Kamalov v. Paladin Security Group Ltd., 2024 BCHRT 285
Date Issued: October 8, 2024
File: CS-000120/20396
Indexed as: Kamalov v. Paladin Security Group Ltd., 2024 BCHRT 285
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:
Renat Kamalov
COMPLAINANT
AND:
Paladin Security Group Ltd.
RESPONDENTS
REASONS FOR DECISION
APPLICATION TO DISMISS A COMPLAINT
Section 27(1)(c)
Tribunal Member: Amber Prince
On their own behalf: Renat Kamalov
Counsel for the Respondents: Danny Bernstein and Julia B. Bell
I INTRODUCTION
[1] Renat Kamalov was employed with Paladin Security Group Ltd. [Paladin] until January 2019 when his employment was terminated. He says that his termination was discrimination, based on disability, in violation of s. 13 of the Human Rights Code [ Code ].
[2] Paladin says that Mr. Kamalov has not established that he had a disability, and that his employment was terminated for a non-discriminatory reason: his workplace conduct. Paladin applies to dismiss Mr. Kamalov’s complaint on the basis that it has no reasonable prospect of success under s. 27(1)(c) of the Code .
[3] The issue before me is whether to dismiss Mr. Kamalov’s complaint on the basis that it has no reasonable prospect of success.
[4] I have decided to dismiss Mr. Kamalov’s complaint under s. 27(1)(c) of the Code . I have made this decision because Mr. Kamalov has no reasonable prospect of proving that he had disability protected by the Code . I explain this decision below. I apologize to the parties for the delay in issuing this decision.
II BACKGROUND
[5] Below, I summarize the background to Mr. Kamalov’s complaint for context. The background is taken from the materials filed by the parties. I have considered all of these materials, but only refer to what is necessary to explain my decision. I make no findings of fact.
[6] Paladin provides security services for commercial and residential properties. In or around February, 2018, Paladin hired Mr. Kamalov as a security guard at a shopping mall. In or around August, 2018, he was promoted to the position of Site Supervisor at the mall.
[7] Mr. Kamalov’s direct supervisor was the Regional Security Manager, TH [TH]. KS was the Employee Care Manager for Paladin, and responsible for matters related to compensation, benefits, employee engagement, rewards, recognition, and discipline [KS]. TH and KS provided evidence in support of Paladin’s dismissal application.
[8] Beginning in or around September, 2018, Paladin had concerns about Mr. Kamalov’s conduct at work. Those concerns were communicated to Mr. Kamalov and culminated in Paladin issuing him a “final written warning” on September 26, 2018: TH Affidavit, Exhibit I, p. 30.
[9] From October 27, 2018 to January 4, 2019, Paladin had further concerns about Mr. Kamalov’s conduct at work. As a result of these further concerns, Paladin terminated his employment on January 23, 2019: TH Affidavit, Exhibit Y, p. 91.
III ANALYSIS
[10] The question before me is whether Mr. Kamalov’s complaint has no reasonable prospect of success under s. 27(1)(c) of the Code .
A. Section 27(1)(c) of the Code
[11] Section 27(1)(c) is part of the Tribunal’s gate-keeping function. As part of this function, the Tribunal has discretion to dismiss a complaint if the complaint has no reasonable chance of succeeding at a hearing : Lord v Fraser Health Authority , 2021 BCSC 2176, para. 19.
[12] The Tribunal does not make findings of fact on a dismissal application as it would at a hearing. Instead, the Tribunal considers the whole of the evidence to decide whether there is no reasonable prospect that a complaint could be proven, after a full hearing of the evidence: Byelkova v Fraser Health Authority , 2021 BCSC 1312, para. 24; Francescutti v. Vancouver (City) , 2017 BCCA 242, para. 52. The Tribunal bases its decision on the materials filed by the parties; not on what evidence might be given at the hearing: University of British Columbia v. Chan , 2013 BCSC 942, para. 77; Conklin v University of British Columbia , 2021 BCSC 1569, para. 32.
[13] The onus is on the applicant to show there is no reasonable prospect a complaint will succeed: Byelkova , para. 27. At this stage, the complainant must show that their allegations are based on more than speculation: Lord , para. 19.
[14] To prove discrimination at a hearing, Mr. Kamalov would have to prove three elements: (1) he had a disability protected by the Code ; (2) he was adversely impacted in his employment (he was terminated); and (3) his disability was a factor in Paladin terminating his employment : Moore v. BC (Education) , 2012 SCC 61, para. 33. If Paladin can show that he has no reasonable prospect of proving one or more of these criteria, Mr. Kamalov’s complaint may be dismissed.
[15] For the purposes of their dismissal application, Paladin concedes that Mr. Kamalov’s termination could meet the “adverse impact” criterion set out in Moore : Dismissal Application, para. 51. However, Paladin argues that Mr. Kamalov has no reasonable prospect of proving that he had a disability protected by the Code ; or that his stated disability was a factor in the termination: Dismissal Application, para. 52.
[16] I agree with Paladin that Mr. Kamalov has no reasonable prospect of proving that he has a disability protected by the Code . I explain why I come to this conclusion next.
B. Proving a disability within the meaning of the Code
[17] To prove discrimination at a hearing, Mr. Kamalov would first need to prove that he had a disability protected by the Code , at times relevant to his complaint: Jickling v. Sweet Meadows Market , 2022 BCHRT 122, para. 32. The timeframe relevant to Mr. Kamalov’s complaint are the months of December, 2018 and January 2019. He alleges that during those months he was under stress, and his health was affected, because Paladin was applying “psychological pressure” to him: Complaint, p. 3.
[18] “Disability” is not defined in the Code . Rather, the Tribunal and Courts have developed criteria to determine what is and is not a disability, taking into account the purposes of the Code : Stevenson v. Marcon Construction , 2020 BCHRT 80, para. 7. One purpose of the Code is to remove barriers that people face in certain areas of their life because of a disability: Code , s. 3; Stevenson , para. 7. Those barriers may arise from actual functional limitations associated with a disability, or society’s response to the disability: Stevenson , para. 7. To decide whether a specific medical condition is a “disability” with the meaning of the Code , the Tribunal generally considers:
- the degree of impairment and functional limitations associated with the condition; and/or
- the degree of severity, permanence, and persistence of the condition; and/or
- the social perception and response to that condition, taking into account human rights principles.
Stevenson , para. 8; Morris v. BC Rail , 2003 BCHRT 14, paras. 211 and 214; Québec (Commission des droits de la personne et des droits de la jeunesse) v. Montréal (City); Québec (Commission des droits de la personne et des droits de la jeunesse) v. Boisbriand (City) , 2000 SCC 27 [ Boisbriand ], para. 77.
[19] Next, I apply these principles to the evidence before me about Mr. Kamalov’s stated disability.
C. The evidence about Mr. Kamalov’s stated disability
[20] In his complaint, Mr. Kamalov says that he has health issues, stress, and a “Persons With Disabilities” designation with the province of BC. The evidence about Mr. Kamalov’s stated disability includes: three medical notes that he gave to Paladin, his comments about his health to Paladin, and a government form verifying that he received disability assistance. I begin with the three medical notes.
[21] The first two medical notes that Mr. Kamalov gave to Paladin state that he was unable to work from December 14-28, 2018, for “medical reasons”: KS Affidavit, Exhibit G; TH Affidavit, Exhibits S. The medical notes indicate that Mr. Kamalov needed to miss work for a relatively brief period – two weeks. The third medical note, of December 28, 2018, stated that Mr. Kamalov reported “feeling well” and was “able to resume work full time” as of January 1, 2019: TH Affidavit, Exhibit T.
[22] The notes point to Mr. Kamalov having a health issue that was temporary rather than persistent or permanent. After dealing with this temporary health issue, there is no indication that Mr. Kamalov had a specific medical condition; or any impairment or functional limitation arising from a medical condition. Instead, he was “feeling well” and able to resume work full-time.
[23] There is not enough information in the medical notes to show that Mr. Kamalov had a disability, during that timeframe, within the meaning of the Code .
[24] I have also considered the evidence about Mr. Kamalov’s comments to Paladin about stress he was experiencing. On December 14, 2018, he told Paladin that he was under “so much stress” in connection with TH’s concerns about his work: KS Affidavit, Exhibit F, p. 25. On January 3, 2019, he told Paladin that he was under “constant stress” and that his health was “significantly affected” because Paladin was applying “psychological pressure” to him: TH Affidavit, Exhibit V, p. 72. Mr. Kamalov’s comments to Paladin arose in the context of Paladin raising concerns about his work conduct, and Mr. Kamalov raising concerns about TH’s management style.
[25] Mr. Kamalov’s evidence about his stress is not enough to a show a disability protected by the Code . The Tribunal has repeatedly said that stress, in itself, is not a disability within the meaning of the Code : Enoch v. Caretenders Inc. and another , 2023 BCHRT 211, para. 40; Naqvi v. WSP Canada Inc. (No. 2) , 2023 BCHRT 9, para. 17; Vanderveen v. Heritage Steel Sales , 2019 BCHRT 132, para. 40; Matheson v. School District No. 53 (Okanagan Similkameen) and Collis , 2009 BCHRT 112, para. 14. This includes circumstances where workplace stress results from an employer investigating alleged work performance problems, or from a problematic relationship with a supervisor: Matheson , para. 14; Mandryk v. Anmore (No. 3) , 2015 BCHRT 108, para. 106.
[26] Finally, I have considered Mr. Kamalov’s evidence that he was designated as a “person with disabilities” or “PWD” since 2013: Response to Dismissal Application, p. 1. In support of his statement, Mr. Kamalov included in his dismissal application materials a BC government form. The form indicates that Mr. Kamalov received provincial disability assistance as of January 21, 2019, under the Employment and Assistance for Persons with Disabilities Act .
[27] I accept that Mr. Kamalov received disability assistance in January, 2019, and that he received the assistance as a result of being designated as a “person with disabilities” under the Employment and Assistance for Persons with Disabilities Act – at least as of January 21, 2019. However, this evidence does not meet the criteria to show a disability within the meaning of the Code .
[28] The evidence of Mr. Kamalov’s “person with a disabilities” status with the BC government, as of January 21, 2019, does not tell me anything about Mr. Kamalov’s actual medical condition, when the medical condition arose for him, or its severity, permanence, or persistence. This status also does not tell me anything about how a medical condition caused any impairments or functional limitations for Mr. Kamalov during the course of his employment with Paladin. Critically, Mr. Kamalov’s “person with disabilities” status tells me nothing of a medical condition impacting his work with Paladin during the timeframe of alleged discrimination – December, 2018 to January, 2019.
[29] Further, the December 28, 2018 medical note that Mr. Kamalov provided Paladin indicates that he had no medical conditions impairing or limiting his ability to resume his full-time work with Paladin. He reported to his doctor that he was he was “feeling well” and able to resume work full-time as of January 1, 2019.
[30] I have considered the whole of evidence before me to assess whether Mr. Kamalov has a reasonable prospect of proving that he had a disability, protected by the Code , at the relevant time. I can only consider this evidence and not what evidence may be given at a hearing: Conklin , para. 32. On the evidence before me, I am persuaded that Mr. Kamalov has no reasonable prospect of proving that he has a disability.
[31] In arriving at this conclusion, I acknowledge Mr. Kamalov’s submission that his health status made it difficult for him to participate in the Tribunal process itself: Response to Dismissal Application, p. 1-2. His submission resulted in the Tribunal granting several time-extensions to file his dismissal application response and evidence. I also acknowledge that Mr. Kamalov may have health challenges or a disability – as it may be defined elsewhere for other purposes. However, none of this information changes the criteria set out in human rights law to show a disability protected by the Code .
[32] Because there is no reasonable prospect that Mr. Kamalov can connect his termination to a characteristic protected by the Code , his complaint cannot succeed.
IV ORDER
[33] Mr. Kamalov’s complaint is dismissed under s. 27(1)(c) of the Code .
Amber Prince
Tribunal Member