved subcontractors to house their employees and independent contractors dispatched to work on the Project. [Cedar Valley Lodge] accommodations are private – not public – as the Complainant could not have simply chosen to reside there in a manner similar to booking a hotel.
In my view, this argument simply defines the “public” that is customarily served by JFJV. The question is whether Mr. MacKay may be able to prove that he was a member of this public during the period of the complaint.
[79] During the period when JFJV was providing lodging and site access to BJM workers, Mr. MacKay was not employed by BJM. There is merit, then, to JFJV’s argument that it was not in a public relationship with Mr. MacKay during this time.
[80] At the same time, by JFJV’s own admission, it had placed Mr. MacKay on a no-access list during this period. As I have said, Mr. MacKay has presented evidence that his employer required him to have access to the Project and lodging in order to return to work – access that, as I understand it, may only have been available through JVJF. In addition, JFJV’s access restriction could, at a hearing, amount to a denial of service.
[81] I emphasise that the task before me is to decide whether to dismiss Mr. MacKay’s complaint without a hearing and that the threshold to advance the complaint to a hearing is low. In my view, there is some evidence capable of supporting his allegation that JFJV’s Access Restriction adversely impacted him respecting its services. In other words, he has taken this allegation out of a realm of conjecture.
D. Connection to disabilities
[82] Finally, Mr. MacKay will have to prove a connection between his disabilities and the Lodge Ban and Access Restriction. His disabilities do not have to be the only or overriding factor; he need only prove that they were one factor: Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Bombardier Inc. (Bombardier Aerospace Training Center), 2015 SCC 39 at para. 52. I am satisfied he has taken this element of his complaint out of the realm of conjecture.
[83] There is no dispute that Civeo issued its Lodge Ban because Mr. MacKay was in possession of cannabis product and vape pen. Regarding JFJV, there is evidence that it issued the Access Restriction at least in part because of the cannabis-related Lodge Ban.
[84] Mr. MacKay says that he used the cannabis to treat his disabilities; it was his medicine. This is supported by his medical prescription and the evidence relating to his disabilities, which I have outlined above. At a hearing, this may be sufficient to prove a connection between his disabilities and the Lodge Ban and Access Restriction. At this stage, it takes the connection out of a realm of conjecture.
[85] In sum to this point, the Respondents have not persuaded me that Mr. MacKay has no reasonable prospect of proving the elements of his case. I turn finally to Civeo’s argument regarding justification.
E. Justification (Civeo)
[86] Civeo argues very briefly that, even if Mr. MacKay proves the elements of his complaint, his complaint will not succeed because it is reasonably certain to justify the Lodge Ban as a bona fideoccupational requirement (for employment) or bona fidejustification (for services). To establish this defence, Civeo will have to prove:
a. A valid purpose: it adopted the no-cannabis rule for a purpose rationally connected to its function.
b. Good faith: it adopted the no-cannabis rule in an honest and good faith belief that it was necessary to fulfil its valid purpose.
c. Reasonable necessity and accommodation: the no-cannabis rule was reasonably necessary to accomplish its purpose and it fulfilled its duty to accommodate Mr. MacKay.
British Columbia (Public Service Employee Relations Commission) v. British Columbia Government and Service Employees’ Union (Meiorin Grievance), [1999] 3 SCR 3 [Meiorin]; British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights), [1999] 3 SCR 868 [Grismer] at para. 20; Ciliberto v. Tree Island Industries Ltd ., 2024 BCHRT 87 at para. 27
[87] To begin, Civeo does not address the first two elements of the justification analysis at all. In the absence of any evidence or submission, I cannot conclude that it is reasonably certain to prove these factors.
[88] Civeo’s submissions focus exclusively on the duty to accommodate, under the third part of the justification analysis. It says that it was not in a position to evaluate Mr. MacKay’s request for accommodation; this fell solely to BJM as the employer. It argues that, by the time that Civeo was aware that Mr. MacKay was seeking an accommodation, it was no longer housing BJM workers. Finally, it argues that Mr. MacKay failed to bring forward the relevant facts by declining initially to participate in an IME.
[89] These submissions are insufficient to support early dismissal of Mr. MacKay’s complaint. Civeo was applying its own rules to issue the Lodge Ban. It is not clear to me why it would not also be in a position to explore accommodation in the application of those rules. Mr. MacKay has presented evidence that, immediately after the cannabis was found, he offered to provide Civeo with a medical prescription – which was at least some indication that his possession of cannabis may have been disability-related. It seems undisputed that Civeo never asked Mr. MacKay about that prescription or provided him with any information about how to pursue an accommodation. Civeo’s letter setting out the Lodge Ban does not indicate that Mr. MacKay may be accommodated via his employer. The communications from Mr. MacKay’s employer referred him back to Civeo to have the ban lifted. Finally, it is not clear on the material before me how the employer’s request for an IME relates to Civeo’s obligations in an accommodation process.
[90] Considering all the material before me, I am not reasonably certain that Civeo will justify the Lodge Ban at a hearing. I decline to dismiss the complaint on this basis.
IV CONCLUSION
[91] My decision not to dismiss this complaint is not an indication that it will be successful. At a hearing, the Respondents can advance their arguments and evidence about their relationship with, and responsibilities towards, Mr. MacKay under the Human Rights Code.At this interim stage of the Tribunal’s process, my decision is simply that Mr. MacKay’s allegations warrant a hearing so that the Tribunal can make a final determination on the merits of the complaint.
[92] The Respondents’ applications to dismiss this complaint under s. 27(1)(c) of the Codeare denied. The complaint will be scheduled for a hearing.
Devyn Cousineau
Vice Chair
Human Rights Tribunal