Hainz v. Cascades Containerboard Packaging – Richmond, a division of Cascades Canada ULC, 2024 BCHRT 277
Date Issued: October 2, 2024
File: CS-005302
Indexed as: Hainz v. Cascades Containerboard Packaging – Richmond, a division of Cascades Canada ULC, 2024 BCHRT 277
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:
Shaune Hainz
COMPLAINANT
AND:
Cascades Containerboard Packaging – Richmond, a division of Cascades Canada ULC
RESPONDENT
REASONS FOR DECISION
APPLICATION TO DISMISS A COMPLAINT
Section 27(1)(c) and (f)
Tribunal Member: Jonathan Chapnick
Agent for the Complainant: Melissa Wilson Hainz
Counsel for the Respondents: Jennifer Koschinsky
I INTRODUCTION
[1] On March 25, 2021, Shaune Hainz filed a human rights complaint against Cascades Containerboard Packaging – Richmond, a division of Cascades Canada ULC [Cascades]. He alleges discrimination in employment based on physical disability in contravention of s. 13(1) of the Human Rights Code. This decision is not about whether Cascades discriminated; it is about whether Mr. Hainz’s complaint should be dismissed without a hearing.
[2] Mr. Hainz has worked for Cascades at a unionized containerboard packaging plant for over 20 years. The terms and conditions of his employment are set out in a collective agreement. In 2018, Mr. Hainz was diagnosed with a progressive chronic health condition requiring periodic medical care followed by time for recovery involving medical leave and a gradual return-to-work. Mr. Hainz’s human rights complaint centres on two instances in 2020-2021 when he alleges that Cascades prevented him from returning to work even though he had medical clearance to do so. The first instance involved a workplace policy related to the COVID-19 pandemic. The second instance involved a compulsory pre-return-to-work medical examination. Mr. Hainz says Cascades discriminated and failed to accommodate him in both instances.
[3] Cascades denies discriminating and applies to dismiss Mr. Hainz’s complaint without a hearing. It says the complaint should be dismissed under s. 27(1)(f) of the Code because its substance was dealt with through the grievance process under the collective agreement. Further, Cascades says the complaint should be dismissed under s. 27(1)(c) because it has no reasonable prospect of success. It says Mr. Hainz cannot make his case, and, even if he could, Cascades would be reasonably certain to establish a defence.
[4] For the reasons that follow, I find that the first part of the complaint, related to the COVID policy, has no reasonable prospect of success. I dismiss that part of the complaint under s. 27(1)(c). However, I decline to dismiss the second part of the complaint, related to the pre-return-to-work medical examination. I am not persuaded that the substance of this part of the complaint was appropriately dealt with in another proceeding under s. 27(1)(f), and I am not satisfied that it has no reasonable prospect of success. This part of the complaint will proceed to a hearing.
[5] To make my decision, I have considered all the information filed by the parties. In my reasons, however, I only refer to what is necessary to explain what I decided, and I make no findings of fact.
II BACKGROUND
[6] The following information is drawn from the materials provided by the parties. It is set out here as background, not as findings of fact. It is not meant to be an exhaustive summary of all the information before me.
[7] Mr. Hainz has worked for Cascades since 2000. His position involves operating heavy machinery and requires physical exertion. He typically works eight-hour shifts, five days a week. His spouse, Melissa Wilson Hainz, also works for Cascades. Beginning in 2018, Mr. Hainz was absent from work on several occasions in relation to his chronic health condition. For example, he was absent for a roughly 11-week period between October 2018 and January 2019, for a roughly four-week period between December 2019 and January 2020, and for a roughly three-week period between January and February 2020. Each of these absences was followed by a graduated return-to-work plan [GRTW] recommended by Mr. Hainz’s family physician, which involved a reduced shift schedule and shorter work hours on a temporary basis. I will refer to Mr. Hainz’s family physician as “Dr. M” in this decision.
[8] In mid-March, 2020, in response to the COVID-19 pandemic, Cascades introduced a policy requiring employees with severe chronic health conditions to stay home until further notice [COVID Policy]. Mr. Hainz was on medical leave when the COVID Policy was introduced. He says Dr. M cleared him to return to work on April 6, but Cascades refused his return because of the policy. Cascades denies this. Its human resources manager [HR Manager] says Cascades never enforced the policy against Mr. Hainz; rather, a March 31 medical note from Dr. M stated that Mr. Hainz was unable to return until further notice due to his supressed immune system.
[9] On April 17, Mr. Hainz’s union, Unifor Local 433 [Union], filed a grievance alleging that Cascades had ordered Mr. Hainz to stay home due to the COVID Policy [First Grievance].
[10] Cascades withdrew the COVID Policy in June 2020 and the Union eventually withdrew the First Grievance.
[11] In a June 27 medical note, Dr. M said Mr. Hainz needed to remain off work for at least an additional three to six months due to his health condition. In an October 2 medical form, Dr. M indicated that Mr. Hainz could begin a GRTW on October 20, under which he would initially work four-hour shifts.
[12] At some point in the summer or fall of 2020, the Union wrote to Dr. M regarding the First Grievance. In its letter to Dr. M, the Union said it was trying to obtain remedies for Mr. Hainz and to do so it needed to establish that there was nothing preventing Mr. Hainz from returning to work after April 6. In her response letter to the Union, dated October 27, Dr. M wrote that, “If it were not for the [COVID Policy], there was no other reason that would have prevented Shaune from returning to work on his expected return-to-work date of April 6, 2020.” Dr. M went on to suggest that, other than during a two- or three-week planned medical absence beginning on May 20, Mr. Hainz’s health had not precluded him from working between April 6 and June 27. The HR Manager says this letter directly contradicted Dr. M’s previous medical notes. It is not clear to me how or when Cascades obtained this letter.
[13] The HR Manager says Mr. Hainz was “unable to successfully complete a full 4 hour shift” under his October 20 GRTW and took another medical leave in December 2020.
[14] On January 8, 2021, Cascades’ senior medical advisor [Medical Advisor] emailed the HR Manager and recommended Mr. Hainz undergo a medical examination with a specialist before being allowed back to work. The Medical Advisor stated, in part, as follows:
We will have to refuse his return until we get a clearer view of his global health situation. … The last time he came back to work, he could not accomplish one single complete shift, so we must be careful this time. If his limitations are too important and that … causes issues in having him back, we will need to address this situation and make decisions about his ability to perform his job in a short-medium term. I understand that your [collective agreement] encourages accommodation, but in this situation, limitations will probably be permanent or at least on the long term.
[15] In a reply email the next day, the HR Manager queried how a medical examination of this nature would benefit the situation. He said Cascades already knew Mr. Hainz had a progressive health condition that could only be corrected through a surgical process for which Mr. Hainz continued to wait. He noted that, when Mr. Hainz “returns to work the only restrictions he has are hours worked, he does not have any physical restrictions.” He also stated that the “last time [Mr. Hainz] returned to work he did complete the schedule that was assigned to him but you are right he did not complete a full 8 hours.” Nevertheless, the HR Manager says Cascades had contacted its disability insurance administrator, Blue Cross, on January 8 to schedule the medical examination.
[16] In a January 9 medical note, Dr. M indicated that Mr. Hainz could begin a GRTW on January 12. Cascades subsequently told Mr. Hainz that it was postponing his return. On January 12, the Union filed a grievance alleging that Mr. Hainz was being denied his doctor-approved return-to-work [Second Grievance].
[17] In an email to Mr. Hainz on January 15, Blue Cross confirmed that his return-to-work had been refused because Cascades needed a clearer view of his global health situation and wanted to ensure his eventual return would be safe. Blue Cross said it would be coordinating a medical examination by a specialist and inquired about Mr. Hainz’s availability.
[18] The medical examination took place on March 8 and the specialist report was issued on March 15. It concluded that Mr. Hainz could return to work with regularly scheduled absences every three months for medical procedures and “a few days to two weeks” of recovery time. The HR Manager says that, upon receiving the report, Cascades promptly arranged Mr. Hainz’s return-to-work, which ultimately took place on May 6. He says Cascades made Mr. Hainz whole by paying him for the wages he lost between January 12 and May 6, at which point the Union considered the Second Grievance to be resolved.
III DECISION
[19] Cascades received permission to file its 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.
[20] Through the Case Path Pilot, Cascades was granted permission to file a dismissal application under ss. 27(1)(c) and/or (f). In the dismissal application before me, however, Cascades also argues for the complaint’s dismissal under s. 27(1)(d)(ii). I decline to consider these arguments, because they were put forward against the Tribunal’s clear instructions. There is nothing before me to explain or justify Cascades’ 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 Cascades’ application under ss. 27(1)(c) and (f).
[21] There are three issues that I must decide in this dismissal application:
a. Should I dismiss the complaint (or a part of it) under s. 27(1)(c) because Mr. Hainz has no reasonable prospect of making his case?
b. Should I dismiss the complaint (or a part of it) under s. 27(1)(c) because Cascades is reasonably certain to establish a justification defence?
c. Should I dismiss the complaint (or a part of it) under s. 27(1)(f) because its substance was appropriately dealt with in the grievance process?
[22] I will address these issues in turn.
A. Should I dismiss the complaint (or a part of it) under s. 27(1)(c) because Mr. Hainz has no reasonable prospect of making his case?
[23] 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 onus is on Cascades to establish that Mr. Hainz’s complaint should be dismissed under s. 27(1)(c): Paulsen v. BC Hydro and another , 2020 BCHRT 75 at para. 11. To meet this onus, it must show me that either (1) Mr. Hainz has no reasonable prospect of proving the elements of his complaint, or (2) Cascades is reasonably certain to establish a defence: Lado v. Hardbite Chips and others, 2019 BCHRT 134 at para. 25.
[24] To make his case at a hearing, Mr. Hainz 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. Cascades concedes that Mr. Hainz had a disability, but disputes his ability to prove the second and third elements of his case.
[25] Cascades says the complaint alleges adverse impacts related to Mr. Hainz’s delayed return to work in two instances: (1) in April 2020, following its introduction of the COVID Policy, and (2) in January 2021, when it postponed his return pending the results of a disability-related pre-return-to-work medical examination on March 8, 2021 [Medical Exam].
1. Delay beginning in April 2020
[26] Cascades argues that the evidence shows that the first delay, in April 2020, was the result of his health condition and Dr. M’s orders, not the COVID Policy. It says Dr. M’s March 31 medical note clearly stated that Mr. Hainz was unable to return to work until further notice due to the COVID-19 pandemic. It says Mr. Hainz confirmed Dr. M’s orders in an April 13, 2020 application for short-term disability benefits, in which he indicated that he was following public health recommendations to stay home and had been directed to quarantine by Dr. M, starting on April 6, 2020 and ending “TBD” (i.e., to be determined). Cascades says it never inquired with Mr. Hainz about whether the COVID Policy applied to him; rather, Dr. M decided Mr. Hainz was medically unable to work, and Cascades deferred to that decision. Cascades says Dr. M never referenced the COVID Policy in her medical notes and did not clear Mr. Hainz to return to work until October 2020, at which point Cascades allowed him to come back.
[27] In response, Mr. Hainz seems to abandon the part of his complaint related to the COVID Policy, stating that he agrees that the matter is “deemed to be resolved” as it relates to him. Regardless, even if Mr. Hainz has not abandoned this part of his complaint, I am persuaded that it has no reasonable prospect of success. I acknowledge Dr. M’s assertions, in her October 2020 letter to the Union, that the COVID Policy was the sole barrier to Mr. Hainz’s return-to-work in the months prior. However, these assertions are contradicted by the contemporaneous documentary evidence before me as to the reason Mr. Hainz’s return-to-work was delayed beginning in April 2020. There is no indication in this evidence that Cascades prevented Mr. Hainz’s return pursuant to its COVID Policy. Rather, the evidence supports a different explanation for what happened, namely that Mr. Hainz stayed home between April and October 2020 on the medical advice of his doctor. I am satisfied that Mr. Hainz has no reasonable prospect of proving otherwise at a hearing. The part of his complaint alleging that his return-to-work was delayed because of the COVID Policy is therefore dismissed under s. 27(1)(c).
2. Delay beginning in January 2021
[28] In its dismissal application, Cascades broadly asserts that Mr. Hainz “has neither experienced an adverse impact nor established any connection between the supposed adverse impact and his illness.” However, Cascades’ specific arguments regarding Mr. Hainz’s chances of making his case only address the first delay, involving the COVID Policy; they do not address the second delay, related to the Medical Exam. For the following reasons, I am not satisfied that Mr. Hainz has no reasonable prospect of making his case in relation to the second delay.
[29] It is not disputed that Mr. Hainz had a disability. Nor is it disputed that Cascades required him to attend the disability-related Medical Exam and delayed his return-to-work pending its results, despite a medical note from Dr. M saying he could begin a GRTW. The question before me relates to Mr. Hainz’s chances of proving that these circumstances amounted to or resulted in a disability-related adverse impact.
[30] Mr. Hainz says Cascades denied him the opportunity to work because of his disability, despite receiving medical clearance from his doctor. He says this was a breach of his human rights. His evidence is that he felt healthy, wanted to go back to the workplace, and had been cleared by Dr. M to do so. He did not want to attend the Medical Exam, and he did not want to wait for its results before returning to work. In my view, at a hearing, this evidence could support a finding that Mr. Hainz experienced a disability-related adverse impact in the form of being forced to attend an unwanted medical assessment and being prevented from working at his job. Cascades has not shown me that Mr. Hainz has no reasonable prospect of proving this. The compensation provided for Mr. Hainz’s wage loss goes to the issue of remedy, not adverse impact.
B. Should I dismiss the complaint (or a part of it) under s. 27(1)(c) because Cascades is reasonably certain to establish a justification defence?
[31] My reasons above do not end the analysis under s. 27(1)(c). Cascades argues that, even if Mr. Hainz can make his case, it is reasonably certain to establish a defence because its actions were based on bona fide requirements and it accommodated Mr. Hainz to the point of undue hardship.
[32] Section 13(4) of the Codeprovides a justification defence against a complaint of discrimination in cases where a workplace “standard” (i.e., a rule, requirement, policy, procedure, practice, norm, course of action, etc.) adversely impacts an employee in relation to a protected characteristic: Ciliberto v. Tree Island Industries Ltd., 2024 BCHRT 87 at para. 27. This defence is sometimes referred to as the “ bona fide occupational requirement [BFOR] defence” because of the language of s. 13(4), which precludes the application of s. 13(1) “with respect to a refusal, limitation, specification or preference based on a bona fide occupational requirement.”
[33] At a hearing, if an employee is able to prove the elements of their case, the burden shifts to the respondent – typically the employer – to justify the adverse impact. If the employer succeeds in doing so, there is no discrimination: Smith v. Sobeys Inc., 2023 BCHRT 138 at para. 30; see Hydro-Québec v. Syndicat des employé-e-s de technique professionelles et de bureau d’Hydro-Québec, section locale 2000 (SCFP-FTQ) , 2008 SCC 43 at para. 18. To succeed in its justification defence, the employer must prove three things:
a. A valid purpose. The employer must prove it adopted the standard for a purpose rationally connected to the performance of the employee’s job or function.
b. Good faith. The employer must prove it adopted the standard in an honest and good faith belief that it was necessary to fulfil its valid purpose.
c. Reasonable necessity and accommodation. The employer must prove that the standard was reasonably necessary to accomplish its purpose and that it discharged its duty to accommodate: British Columbia (Public Service Employee Relations Commission) v. British Columbia Government and Service Employees’ Union (Meiorin Grievance) , 1999 CanLII 652 (SCC), [1999] 3 SCR 3 at para. 54 [Meiorin]; Ciliberto at para. 27.
[34] I have already decided to dismiss the part of the complaint that is about the COVID Policy, so I need only consider Cascades’ justification defence as it relates to the part of the complaint involving the Medical Exam.
[35] Cascades says the Medical Exam was a BFOR. It describes the Medical Exam as an independent medical examination, which “provides a neutral, third-party opinion on the global picture of an employee’s fitness to work.” I take this to be Cascades’ description of the return-to-work standard it applied to Mr. Hainz.
[36] At a hearing, the Tribunal’s first task in its justification analysis would be to determine what this return-to-work standard was generally meant to achieve: Meiorinat para. 57. This determination is made on the basis of the available evidence: see Gordy v. Painter’s Lodge (No. 2) , 2004 BCHRT 225 at paras. 104-107; see also Meiorinat paras. 24-27. Cascades says its goal was “maintaining safety and accommodating Mr. Hainz.” In these reasons, I will assume, without deciding, that Cascades adopted its return-to-work standard in good faith and for the valid purpose of maintaining safety and accommodating Mr. Hainz.
[37] The remaining question, then, is whether Cascades is reasonably certain to establish the third element of its justification defence. At a hearing, the onus would be on Cascades to prove that the return-to-work standard was reasonably necessary to accomplish its purpose, and that it accommodated Mr. Hainz to the point of undue hardship: Meiorin at para. 54.
[38] In this regard, Cascades says that it needed the Medical Exam “to assess the global picture of Mr. Hainz’s health, and to better understand his accommodations going forward.” It says it decided the Medical Exam was needed based on the following factors: the Medical Advisor recommended it; Dr. M’s medical notes were contradictory; Mr. Hainz’s periodic and prolonged absences; his ongoing struggles with his GRTWs; his inability to work a full shift under his most recent GRTW, which had been recommended by Dr. M; and the overall seriousness of his health condition, considered in light of his physically demanding job and concerns regarding his safety. Cascades argues that its course of action was part of a multi-year effort to accommodate Mr. Hainz. It says “nearly four years had passed with intermittent absences from work,” and so it needed the Medical Exam “to determine whether Mr. Hainz was capable of continuing to safely do his job” and to “comprehensively understand his long-term accommodation needs.”
[39] Cascades acknowledges that Dr. M had cleared Mr. Hainz to return on January 12, 2021. However, it says it had legitimate worries at that time regarding Dr. M’s advice, given the prior inconsistencies in her communications and because her previous GRTW recommendations had been unsuccessful. Under the circumstances, Cascades says it would have been unreasonable and irresponsible to rely solely on Dr. M’s medical advice. As a result, it says it promptly arranged the Medical Exam “as an independent means of understanding and accommodating Mr. Hainz’s illness.” It says it “made every effort to accommodate Mr. Hainz’s illness and continued such accommodations,” making “every decision with Mr. Hainz’s wellbeing as a top priority.” It says that, when the results of the Medical Exam confirmed Mr. Hainz’s fitness to work, it readily welcomed him back on a GRTW and compensated him for lost wages.
[40] Cascades has put forward detailed evidence and argument to explain its return-to-work standard and justify what happened in early 2021. It says Mr. Hainz’s complaint “will surely fail given the reasonable certainty of this defence.” On the evidence before me, I am unable to agree.
[41] Mr. Hainz alleges an adverse impact in the form of being forced to attend the Medical Exam and being prevented from returning to work despite having received medical clearance to do so. To justify this adverse impact at a hearing, Cascades would need to prove that it could not have done anything else reasonable or practical to avoid it: Mooreat para. 49; Meiorinat para. 38. This would involve showing that it properly explored reasonable alternatives to its return-to-work standard: see generally Meiorinat paras. 38-65; see Purdy v. Douglas College and others, 2016 BCHRT 117 at para. 63. While I do not rule out the possibility that Cascades could meet this burden, on the materials put forward by the parties, I am unable to conclude it is reasonably certain to do so. In my view, there are shortfalls in the evidence before me regarding key considerations under the third part of the justification analysis.
[42] First, while I appreciate that Mr. Hainz operated heavy machinery and his position required physical exertion, there is only impressionistic evidence before me regarding the safety risks allegedly posed by his return-to-work in January 2021. This type of evidence is generally not sufficient to establish a justification defence: see British Columbia (Superintendent of Motor Vehicles) British Columbia (Council of Human Rights) , [1999] 3 S.C.R. 868 [Grismer] at paras. 31 and 41; see generally Gordy. And even it were, there is no evidence before me as to why those risks could not have been satisfactorily mitigated through accommodative measures: see generally Grismer; see also Gordy at paras. 156-158.
[43] Second, Cascades’ evidence is that it was concerned about following Dr. M’s recommendations in January 2021, given the prior inconsistencies in her communications and because her previous GRTWs had been unsuccessful. It does not necessarily follow, however, that a medical assessment in the nature of the Medical Exam was reasonably needed to get Mr. Hainz back to work safely and productively at that time. Did Cascades properly consider reasonable alternatives that may have gotten Mr. Hainz back to work sooner? The evidence (particularly the January 2021 email exchange between the Medical Advisor and the HR Manager) suggests not, or is at least lacking in this regard.
[44] Finally, in general, an employer is permitted, and in some circumstances required, to seek information necessary to evaluate whether it can accommodate an individual employee: Gordyat para. 84; see generally Michaud v. BC Government and Service Employees’ Union and another, 2021 BCHRT 115. However, even assuming that Cascades was justified in seeking additional, clarifying medical information in January 2021, its ability to make such inquiries was not unfettered: Thorburn v. Vancouver Coastal Health Authority , 2013 BCHRT 260 at para. 24. Rather, it was constrained by the principle of reasonable necessity. What information did Cascades reasonably need before allowing Mr. Hainz to return to work, and how did it reasonably need to get it? More specifically, for instance: Did Cascades reasonably need “a view of [Mr. Hainz’s] global health situation” before allowing him back to work? Or could it have allowed him to begin his GRTW, and then made these bigger-picture inquiries? Did Cascades reasonably need to arrange an assessment with a third-party specialist? Or could it have directed its questions to Mr. Hainz’s treating specialist, which might have been a less onerous, and more timely, option? The evidence before me does not address these types of questions, which go directly to whether Cascades took all reasonable steps to avoid the adverse impact alleged by Mr. Hainz.
[45] In complaints involving an accommodation process, it is often difficult, on a preliminary application, to determine the extent to which the parties fulfilled their responsibilities: Sluzar v. City of Burnaby and CUPE, Local 23 , 2008 BCHRT 412 at para. 83. I find this to be the case here. In my view, on the information before me, the question of whether Cascades took all reasonable and practical steps to avoid the alleged adverse impact related to requiring Mr. Hainz to attend the Medical Exam and delaying his return-to-work, is a question that the Tribunal must decide at a hearing, after making findings of fact based on an assessment of all the evidence. At this stage, I am not satisfied that the answer to this question is reasonably certain, one way or the other. And the following two cases, cited in Cascades’ submissions, do not persuade me otherwise.
[46] In Rutkowski v. Westin Bayshore Hotel and another, 2018 BCHRT 235, an employee accused of behaving in ways that were combative, argumentative, aggressive, and intimidating was placed on paid leave pending an assessment by a psychiatrist of his choosing. His employer argued that this was not discrimination. It argued that, rather than disciplining or terminating the employee, it had taken reasonable steps to inquire into whether he had a mental disability and required accommodation. Under the circumstances, the Tribunal in Rutkowski decided to dismiss the complaint without a hearing under s. 27(1)(c). The Tribunal was persuaded that the employer was reasonably certain to establish at a hearing that: the employee’s behaviour warranted discipline; the situation triggered the employer’s duty to inquire into whether accommodation was appropriate in lieu of discipline; and the employer was justified in placing the employee on paid leave pending the outcome of that inquiry.
[47] I find Rutkowski unhelpful to my analysis of the application before me for two reasons. First, the circumstances in that case were very different from those presently before me. Mr. Hainz does not seem to have engaged in any misconduct. He was not removed from the workplace because of aggressive behaviour. He was not facing discipline. Rather, he alleges that he was cleared to work by his doctor and prevented from doing so by his employer pending the results of a third-party medical assessment aimed at getting a clearer view of his global health situation. Second, and in any event, the decision in Rutkowski does not establish that any pre-RTW specialist medical assessment that is mandated during an accommodation process will necessarily be justified. In every complaint, including the one before me, the onus is on the employer to prove that its course of action was reasonably necessary and that it took all reasonable and practical steps to avoid the alleged adverse impact. The employer’s ability to meet this onus will always turn on the context and specific circumstances of the case. On the evidence before it, the Tribunal in Rutkowskiwas able to decide that the employer was reasonably certain to justify its course of action. I am not able to do so here.
[48] Cascades also relies on Sluzar v. City of Burnaby (No. 3) , 2010 BCHRT 19 [Sluzar No. 3] in its submissions. Sluzar No. 3was a final decision regarding various allegations of discrimination, including allegations regarding third-party assessments. In that case, the employee’s physician had informed the employer that the employee had permanent physical restrictions and could only participate in a GRTW if he was allowed to perform roles from which he had been removed for disciplinary reasons. This information prompted the employer to seek a third-party functional capacity evaluation [FCE]. The employer also sought a third-party evaluation by a psychiatrist, because the employee’s absence was said to be partly related to stress. On all of the information before it, the Tribunal in Sluzar No. 3concluded that the employer was justified in requesting both the FCE and the psychiatrist evaluation – although it found that the request for the psychiatrist evaluation was not as strongly founded.
[49] For the following reasons, the conclusions in Sluzar No. 3do not change my level of certainty regarding the prospects of Cascades’ justification defence. First, the circumstances in Sluzar are distinguishable from those before me. For example, like Rutkowski , Sluzar No. 3 involved key behavioural issues and disciplinary considerations; the complaint before me does not. Second, and in any event, Sluzar No. 3– like Rutkowski –does not stand for the broad proposition that a mandatory pre-RTW specialist medical assessment during an accommodation process will always be justified. Third, Sluzar No. 3was a final decision, reached by the Tribunal after hearing testimony from nine witnesses, tested through cross-examination, and making findings of fact based on its assessment and weighing of all the evidence on a balance of probabilities. In contrast, under s. 27(1)(c), the Tribunal does not have the benefit of hearing witness testimony. I am not able to assess the evidence in the way I would at a hearing. I cannot make findings of fact. As I said above, in a case like the one before me, it is particularly difficult, within the confines of a preliminary application, to determine the extent to which a party has taken the steps required to fulfil its obligations. In bringing its dismissal application, the onus was on Cascades to put forward sufficient evidence to give me the reasonable certainty I needed to dismiss Mr. Hainz’s complaint. As I outlined above, Cascades has not met this onus.
[50] In sum, then, Cascades has not shown me that the part of the complaint alleging discrimination related to the Medical Exam and associated delay returning Mr. Hainz to work has no reasonable prospect of success. Cascades’ application to dismiss this part of the complaint under s. 27(1)(c) is denied.
C. Should I dismiss the complaint (or a part of it) under s. 27(1)(f) because its substance was appropriately dealt with in the grievance process?
[51] Section 27(1)(f) of the Code allows the Tribunal to dismiss a complaint, or a part of it, if “the substance of the complaint or that part of it has been appropriately dealt with in another proceeding.” A “proceeding” includes “a grievance under a collective agreement”: Code, s. 25(1).
[52] The principles underlying s. 27(1)(f) flow from the doctrines of issue estoppel, collateral attack, and abuse of process, and include finality, fairness, and protecting the integrity of the administration of justice by preventing unnecessary inconsistency, multiplicity, and delay: British Columbia (Workers’ Compensation Board) v. Figliola , 2011 SCC 52 [Figliola] at paras. 25-36; Kolof v. Vancouver Board of Education, Vancouver School District 39 , 2022 BCHRT 86 at para. 262.
[53] I have already decided to dismiss the part of the complaint that is about the COVID Policy under s. 27(1)(c), so I need only consider Cascades’ application under s. 27(1)(f) as it relates to the second part of the complaint, which involves the Medical Exam.
[54] Cascades argues that the Second Grievance “resolved the issue respecting Mr. Hainz’s delayed return in January 2021.” It likens the Second Grievance to the complaint made to the Tribunal in two ways. First, it says the remedy sought in both was compensation for the period between January and May 2021. Second, it says the claim advanced in both was that Cascades’ decision to delay Mr. Hainz’s return-to-work was wrongful because he had medical clearance from Dr. M.
[55] As I understand it, Cascades position is that it resolved the substance of the Second Grievance and the complaint by compensating Mr. Hainz for his wage loss between January 12 and May 6, 2021, at which point the Union considered the matter resolved.
[56] Cascades says the substance of the complaint was dealt with in the Second Grievance. It says the Union represented Mr. Hainz in the grievance process, which demonstrates the appropriateness of that proceeding. It says Mr. Hainz had a full opportunity to plead his case during the grievance process and through the Union. In the end, the grievance was resolved and withdrawn. Cascades says the resolution of the grievance was final. It cites Charbonneau v. Alcan Inc. and others , 2004 BCHRT 19 in support of its submissions.
[57] In Charbonneau, an employee with a skin condition alleged that her employer pressured her to perform work that was beyond her documented medical restrictions. The employer argued that this part of her complaint should be dismissed under s. 27(1)(f) because it had been dealt with in a grievance process regarding the same allegations. The Tribunal agreed. On the evidence before it, the Tribunal found that the issue of accommodation had been raised and considered during the grievance process. It concluded that the substance of the allegations before the Tribunal had been appropriately dealt with under s. 27(1)(f), reasoning that: the grievance arose from the same facts as the relevant portion of the employee’s complaint to the Tribunal; the issues dealt with in the course of the grievance process were essentially the same issues raised in the complaint; the grievance was withdrawn by the employee’s union following a thorough review of the matter at stage one and two of the grievance process; and the employee described the grievance as having been “settled” and did not allege any wrongdoing in its withdrawal.
[58] Cascades says it “is not the Tribunal’s role to second-guess, relitigate, or otherwise alter the conclusions reached in other proceedings.” It rightly argues that an essential question under s. 27(1)(f) is whether it makes sense to expend public and private resources relitigating a dispute that was dealt with elsewhere: see Figliola at para. 38. Despite Cascades’ cogent arguments, however, what is lacking in the materials before me is evidence of either the litigation involved in the Second Grievance proceeding or the supposed conclusions reached in that process.
[59] Cascades has provided relatively little evidence regarding the Second Grievance. The HR Manager says it was filed on January 12, 2021. The grievance notice from the Union states that it was about “the issue of S. Hainz being denied his doctor approved Return to Work.” The HR Manager says the grievance requested that Cascades “make Mr. Hainz whole for delaying his return to work.” He says the Union asked to put the grievance in abeyance on January 15. The only other mention of the grievance in the HR Manager’s statement is on the final page, where he states:
As part of the resolution to the [Second Grievance], Cascades made Mr. Hainz whole by paying him the difference between his regular wages and [short-term disability] benefits between January 12 and May 6, 2021. After this, the Union considered the [Second Grievance] resolved.
[60] In contrast, Cascades dismissal application includes evidence about the parties’ positions and discussions regarding the First Grievance and a concurrent “policy grievance” challenging the legality of the COVID Policy. For example, in his statement, the HR Manager describes a May 12, 2020 meeting in which the parties discussed the policy grievance. He says that, at the meeting, the Union threatened to file individual human rights complaints and argued that the COVID Policy discriminated against employees who were required to stay home. Along with his statement, Cascades filed the HR Manager’s handwritten notes from the May 12 meeting.
[61] There is no such evidence before me regarding the Second Grievance. Unlike in Charbonneau, I have no information about any meetings or discussions between the parties regarding the Second Grievance. Nor do I have any written decisions from Cascades denying the grievance. In contrast to Charbonneau, Mr. Hainz’s complaint form describes his grievances as being at the pre-arbitration stage, not as having been “settled.” In the materials before me, Mr. Hainz does not acknowledge any settlement of the Second Grievance, nor is there evidence of a formal settlement agreed to by Mr. Hainz.
[62] The second part of Mr. Hainz’s complaint is about being required to attend the Medical Exam and being prevented from returning to work despite having received medical clearance to do so. The evidence before me does not demonstrate that the substance of this complaint was appropriately dealt with within the meaning of s. 27(1)(f). The notice regarding the Second Grievance does not address the compulsory Medical Exam or speak to the issue of discrimination. Evidence that the Union withdrew the Second Grievance and considered it to be resolved by the payment for Mr. Hainz’s wage loss, on its own, is not sufficient to establish that the grievance process appropriately dealt with the substance the discrimination allegations before me: Dunlop v. Overwaitea, 2007 BCHRT 254 at para. 61.
[63] For these reasons, I am not satisfied that the substance of the part of the complaint alleging discrimination related to the Medical Exam and associated delay returning Mr. Hainz to work was appropriately dealt with in another proceeding. Cascades’ application to dismiss this part of the complaint under s. 27(1)(f) is denied.
IV CONCLUSION
[64] Cascades’ application to dismiss the first part of the complaint, related to the COVID Policy, is granted. That part of the complaint is dismissed under s. 27(1)(c).
[65] Cascades’ application to dismiss the second part of the complaint, related to the requirement in early 2021 that Mr. Hainz attend a pre-return-to-work medical examination and await its results before returning to work, is denied. This part of the 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