Rutherford v. BC Pension Corporation, 2024 BCHRT 278
Date Issued: October 2, 2024
File: CS-002584
Indexed as: Rutherford v. BC Pension Corporation, 2024 BCHRT 278
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:
Amy Rutherford
COMPLAINANT
AND:
B.C. Pension Corporation
RESPONDENT
REASONS FOR DECISION
APPLICATION TO DISMISS A COMPLAINT
Section 27(1)(c)
Tribunal Member: Andrew Robb
Agent for the Complainant: Robert Rutherford
Counsel for the Respondent: Lucy Williams and Robert A. Sider, KC
I INTRODUCTION
[1] Amy Rutherford filed a human rights complaint against her employer, B.C. Pension Corporation [BCPC]. She alleges that BCPC and its employees, including a human resources consultant [the HR Consultant], discriminated against her based on her mental disability.
[2] Ms. Rutherford’s complaint describes a number of incidents over the course of her employment with BCPC, though some of these incidents appear to be background information about her family members’ communications with BCPC on her behalf, rather than allegations of discrimination under the Human Rights Code. I understand Ms. Rutherford’s complaint to allege that BCPC is responsible for discriminating against her in the following ways:
a. BCPC failed to respond appropriately to her mental health crisis due to workplace stress, in 2014 or 2015. In particular, the HR Consultant did not offer solutions or accommodations.
b. BCPC failed to respond appropriately to her distress in September 2018, when a manager failed to acknowledge her work on a project. Again, the HR Consultant did not offer solutions or accommodations.
c. The HR Consultant contacted her during her sick day on November 19, 2019, which was unnecessary and aggravated her condition.
d. BCPC failed to accommodate her, in February and March 2020, so that she could participate in its internal investigation into issues raised in a claim she filed with WorkSafeBC.
e. The HR Consultant contacted Ms. Rutherford in September 2020, which aggravated her condition. Ms. Rutherford had told BCPC she wanted no direct communication with the HR Consultant or anyone at BCPC.
[3] BCPC denies discriminating. It says its conduct, including that of the HR Consultant, was not connected to Ms. Rutherford’s disability. In the alternative, BCPC says it reasonably accommodated Ms. Rutherford’s disability.
[4] BCPC applies to dismiss the complaint under ss. 27(1)(c) and 27(1)(g) of the Code. It says Ms. Rutherford’s allegations from 2014/2015 and 2018 are about incidents from more than one year before she filed her complaint, and the Tribunal should not accept them. It also says all of Ms. Rutherford’s allegations have no reasonable prospect of success.
[5] For the following reasons, I allow the application under s. 27(1)(c), and I dismiss the complaint. On the limited evidence before me, I find Ms. Rutherford has no reasonable prospect of proving a connection between her allegations from 2014/2015 and 2018 and her mental disability. Even if Ms. Rutherford could establish a connection between BCPC’s alleged conduct and her disability, I find BCPC is reasonably certain to prove it fulfilled its duty to accommodate her, as she did not provide relevant information about her accommodation needs. I reach a similar conclusion with respect to the HR Consultant contacting Ms. Rutherford in November 2019: I find she has no reasonable prospect of proving this was adverse treatment that was connected to her disability. Even if it was, BCPC is reasonably certain to prove the HR Consultant’s decision to contact Ms. Rutherford was justified, under the Code, because the HR Consultant could not reasonably have known that it risked aggravating Ms. Rutherford’s condition.
[6] Regarding her allegation that BCPC failed to accommodate her in its investigation, in 2020, I find BCPC is reasonably certain to prove it fulfilled its duty to accommodate her, because she did not provide relevant information about how she could be accommodated. As for her allegation about the HR Consultant contacting her in September 2020, I find BCPC is reasonably certain to prove this conduct was justified, under the Code. Again, it could not reasonably have known that contact with the HR Consultant risked aggravating Ms. Rutherford’s condition.
[7] To make this decision, I have considered all the information filed by the parties. In these reasons, I only refer to what is necessary to explain my decision.
[8] I apologise to the parties for the Tribunal’s delay in making this decision.
II BACKGROUND
[9] Ms. Rutherford started working at BCPC in 2012. She says she has been affected by mental health issues in the workplace since then.
[10] BCPC says that around 2016 it established a mental health first aid service, to provide employees with a contact person they could talk to about mental health issues and other services that may be helpful. The HR Consultant was that contact person, and part of her role was to talk to employees who needed assistance with issues or concerns related to their mental health. BCPC says the mental health first aid service was voluntary, and employees were not required to use it.
[11] Ms. Rutherford says she discussed concerns about her mental health with the HR Consultant on multiple occasions, before and after BCPC established its mental health first aid service. She says the HR Consultant’s responses were insufficient and sometimes exacerbated her condition.
[12] The HR Consultant says she spoke to Ms. Rutherford about issues that were causing stress for Ms. Rutherford, at home and in the workplace. She says she spoke to Ms. Rutherford approximately four to six times before BCPC established its mental health first aid service, and one or two times after that.
[13] In her response to the application to dismiss, Ms. Rutherford suggests the HR Consultant should have offered more assistance, or proposed accommodations and solutions, when Ms. Rutherford discussed her mental health concerns. She does not say what assistance or accommodations the HR Consultant should have offered.
[14] Ms. Rutherford says that when she spoke to her managers and human resources staff about her disability and her difficulties with stress, she was told things like, “it’s part of the job”, “nothing can be done about it”, “it’s your responsibility to deal with it”, or that she could go work somewhere else. She does not describe the context for these statements, like when they were made, or who made them, or what incidents they related to.
[15] Ms. Rutherford’s complaint refers to several incidents that she says harmed her mental health. She says one incident happened around 2014 or 2015 (she does not recall the exact date), when she experienced a mental health crisis due to workplace stress. She says she reported this to the HR Consultant, who discussed seeking treatment at a hospital, and BCPC offered her two weeks paid sick leave, but she declined the offer because she was afraid of stigmatization. She says BCPC’s response failed to address the workplace issues that caused her mental health crisis, but she does not explain what those issues were, or how BCPC or the HR Consultant failed to address them, or how BCPC and the HR Consultant should have responded.
[16] Ms. Rutherford’s complaint also refers to an incident related to her mental health in September 2018, when a manager failed to acknowledge her work on a project, even after a co-worker tried to give her credit. She says this made her feel like her work and expertise were not valued, which echoed how she often felt due to what she describes as her complex mental health needs. She says she later received an apology from the manager for this incident, relayed to her second-hand through a co-worker.
[17] Ms. Rutherford says she spoke to the HR Consultant after the incident where her manager did not acknowledge her work, and she was crying so it was evident she was upset, but after an hour the HR Consultant asked her to leave. The HR Consultant made a sworn statement in support of the application to dismiss, but it does not address this incident.
[18] On November 15, 2019, Ms. Rutherford says she had a very bad work day and experienced high levels of stress, which caused acute pain and difficulty controlling her emotions and behaviours. She does not explain what caused the stress, nor does she suggest BCPC or its employees were responsible for it, but she takes issue with the HR Consultant contacting her when she took sick days as a result of the stress.
[19] Ms. Rutherford says that on November 18, 2019, she took a sick day to deal with the stress. She emailed her manager to say she was taking a sick day, and she did the same thing the following day. On her second sick day, after Ms. Rutherford emailed her manager, the HR Consultant contacted her by voice-mail and email. The email said the HR Consultant wanted to check in and see how she was doing, and asked her to call back. It also said that if she did not respond within two hours, the HR Consultant would contact Ms. Rutherford’s emergency contact. Ms. Rutherford responded and said she was not well and could not come to work.
[20] Ms. Rutherford says it was unnecessary for the HR Consultant to contact her, on November 19, 2019, and it felt like harassment and bullying. The HR Consultant says she contacted Ms. Rutherford because Ms. Rutherford’s manager said her co-workers were concerned about her well-being. Ms. Rutherford says this incident triggered a more serious mental health crisis, and she has been unable to return to work since then.
[21] On November 27, 2019, Ms. Rutherford submitted a short-term disability form to BCPC. The form said she had filed a claim with WorkSafeBC about the events that caused her disability.
[22] BCPC’s application to dismiss included documentation showing Ms. Rutherford’s WorkSafeBC claim alleged that she incurred a mental injury resulting from several incidents involving BCPC management and her co-workers. The claim does not appear to refer to the HR Consultant. BCPC says WorkSafeBC denied the claim, and the denial was later upheld by a review decision and by the Workers’ Compensation Appeal Tribunal.
[23] In the days after November 27, 2019, Ms. Rutherford communicated with the HR Consultant about the WorkSafeBC claim, by email. Ms. Rutherford says she later realised these communications were retraumatizing her and aggravating her condition. She does not say whether she shared this information with the HR Consultant or BCPC. BCPC says it did not learn that contact with the HR Consultant caused stress for Ms. Rutherford until November 2020, when Ms. Rutherford’s family member explained this.
[24] Ms. Rutherford says she sent her union representative an email, on December 16, 2019, asking for an investigation into the HR Consultant’s conduct. She says she also told her union she did not want the HR Consultant to have any contact with her or her file, because it was retraumatizing and aggravated her condition. I understand this to mean that she asked her union to ask BCPC to investigate the HR Consultant and ensure she had no more contact with Ms. Rutherford or her file. But there is no evidence before me that the union submitted this request to BCPC. Ms. Rutherford disclosed an email she sent to her union representative, on December 16, 2019, which expresses concern about the HR Consultant and the mental health first aid service. But it does not ask for an investigation, and it does not say she did not want the HR Consultant working on her file.
[25] In December 2019, Ms. Rutherford stopped communicating with BCPC. She authorised two of her family members, AR and TR, to communicate with BCPC on her behalf.
[26] After Ms. Rutherford filed her WorkSafeBC claim, BCPC’s Assistant Director of Recruitment and Employee Relations [the Assistant Director ] says she decided to initiate an internal investigation based on the allegations in the claim. The Assistant Director was the HR Consultant’s supervisor.
[27] The Assistant Director says she needed to interview Ms. Rutherford, as part of the investigation, but she knew Ms. Rutherford did not want any direct contact with BCPC at that time. On February 18, 2020, the Assistant Director told AR the investigation was on hold until she could speak to Ms. Rutherford.
[28] Ms. Rutherford says that during February and March 2020, AR communicated with the Assistant Director about the internal investigation, and requested accommodations which would have permitted Ms. Rutherford to participate in the investigation, but BCPC denied the requests and put off the investigation indefinitely. Ms. Rutherford does not say what accommodations AR requested, or why she believes the requests were denied. The evidence before me shows that AR told the Assistant Director that Ms. Rutherford could attend an in-person interview, in March 2020, but a date for the interview was not scheduled, and it appears the parties had no further communication about an interview until December 2020, as described below.
[29] At some point in early 2020, Ms. Rutherford applied for long-term disability benefits. In March 2020, the HR Consultant communicated with AR about this application. On April 8, 2020, the Assistant Director notified the HR Consultant that she had received a request from AR and TR for all communications about Ms. Rutherford to go through her (the Assistant Director), instead of the HR Consultant.
[30] After April 8, 2020, BCPC says it did its best to ensure that all communications about Ms. Rutherford went through the Assistant Director instead of the HR Consultant. But it says this was not always possible, because the HR Consultant was more closely involved with BCPC’s disability management program, and was BCPC’s main contact with the BC Public Service Agency [BCPSA], which helped administer BCPC’s long-term disability plan.
[31] On September 29, 2020, a representative of Ms. Rutherford’s union emailed an employee of BCPSA to say Ms. Rutherford had not completed a required insurance form that had previously been sent to her. The email from the union asked for the form to be re-sent. The BCPSA employee forwarded this email to the HR Consultant, and asked the HR Consultant to re-send the form to Ms. Rutherford. The HR Consultant then sent it directly to Ms. Rutherford, copied to AR and TR. The HR Consultant says she emailed the insurance form directly to Ms. Rutherford because she believed the union had asked her to do so.
[32] Ms. Rutherford says that upon receipt of this email from the HR Consultant she experienced extreme stress, and the symptoms of her disability were aggravated. She suggests this was due to the fact that the HR Consultant contacted her, not the content of the email.
[33] On November 2, 2020, TR emailed the Assistant Director and provided the completed insurance form. TR also explained that Ms. Rutherford did not want the HR Consultant to be involved in anything to do with her. She said the HR Consultant had caused harm to Ms. Rutherford while providing mental health first aid services, and the possibility of interacting with her was harmful to Ms. Rutherford’s recovery. BCPC says this was the first time that Ms. Rutherford or her representatives explained, to anyone at BCPC, why she did not want to have any direct contact with BCPC, and why she did not want the HR Consultant to be involved in her file.
[34] The Assistant Director says she apologised to TR for the HR Consultant’s email to Ms. Rutherford. She says BCPC has taken steps to ensure the HR Consultant has no further involvement in Ms. Rutherford’s file.
[35] In December 2020, the Assistant Director told TR that BCPC would not interview Ms. Rutherford without medical clearance from her doctor, to confirm she was well enough to participate in an interview. The Assistant Director says BCPC never received this medical clearance, and its investigation was still on hold when BCPC filed this application to dismiss.
III DECISION
A. Section 27(1)(c) – No reasonable prospect of success
[36] BCPC applies to dismiss Ms. Rutherford’s complaint on the basis that it has no reasonable prospect of success: Code,s. 27(1)(c). 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.
[37] 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.
[38] It is the responsibility of the parties to submit the information they believe is necessary to enable the Tribunal to make a decision under s. 27(1)(c).The Tribunal must base its decision on the materials filed by the parties, and not on speculation about what evidence may be filed at a hearing: University of British Columbia v. Chan, 2013 BCSC 942at para. 77.
[39] 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.
[40] To prove her complaint at a hearing, Ms. Rutherford will have to prove she has a characteristic protected by the Code, she was adversely impacted in her employment, and her protected characteristic was a factor in the adverse impact: Moore v. British Columbia (Education), 2012 SCC 61 at para. 33. If she did that, the burden would shift to BCPC to prove the impact was justified under the Code . If the impact is justified, there is no discrimination.
[41] In an application under s. 27(1)(c), if the respondent can show that it is reasonably certain to prove a defence at a hearing, the complaint has no reasonable prospect of success: Purdy v. Douglas College and others , 2016 BCHRT 117 at para. 50.
[42] BCPC does not deny that Ms. Rutherford has a mental disability. But it says she has no reasonable prospect of proving that BCPC was responsible for adverse treatment in her employment, or that there was a connection between the alleged adverse treatment and her mental disability. In the alternative it says it reasonably accommodated her.
[43] In the following sections of this decision, I review each of Ms. Rutherford’s allegations of discrimination in turn.
B. Allegations from 2014/2015 and 2018
[44] BCPC says Ms. Rutherford has not provided enough information to bring her allegation that it discriminated against her, in 2014 or 2015, out of the realm of conjecture. I agree, and for the following reasons I find this allegation has no reasonable prospect of success.
[45] Ms. Rutherford’s complaint refers to anxiety caused by the work environment and her relationship with her previous supervisor, in either 2014 or 2015. She says she spoke to the HR Consultant about these problems, and the HR Consultant encouraged her to consider going to the hospital, and BCPC offered her two weeks paid sick leave, but the underlying problems in the workplace were not addressed.
[46] Ms. Rutherford does not explain how the work environment caused her anxiety, nor does she describe the difficulties in her relationship with her supervisor. She says the HR Consultant should have offered solutions or accommodations, other than paid sick leave or going to the hospital, but she does not say what solutions or accommodations she was seeking, or what would have been appropriate.
[47] Without any information about how BCPC and its employees’ conduct was connected to Ms. Rutherford’s mental health, I find she has not brought the connection between her disability and any adverse impact caused by the 2014/2015 incident, out of the realm of conjecture.
[48] Even if Ms. Rutherford did experience an adverse impact, which was connected to her disability, as a result of the events she describes in 2014/2015, I find BCPC is reasonably certain to prove it satisfied its duty to accommodate her. While Ms. Rutherford refused the offer of paid sick leave, she does not explain why this was not a reasonable accommodation, or what would have been more appropriate. Employees have a duty to participate in the accommodation process, and to give their employers information about how to accommodate them: Central Okanagan School District No. 23 v. Renaud , [1992] 2 S.C.R. 970 [Renaud]. On the evidence before me, BCPC is reasonably certain to prove that Ms. Rutherford did not do this.
[49] Regarding Ms. Rutherford’s allegation from 2018, when she says a manager did not give her credit for her work, I understand BCPC’s argument to be that she has no reasonable prospect of proving a connection between her disability and the alleged impact on her, that could satisfy the Moore test. Again, I agree with BCPC’s submission, and I find this allegation has no reasonable prospect of success.
[50] Ms. Rutherford says the manager’s failure to acknowledge her work on a project aggravated her disability, but the Tribunal has found that conduct that causes or exacerbates a disability is not necessarily discrimination. To establish discrimination, a complainant must prove the respondent either treated them adversely due, at least in part, to their disability, or created a barrier to their employment that was connected to their disability: Jardine v. Interior Health Authority (No. 2), 2022 BCHRT 7 at para. 86.
[51] There is nothing in Ms. Rutherford’s materials that suggests the manager’s failure to acknowledge her work was due to her disability. She says it made her feel like she was not valued, and her mental health needs often made her feel the same way, but this does not explain how the manager’s failure to give her credit was connected to her mental health. Based on the materials before me, she has no reasonable prospect of proving a connection between her disability and the manager’s failure to acknowledge her.
[52] Ms. Rutherford suggests BCPC and the HR Consultant did not respond appropriately to her concerns about this incident. But she does not explain why their response was inappropriate, or how it created a barrier in her employment. Even if this incident had an adverse impact on her, which was connected to her disability, she does not say what solutions or accommodations she was seeking, or what would have been appropriate. Again, on the evidence before me, I find BCPC is reasonably certain to prove its conduct was justified, because Ms. Rutherford did not provide relevant information about how she could be accommodated: Renaud.
[53] In her response to the application to dismiss, Ms. Rutherford says that when she brought up her disability and her stress, her managers and human resources staff told her it was her responsibility to deal with it, or said she could go work somewhere else. But she does not say who made these statements, or when they were made, or what they were in response to. I have no basis to speculate about whether these statements were part of the incidents in 2014/2015 or 2018.
[54] For these reasons, I find Ms. Rutherford’s allegations of discrimination in 2014/2015 and 2018 have no reasonable prospect of success.
C. Sick day in November 2019
[55] Ms. Rutherford says the HR Consultant’s communications with her, during her sick day on November 19, 2019, violated her request to have no contact with the HR Consultant, and showed a lack of accommodation. She does not suggest BCPC was responsible for her high levels of stress, which led her to call in sick, but she says it was unnecessary for the HR Consultant to contact her during her sick day, because she had already told her manager she would not be able to work that day. She says the HR Consultant’s communications felt like harassment and an invasion of her privacy, and aggravated her mental health condition.
[56] BCPC says Ms. Rutherford has no reasonable prospect of proving a connection between her disability and the HR Consultant’s communications with her, on November 19, 2019. I agree, and for the following reasons I find this allegation has no reasonable prospect of success.
[57] As I explained above, even if the HR Consultant’s conduct exacerbated Ms. Rutherford’s disability, this does not necessarily mean there was discrimination. To establish discrimination Ms. Rutherford must show BCPC or its employees treated her adversely, at least in part because of her disability, or she experienced a disability-related barrier in her employment, and BCPC failed to reasonably accommodate her: Jardine at paras. 86-87.
[58] On the evidence before me, Ms. Rutherford has no reasonable prospect of proving the HR Consultant’s communications with her, on November 19, 2019, were a form of adverse treatment due, in part, to her disability. There is no evidence before me that could suggest the HR Consultant contacted Ms. Rutherford for any reason other than to make sure she was okay.
[59] Even if this incident created a barrier in Ms. Rutherford’s employment, which was connected to her disabilities, I find BCPC is reasonably certain to prove its conduct was justified, because it could not reasonably have been aware of Ms. Rutherford’s disability-related needs at the relevant time: Student (by Parent) v. School District, 2023 BCHRT 237 at para. 89. In her response to the application to dismiss, Ms. Rutherford suggests she had requested no contact with the HR Consultant by November 2019, but she does not say when or how she made this request. In her complaint she says she emailed with the HR Consultant in early December 2019, and she did not request no contact with BCPC until sometime between December 2019 and February 2020.
[60] Ms. Rutherford does not explain this discrepancy between her complaint and her response to the application to dismiss, about when she requested no contact with BCPC. BCPC says she did not inform it that contact with the HR Consultant caused her stress until November 2020, when TR shared this information with the Assistant Director. Ms. Rutherford does not specifically deny this.
[61] Without any information about when or how she may have made a request for no contact before December 2019, I find BCPC is reasonably certain to prove it could not have known of the request, or her desire not to have contact with the HR Consultant, as of November 19, 2019. Since BCPC is reasonably certain to prove it did not know of Ms. Rutherford’s disability-related needs, it is reasonably certain to prove its conduct was justified under the Code.
[62] I find Ms. Rutherford’s allegation of discrimination based on the HR Consultant contacting her, on November 19, 2019, has no reasonable prospect of success.
D. Investigation in February-March 2020
[63] Ms. Rutherford’s complaint says BCPC failed to accommodate her, in February and March 2020, so that she could participate in its internal investigation into the events that led to her WorkSafeBC claim. She does not say whether she requested any particular accommodations, or what BCPC should have done to accommodate her. I understand BCPC’s argument to be that it is reasonably certain to prove it fulfilled its duty to reasonably accommodate her. I agree with BCPC, for the following reasons.
[64] BCPC provided emails between the Assistant Director and AR, from February and March 2019. They show that AR initially told the Assistant Director that Ms. Rutherford could answer questions by email, for the purpose of the investigation, but the Assistant Director said she would need to speak to Ms. Rutherford. AR then agreed that an email interview would not work, and suggested an in-person interview outside the workplace, or a phone interview. The Assistant Director said either option would be fine. On March 9, 2020, AR emailed the Assistant Director to suggest a date for an in-person interview, but it appears the pandemic intervened, and there was no further communication about an interview until December 2020, after Ms. Rutherford file a grievance against BCPC.
[65] The Assistant Director says she spoke to TR in December 2020 about the grievance, and TR said Ms. Rutherford was not comfortable with meeting by video or phone at that time. In a follow-up letter to TR, dated December 17, 2020, the Assistant Director said an in-person meeting was not possible, due to the pandemic. She also said BCPC would require medical clearance from Ms. Rutherford’s doctor before it interviewed her. It does not appear that TR responded to this letter, or that the parties had any further communications, until BCPC was notified about Ms. Rutherford’s human rights complaint.
[66] Ms. Rutherford’s response to the application to dismiss says she was not well enough to attend an interview, in February and March 2020. She does not specify whether this means she was not well enough to attend in person, or she could not participate in an interview at all. In light of this statement, it is not clear to me whether she believes that she could have participated in the investigation, under any circumstances, at that time.
[67] It is difficult to understand Ms. Rutherford’s allegation that BCPC failed to accommodate her participation in the investigation. She says BCPC denied accommodations requested by AR, but she does not say what accommodations AR requested, or what BCPC should have done to accommodate her. I considered whether this allegation is a reference to AR’s request for an email interview, but AR agreed with the Assistant Director that an email interview would not have been appropriate. I also considered whether the allegation is a reference to the Assistant Director’s apparent failure to respond to AR’s attempt to schedule an in-person interview, in March 2020. But there is no evidence that AR followed up about the interview, even though AR and TR remained in contact with the Assistant Director. Based on Ms. Rutherford’s response to the application to dismiss, it is not clear that she could have participated in an interview anyway.
[68] It appears Ms. Rutherford did not respond to BCPC’s later request for medical clearance, so that she could proceed with an interview. But she does not suggest the request for medical clearance was inappropriate, or that there was some way for her to participate in an investigation other than an interview.
[69] On the evidence before me, I find BCPC is reasonably certain to prove it fulfilled its duty to accommodate Ms. Rutherford, because Ms. Rutherford did not participate in the accommodation process or provide relevant information about how she could be accommodated. This means her allegation about BCPC’s failure to accommodate her participation in the investigation has no reasonable prospect of success.
E. The HR Consultant’s email to Ms. Rutherford in September 2020
[70] The parties agree that the HR Consultant contacted Ms. Rutherford in September 2020, even though she had asked for no direct contact with BCPC in December 2019, and her representatives asked for all communications to go through the Assistant Director in April 2020. It appears that the September 2020 email from the HR Consultant was the only time anyone at BCPC contacted Ms. Rutherford directly, after December 2019.
[71] Ms. Rutherford says that receiving the HR Consultant’s email aggravated her mental health condition. She says this incident showed BCPC’s lack of understanding of her condition and her need for accommodation. I understand her argument to be that direct contact with BCPC, and the HR Consultant in particular, created a disability-related barrier to her employment, and the HR Consultant’s email was a failure to accommodate her.
[72] BCPC denies that it failed to accommodate Ms. Rutherford. It says it was not aware, in September 2020, that she had disability-related reasons for not wanting the HR Consultant to be involved in her file. BCPC says it only learned this in November 2020, when TR explained it to the Assistant Director. There is no evidence before me that suggests Ms. Rutherford or her representatives explained the connection between her disability and contact with the HR Consultant, to anyone at BCPC, before November 2020.
[73] Even if the HR Consultant’s email to Ms. Rutherford created a barrier to her employment, which was connected to her disability, I find BCPC is reasonably certain to prove its could not have known that this was a possibility, at the relevant time. Although BCPC knew that Ms. Rutherford did not want direct contact with BCPC before September 2020, there is no evidence that it knew of the risk that direct contact would aggravate Ms. Rutherford’s condition, until TR explained this to the Assistant Director. BCPC is reasonably certain to prove its conduct was justified because it was not responsible to accommodate disability-related needs that it could not reasonably have been aware of: Student (by Parent)at para. 89.
[74] For these reasons I find Ms. Rutherford’s allegation of discrimination based on the HR Consultant’s email to her in September 2020 has no reasonable prospect of success.
IV CONCLUSION
[75] I dismiss the complaint under s. 27(1)(c) of the Code . This means it is not necessary for me to address BCPC’s arguments under s. 27(1)(g).
Andrew Robb
Tribunal Member
Human Rights Tribunal