Zwanink v. Arrow Marine Services Ltd. 2024 BCHRT 286
Date Issued: October 8, 2024
File: CS-005031
Indexed as: Zwanink v. Arrow Marine Services Ltd. 2024 BCHRT 286
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:
Hendricus Zwanink
COMPLAINANT
AND:
Arrow Marine Services Ltd.
RESPONDENT
REASONS FOR DECISION
APPLICATION TO DISMISS A COMPLAINT
Section 27(1)(c)
Tribunal Member: Robin Dean
Counsel for the Complainant: Fiona Wong
Counsel for the Respondent: Craig T. Munroe
I INTRODUCTION
[1] Hendricus Zwanink alleges that his former employer Arrow Marine Services Ltd. discriminated against him based on age contrary to s. 13 of the Human Rights Code . In particular, he says that Arrow terminated his employment instead of accommodating his age-related vulnerabilities during the COVID-19 pandemic. He also alleges that his colleagues subjected him to ageist comments while he worked at Arrow.
[2] Arrow denies discriminating. It says Mr. Zwanink voluntarily retired. It says it did not know and could not reasonably have known that Mr. Zwanink required further accommodation apart from the COVID-19 safety measures it had already put in place. Further, it says that Mr. Zwanink’s allegations about his colleagues’ discriminatory comments are vague, unparticularized, and raised for the first time in his complaint. Arrow applies to dismiss Mr. Zwanink’s complaint under s. 27(1)(c) of the Code . It also applies for costs under s. 37(4) of the Code .
[3] In deciding this application, I must determine whether there is no reasonable prospect Mr. Zwanink will prove he suffered adverse impacts, or whether the adverse impacts he suffered were connected to his age. I also consider whether Arrow is reasonably certain to prove a defence. Finally, I consider whether Mr. Zwanink has engaged in improper conduct such that an award of costs is appropriate.
[4] Because Arrow is reasonably certain to prove it did not know that Mr. Zwanink needed further accommodation and had no reasonable way of knowing that Mr. Zwanink needed further accommodation, I find that Mr. Zwanink’s termination complaint has no reasonable prospect of success. In terms of the discriminatory comments allegation, I am satisfied that Mr. Zwanink has not taken this aspect of the complaint out of the realm of conjecture. I dismiss Mr. Zwanink’s complaint in its entirety. I do not award costs.
II BACKGROUND
[5] To make this decision, I have considered all the information filed by the parties. In these reasons, I refer only to what is necessary to explain my decision. I make no findings of fact.
[6] Arrow operates a shipyard and boat repair business. Mr. Zwanink began his employment with Arrow as a marine mechanic in October 2005.
[7] In March 2020, Mr. Zwanink went on a leave of absence from work, citing concerns about working during the COVID-19 pandemic. At the time, Mr. Zwanink was 69 years old and afraid of catching COVID-19 given what he understood its outcomes to be for people of his age—i.e. serious illness or death.
[8] On June 11, 2020, Arrow sent a letter to Mr. Zwanink advising him that it had developed and implemented COVID-19 safety measures, which it says had been approved by WorkSafeBC. Arrow acknowledged Mr. Zwanink’s COVID-19 related concerns and informed Mr. Zwanink about the measures that had been put in place to ensure its employees’ safety. Arrow informed Mr. Zwanink that his leave of absence would be ending on June 14, 2020, and that he was expected to return to work on June 15, 2020.
[9] On June 15, 2020, Mr. Zwanink says he came to the shipyard and spoke to Arrow’s division manager. He says he explained that “I was still uncomfortable with COVID-19, and that I felt it was a risk I could not take at my advanced age.” While he says he thought at the time that the COVID-19 safety measures implemented by Arrow did not address his “unique concerns”, as I understand from the materials before me, Mr. Zwanink did not tell the division manager at that time that he had concerns about the precautions Arrow had implemented.
[10] The division manager says he asked Mr. Zwanink if he was “not going to return to work” at Arrow, and Mr. Zwanink replied “Yes.” Mr. Zwanink returned his keys and fob. The division manager says he understood this conversation to mean that Mr. Zwanink was retiring from Arrow. Mr. Zwanink says that he did not intend to permanently resign and wanted to return either when more safety measures had been implemented or when there was less concern about the transmission of COVID-19 in people his age. He says he returned his keys and fob because he was a “team player” and a co-worker needed them at the time.
[11] That same day, the division manager completed an employee separation and termination form for Mr. Zwanink. The form indicated that Mr. Zwanink’s reason for leaving was retirement. The form also indicated that Mr. Zwanink was eligible to be rehired.
[12] The next day, on June 16, 2020, Mr. Zwanink sent the division manager an email reading:
Nice to see you yesterday and everyone in the yard. There didn’t seem to be enough work that day unless I pushed the guys working on it, out of the boat. Anytime there is work in the coming weeks I would love to come in and do the work…Asking you if it is possible and what status my employment would be in the meantime.
[13] The division manager says he found this email confusing as he had understood from his conversation with Mr. Zwanink the previous day that Mr. Zwanink had retired. The division manager replied to Mr. Zwanink’s email saying:
[Y]es, it was great to see you yesterday as well. From our conversation yesterday and the submission of your gate FOB, yard keys and subsequent collection of your tools, I took that to indicate you were retiring from your position at Arrow Marine Services. Once Payroll has processed your paperwork, your ROE will of course be issued and sent to you in due course.
If we were to need your services in the future, we would gladly have you back as a subcontractor on a job-by-job basis.
I would again like to thank you for your years of service and contributions you have made to Arrow Marine over the years. Your presence and knowledge will be missed in the yard.
Thank you again and please do not hesitate to contact me if you have any questions or concerns.
[14] Mr. Zwanink responded an hour later saying:
Thank you … I will be back soon to pick up personal tools and toolbox still in container. It was great to work for Arrow since 2005. Wishing you and Arrow Marine Services much success in the Marine business in the future.
[15] The division manager sent Mr. Zwanink his record of employment [ROE] on June 18, 2020. The ROE says that the “reason for issuing this ROE” is “Mandatory retirement/Approved workforce reduction”. Arrow explains that the ROE should have said “Quit – voluntary retirement” instead. It says the mistake was made by a payroll employee who did not understand the ROE codes correctly.
[16] In August 2020, Mr. Zwanink communicated to Arrow that he had not wished to permanently resign or retire from his employment at Arrow and asked for severance for constructive dismissal. The letter says that Mr. Zwanink did not return to work because he considered the COVID-19 measures to be limited:
On his return that day, Mr. Zwanink noticed that the workplace had severely limited measures in place for dealing with COVID-19, including no temperature checks, social distancing, or masks. Given his age and particular vulnerability, Mr. Zwanink was unable to return to work at this time. He communicated this to [the division manager] that day.
There is no dispute in the materials before me that this was the first time that Mr. Zwanink had communicated to Arrow what he considered to be the specific deficiencies in Arrow’s COVID-19 response.
[17] On September 1, 2020, Arrow wrote Mr. Zwanink inviting him back to work on September 8, 2020. Mr. Zwanink did not return to work at Arrow on September 8. Arrow sent Mr. Zwanink several follow up letters reiterating its wish that Mr. Zwanink return to employment. Mr. Zwanink did not do so. He says he felt that the offers from Arrow were disingenuous because Arrow “knew that I would not take them up on their offer while no accommodations were made to assuage my fears of transmission due to my age-related vulnerability.”
[18] Mr. Zwanink filed his human rights complaint on March 17, 2021. Mr. Zwanink alleges that his “advanced age was a factor, if not the only factor, in the Respondent’s decision to terminate his employment.”
III DECISION
[19] Arrow applies to dismiss Mr. Zwanink’s complaint on the basis that it has no reasonable prospect of success: Code, s. 27(1)(c) The onus is on Arrow to establish the basis for dismissal.
[20] 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.
[21] 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.
[22] 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.
[23] 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. If there are foundational or key issues of credibility, it is essential that the complaint go to a hearing: Francescutti v. Vancouver (City) , 2017 BCCA 242 at para 67.
[24] To prove his complaint at a hearing, Mr. Zwanink will have to prove that he has a characteristic protected by the Code , he was adversely impacted in employment, and his protected characteristic was a factor in the adverse impact: Moore v. British Columbia (Education) , 2012 SCC 61 at para. 33. If he did that, the burden would shift to Arrow to justify the impact as a bona fide occupational requirement. If the impact is justified, there is no discrimination.
[25] To justify the adverse impacts at a hearing, the Respondent would have to prove that: (1) they adopted the standard for a purpose rationally connected to the performance of the job, (2) they adopted the standard in an honest and good faith belief that it was necessary to the fulfillment of that legitimate purpose; and (3) the standard is reasonably necessary to the accomplishment of that legitimate purpose. This third element encompasses their duty to accommodate [the complainant] to the point of undue hardship: British Columbia (Public Service Employee Relations Commission) v. British Columbia Government and Service Employees’ Union (Meiorin Grievance) , [1999] 3 SCR 3 [ Meiorin ] at para. 54.
[26] I first address the termination allegation and then the discriminatory comments allegation.
A. Termination Allegation
[27] Mr. Zwanink alleged in his complaint that Arrow terminated his employment and assumed he was retiring because of his age. Mr. Zwanink says for the first time in the response to the application to dismiss that he was forced to retire because the COVID-19 precautions Arrow had implemented were insufficient. Arrow says that in doing so Mr. Zwanink is attempting to reframe the complaint and “the facts surrounding his resignation”.
[28] A complainant’s response to an application to dismiss is intended to address factual and legal argument relating to whether or not the complaint, as currently framed, should be dismissed without a hearing.
[29] Rule 24 of the Tribunal’s Rules of Practice and Procedure provides that a complainant may amend a complaint at any time up to two months before the scheduled hearing dates, without an application. However, a complainant must apply to amend a complaint when an application to dismiss the complaint is outstanding. Mr. Zwanink did not amend his complaint, nor did he apply to amend his complaint.
[30] In cases where a complainant has included new allegations in their response to a respondent’s application to dismiss, the Tribunal has frequently declined to consider any of the new allegations in the absence of an application. The Tribunal has held that it would be unfair to allow a complainant to raise new issues which are beyond the scope of the original complaint as a respondent is entitled to know the allegations it is facing in order to assess whether, and under which subsection, to bring an application to dismiss: Purdy v. Douglas College and others , 2016 BCHRT 117 at para. 37.
[31] However, it is not uncommon, or a violation to the Rules, for a complainant to add new particulars of their complaint in response to an application to dismiss: Johnson v. Conseil Scolaire Francophone de la Colombie-Britannique and others , 2024 BCHRT 253 at para. 22. The question is whether the complainant has expanded the complaint beyond what can reasonably be said to have been alleged in it: Powell v. Morton , 2005 BCHRT 282 at para. 20.
[32] I am satisfied that the facts alleged in the response to the application to dismiss are further particulars, not additional allegations that would require an amendment to the complaint. The original complaint alleged that Mr. Zwanink was terminated because of his age. The response to the application to dismiss, in my view, further explains what Mr. Zwanink meant by this allegation—i.e. that he had no other option but to leave his employment because of his age-related vulnerabilities during the early days of the COVID-19 pandemic. These alleged facts relate back to the end of Mr. Zwanink’s employment and are not completely new allegations. I therefore consider the merits of the application to dismiss as it relates to the termination allegation.
[33] Turning to the merits of Arrow’s application, Arrow’s position is that there is no reasonable prospect that Mr. Zwanink will be able to prove adverse impact because it was Mr. Zwanink who resigned. Mr. Zwanink says that he could not continue working at Arrow because he was unsatisfied with the COVID-19 precautions that had been implemented. He says he thought the “limited” COVID-19 safety measures were being inadequately enforced. Arrow replies that Mr. Zwanink did not raise these concerns with it at the time. While Mr. Zwanink may not have communicated the specific reasons for leaving to Arrow at the time, what Arrow knew or reasonably ought to have known is relevant to the accommodation analysis and will be explored below.
[34] I am not satisfied there is no reasonable prospect that Mr. Zwanink will be able to prove adverse impact. The loss of employment is an adverse impact: Walsh v. Universal Distribution , 2020 BCHRT 39 at para. 36. This is so regardless of whether Arrow terminated Mr. Zwanink’s employment, or Mr. Zwanink made the decision to leave. On the whole of the evidence, I find that Mr. Zwanink has taken this aspect of his complaint out of the realm of conjecture.
[35] Next, Arrow argues that there is no reasonable prospect that Mr. Zwanink will be able to prove a connection between his age and the loss of his job. Mr. Zwanink says he left because of his age-related vulnerabilities. He says, given his age, he needed further accommodation to stay at Arrow. I am not persuaded that under these circumstances there is no reasonable prospect that Mr. Zwanink would be able to prove that his age was a factor in the adverse treatment he says he experienced. The adverse impact he alleges is inherently connected to his personal characteristics given the risks to people of Mr. Zwanink’s age at that time in the COVID-19 pandemic.
[36] Given that Mr. Zwanink has taken his complaint out of the realm of conjecture, I now turn to whether Arrow is reasonably certain to prove a defence. Here, whether the duty to accommodate was triggered is disputed between the parties.
[37] In the accommodation process, Mr. Zwanink and Arrow had obligations. Generally, it is the obligation of the person seeking accommodation to bring forward the relevant facts: Central Okanagan School District No. 23 v. Renaud , 1992 CanLII 81 (SCC), [1992] 2 SCR 970. However, an employer has a duty to inquire if something reasonably alerts an employer that an employee may require an accommodation. This can occur even before an employee explicitly advises an employer of their protected characteristic and need for accommodation: Lewis v. Crystal Cathedral Ministries – Hour of Power Canada , 2018 BCHRT 251 at paras. 86-89. In Lewis at para. 85 the Tribunal stated:
Usually, a complainant must request accommodation in relation to the disability. In other cases, a respondent should reasonably be aware of the need for accommodation – or the possible need for accommodation – absent a clear communication.
[38] Arrow says that Mr. Zwanink did not bring forth the relevant facts sufficient to trigger its duty to inquire. In particular, it says that Mr. Zwanink did not tell Arrow his thoughts on the COVID-19 precautions at the time that he left. It says it did not know that Mr. Zwanink was unhappy with the COVID-19 safety precautions until two months after he resigned when notified through Mr. Zwanink’s lawyer that Mr. Zwanink had not intended to permanently retire. At that time, Mr. Zwanink informed Arrow of the specific limitations in Arrow’s COVID-19 safety plan, citing what he felt was deficient.
[39] Mr. Zwanink says he told Arrow the day that he was recalled that he still did not feel comfortable working during the pandemic. However, he does not say that he told Arrow that he needed further accommodation. And in the materials before me is an email he sent Arrow the next day suggesting that he left because there was not enough work and asking for more work should it become available, indicating that he was willing to return to Arrow without additional precautions. I am satisfied given the evidence before me that Arrow is reasonably certain to prove that Mr. Zwanink’s communications could not have reasonably alerted Arrow that Mr. Zwanink needed further accommodation. This is particularly so where Arrow says it had just put in place multiple precautions with the aim of ensuring employee safety, and neither party disputes that Mr. Zwanink said nothing about these precautions at the time.
[40] Finally, Mr. Zwanink says that there are key issues of credibility about whether the Arrow accommodated Mr. Zwanink up to the point of undue hardship. Arrow disagrees, saying that “The June 16, 2020 email thread clearly shows the Complainant did not believe there was enough work, ended his employment, expressed the enjoyment he experienced working for the Respondent and wished the Respondent well in the future.” My review of the materials has not raised any credibility concerns about what was said between the parties on June 15 and June 16, 2020. Again, while Mr. Zwanink may have thought that the COVID-19 precautions did not address his safety concerns, the relevant consideration here is whether what Mr. Zwanink actually said to Arrow triggered Arrow’s duty to inquire. As stated above, I am satisfied that Arrow is reasonably certain to prove that it did not know that Mr. Zwanink needed further accommodation than what it had already put in place and had no reasonable way of knowing that Mr. Zwanink considered the COVID-19 precautions insufficient—i.e. that Mr. Zwanink required further accommodation to return to the workplace.
[41] Because I am satisfied that Arrow is reasonably certain to prove a justification defence, and I dismiss this aspect of Mr. Zwanink’s complaint.
B. Discriminatory Comments Allegation
[42] Mr. Zwanink alleges that he was subjected to ageist comments while employed by Arrow. He says in response to Arrow’s application to dismiss:
I also had various instances where younger colleagues disparaged my age explicitly. For example, my colleagues at the office would continuously make remarks about how I could no longer work on boats due to my advanced age.
This is the entirety of what Mr. Zwanink says with respect to the alleged discriminatory comments. He says that Arrow should be held vicariously liable for these comments.
[43] Arrow responds that if any comments were made, it was not aware of them. However, Arrow would be liable for any discriminatory comments, if they were made, regardless of whether Arrow knew about them at the time: Pillai v. Lafarge Canada Inc. , 2003 BCHRT 26 at paras. 73 & 74.
[44] Arrow also says that this allegation should be dismissed because it is vague and unparticularized. The Tribunal may dismiss a complaint under s. 27(1)(c) where the allegations are serious, yet vague and unparticularized. The Tribunal said in Prasad v. Vancouver Shipyards , 2019 BCHRT 255, in which the complainant alleged he was subjected to several racial slurs at work:
15 The basic principle is well articulated in Kenworthy v. Brewers’ Distributor Ltd. , 2016 BCHRT 54 at para. 72:
Complainants are under an obligation to meaningfully particularize their allegations against a respondent. This serves a purpose of fairness, by allowing the respondent to know the case it has to meet. It can also serve the purpose of allowing the Tribunal to assess whether the complaint has no reasonable prospect of success…
…
18 The lack of detail in Mr. Prasad’s complaint makes it impossible for Vancouver Shipyards to know the case against it and conduct the necessary investigation to determine its defence and, if necessary, correct the situation. It also means that, if this were the only information put forward at a hearing, Mr. Prasad’s complaint could not succeed. There is not enough information to allow the Tribunal to make findings that the conduct occurred and violated the Code . Because Mr. Prasad did not respond to the application to dismiss by giving the details Vancouver Shipyards identified as missing, these allegations have no reasonable prospect of success.
(Emphasis added)
[45] Mr. Zwanink’s allegations about the discriminatory comments are vague and unparticularized. He provides little to no details about what happened, when it happened, or who was involved. At a hearing, Mr. Zwanink’s general assertion that comments were made would not be enough to prove discrimination. If this were the only information put forward at a hearing, Mr. Zwanink’s complaint could not succeed. Based on the materials before me, I am satisfied that there is not enough detail at this stage to bring this allegation out of the realm of conjecture. These allegations have no reasonable prospect of success. I dismiss this part of Mr. Zwanink’s complaint.
IV APPLICATION FOR COSTS
[46] Arrow applies for an order of costs against Mr. Zwanink for improper conduct in the course of a complaint: Code, s. 37(4). However, Arrow provides no argument, nor does it ask for a specific award. I therefore decline to award Arrow costs.
V CONCLUSION
[47] Arrow has demonstrated that there is no reasonable prospect of the complaint succeeding at a hearing. I grant Arrow’s application to dismiss. I deny the application for costs.
Robin Dean
Tribunal Member
Human Rights Tribunal