BC Human Rights Tribunal

Rogers v. Canada Life Assurance Company and another, 2024 BCHRT 308

Date Issued: October 30, 2024
File(s): CS-001398

Indexed as: Rogers v. Canada Life Assurance Company and another, 2024 BCHRT 308

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:

Lorelei Rogers

COMPLAINANT

AND:

Canada Life Assurance Company/Great West Life Assurance Company and Health Employers Association of BC

RESPONDENTS

REASONS FOR DECISION
APPLICATION TO DISMISS A COMPLAINT
Section 27(1)(a), 27(1)(b), 27(1)(c), 27(1)(d)(ii), 27(1)(f), and 27(1)(g)

Tribunal Member: Andrew Robb

On their own behalf: Lorelei Rogers

Counsel for the Respondent Canada Life Assurance Company/Great West Life Assurance Company: Tessa J. Gilmor

Counsel for the Respondent Health Employers Association of BC: Geoffrey Litherland

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I INTRODUCTION

[1] Lorelei Rogers filed a human rights complaint against Great West Life Assurance Company/Canada Life Assurance Company [ Canada Life ] [1] and the Health Employers Association of BC [ HEABC ]. She later filed an amendment to the complaint. Dr. Rogers receives long-term disability insurance benefits [ LTD ] under an employee insurance plan. Her complaint says the Respondents established and administered the plan in a way that discriminated against her, based on her mental disabilities.

[2] Dr. Rogers’ employer, the Interior Health Authority, is a member of HEABC, and HEABC supported the establishment of the insurance plan from which Dr. Rogers receives benefits. Canada Life is not the insurer, but it adjudicates and administers claims under the plan.

[3] Dr. Rogers’ complaint, as amended, includes numerous allegations about how Canada Life treated her, and how HEABC set up the insurance plan. The materials she filed are lengthy and sometimes difficult to follow. Dr. Rogers acknowledges this. She says it is a result of her disabilities. I have done my best to discern which parts of her materials are intended to describe allegations of discrimination under the Human Rights Code, and which parts are meant to be background information.

[4] I understand Dr. Rogers’ argument to be that both Respondents are responsible for the conduct described in her allegations. She says HEABC is liable for Canada Life’s actions because Canada Life was HEABC’s agent in administering the insurance plan. From the materials she filed, I understand Dr. Rogers to allege that the Respondents discriminated against her by:

a. Requiring her to attend counseling, during the “own occupation” period of her LTD claim, despite evidence that the counseling was harmful to her and aggravated the symptoms of her mental disability [the Counseling Allegation ].

b. Refusing to assist her to obtain assessments by qualified healthcare-providers, during the “own occupation” period of her LTD claim, such as a psychiatrist or neurologist [the Referrals Allegation ].

c. Requiring her to apply for Canada Pension Plan disability benefits [ CPPD ] multiple times between 2015 and 2017, and refusing or ignoring her requests for more time to complete these applications [the Applications Allegation ].

d. Requiring her to repeatedly prove she remained disabled, as a condition of receiving further LTD payments, which aggravated the symptoms of her disability [the Proof of Disability Allegation ].

e. Improperly reducing her LTD payments because she received CPPD, even though she received LTD and CPPD for two different disabilities [the Integration of Benefits Allegation ].

f. Denying her coverage for a form of treatment that she found helpful, which she refers to as SGB [the Treatment Allegation ].

g. Forcing her to give up a part-time job, which she found therapeutic, as a condition of receiving further LTD payments [the Employment Allegation ].

[5] In addition to these allegations, Dr. Rogers’ amendment to her complaint argues that the Respondents discriminated by forcing her to give them access to personal information about her medical conditions and her applications for other forms of income support, in order to continue receiving LTD. But it appears that the reason the Respondents required this information was related to the integration of her benefits and the requirement for Dr. Rogers to prove she remained disabled. I find this part of the complaint should be seen as an element of the Integration of Benefits and Proof of Disability Allegations, rather than a separate allegation of discrimination.

[6] The Respondents deny discriminating and apply to dismiss the complaint. They argue, among other things, that the complaint has no reasonable prospect of success because the Code exempts the operation of insurance plans from its prohibitions against discrimination based on disability. In addition to s. 27(1)(c) of the Code, they rely on ss. 27(1)(a), (b), (d)(ii), (f), and (g).

[7] For the reasons set out below, I grant the applications to dismiss, in part. I dismiss the complaint against HEABC. I dismiss the complaint against Canada Life apart from the Proof of Disability Allegation. This allegation will proceed to a hearing. More specifically:

· I decline to consider the Treatment and Employment Allegations because they are outside the scope of the amended complaint, and it would be unfair to permit Dr. Rogers to amend the complaint again at this stage.

· I dismiss the Applications, Counseling, and Referrals Allegations under s. 27(1)(g). I find these allegations are untimely and I decline to exercise my discretion to accept them.

· I dismiss the Integration of Benefits Allegation because I find Dr. Rogers has no reasonable prospect of proving a connection between her disabilities and the decision to integrate her benefits.

· I decline to dismiss the Proof of Disability Allegation against Canada Life. I am not satisfied, on the limited materials before me, that Canada Life has met its burden in relation to this allegation.

· I dismiss the Proof of Disability Allegation against HEABC under s. 27(1)(c). I find Dr. Rogers has no reasonable prospect of proving Canada Life was HEABC’s agent for the purposes relevant to this allegation.

[8] 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.

[9] I apologise to the parties for the Tribunal’s delay in making this decision.

II BACKGROUND

[10] HEABC is an employer association that represents many publicly funded employers in British Columbia’s healthcare sector. It established the Healthcare Benefit Trust [ HBT ], which provides health insurance benefits to employees of HEABC’s members. Among these benefits is a long-term disability insurance plan [the Plan ].

[11] HBT has an agreement with Canada Life to provide services related to the Plan. The agreement says Canada Life is responsible for adjudicating and administering claims for LTD benefits under the Plan, on behalf of HBT. Canada Life says it is only a “servicing agent” for HBT, but it does not deny that it was responsible for the decisions about Dr. Rogers’ LTD that are at issue in her complaint.

[12] Dr. Rogers worked as a nurse until 2014. She was a member of the British Columbia Nurses’ Union, which is a party to a collective agreement with HEABC. She has a doctorate in education.

[13] Under the collective agreement and the Plan, employees who receive LTD benefits must apply for certain other types of income support, including CPPD. If employees receive CPPD as a result of the same disability that caused them to be eligible for LTD, then their LTD payments are reduced by the full amount of their CPPD payments. The collective agreement refers to this as “integration of benefits”, and provides that benefits may be integrated retroactively. This means that if a person receiving LTD receives a lump sum CPPD payment, representing payments the person should have received during a period when they were receiving LTD, then HBT is entitled to the full amount of the lump sum CPPD payment.

[14] In December 2014, Dr. Rogers applied for LTD benefits. She says her application stated she was unable to work due to depression and anxiety. Canada Life approved the application in March 2015, and she began receiving monthly LTD payments. She says Canada Life required her to apply for CPPD at that time, and she did so, but her CPPD application was denied. Canada Life denies that it required her to apply for CPPD in 2015. It says it only required her to apply once, in 2017.

[15] Under the collective agreement, employees may be required to attend counseling or take other steps to prepare for a return to work, as a condition of receiving LTD. Dr. Rogers was required to attend counseling, arranged by Canada Life, during the “own occupation” period of her LTD claim. During this period, a claimant is entitled to LTD if they are unable to continue working in their own occupation, i.e. in the job they had before they stopped working, due to their disability. The “own occupation” period of an LTD claim lasts for two years after the claimant applies for LTD.

[16] Dr. Rogers says the counseling she was required to attend was unhelpful, retraumatizing, and harmful for her. She says her depression and anxiety were caused by a toxic and unsafe workplace, and the requirement for her to prepare to return to that workplace aggravated her mental health. She says she repeatedly explained this to Canada Life and asked if she could stop attending counseling, and her physician supported her, but Canada Life refused or did not respond to her requests. She also says she asked for support to access more helpful forms of treatment, and for referrals to qualified healthcare professionals, but Canada Life refused or did not respond to her requests.

[17] Canada Life periodically required Dr. Rogers to provide evidence that she remained disabled, in order to continue receiving LTD. She says it was difficult and traumatic for her to provide it, due to her disabilities. The evidence before me suggests she first notified Canada Life that explaining her condition to doctors aggravated her mental health in February 2016. Canada Life continued to require proof of continued disability, including in December 2017 and July 2019.

[18] In January 2017, Dr. Rogers’ LTD claim entered the “any occupation” period. During this period, a claimant is entitled to LTD if they are unable to work in any occupation for which they are reasonably qualified, or for which they could become reasonably qualified. It appears that Canada Life stopped requiring Dr. Rogers to attend counseling when her claim entered the “any occupation” period. The parties agree that around this time, Canada Life notified Dr. Rogers that she was required to apply for CPPD. As noted above, Dr. Rogers says Canada Life also required her to apply for CPPD on additional occasions, while Canada Life says it only required her to apply once.

[19] When Canada Life required Dr. Rogers to apply for CPPD in 2017, it also required her to sign a consent form saying that if she was found eligible for CPPD, her CPPD payments could be forwarded to Canada Life, to facilitate the integration of her benefits. Dr. Rogers refused to sign the consent form. Consequently, in February 2017, Canada Life reduced her monthly LTD payments by an amount that it says was equivalent to the national average CPPD monthly payment.

[20] Dr. Rogers says Canada Life refused to accommodate her requests for extensions of time to complete CPPD applications and other forms that Canada Life told her she must complete. She suggests this happened more than once but she does not give any specific examples in her original complaint, or the amendment to her complaint, or her argument in response to the applications to dismiss. The evidence she filed in support of her response includes documentation showing this happened on one occasion in February 2017[2] . On that occasion she told Canada Life she could only work on one application at a time, due to her disabilities, and at that time she was working on an application for workers’ compensation benefits. Canada Life appears to have interpreted this as a request for more time to complete the CPPD application, which it denied. Dr. Rogers provided copies of emails showing Canada Life decided her workers’ compensation application was not an appropriate reason to delay the CPPD application.

[21] Dr. Rogers submitted her application for CPPD in March 2017. Service Canada denied the application. She notified Canada Life about the denial in June 2017. Canada Life then stopped reducing her monthly payments and reimbursed her for the amounts that had been deducted from her LTD since February 2017.

[22] In May 2018, Dr. Rogers applied for CPPD again. She agrees that Canada Life did not require her to apply on this occasion. She says she applied anyway because she believed her CPPD benefits would not be integrated with her LTD, because her application for CPPD was based on a diagnosis of post-traumatic stress disorder, whereas her LTD claim was based on depression and anxiety, and the Plan only required integration of benefits if those benefits were for the same disability. The Respondents do not deny that her application for CPPD was based on a different diagnosis than her LTD claim. They deny that Dr. Rogers’ disabilities were more severe when she applied for CPPD than when she applied for LTD, but they do not otherwise address her assertion that she received the two types of benefits for two different disabilities.

[23] In February 2019, Dr. Rogers notified Canada Life that she was approved for CPPD. She told Canada Life she was approved based on a diagnosis of PTSD, rather than the diagnosis of anxiety and depression that qualified her for LTD. She refused to give Canada Life any information about the amount of her monthly CPPD payments. She says her refusal was justified because the collective agreement and the Plan only required integration of benefits if those benefits were for the same disability, and her benefits were for different disabilities.

[24] Canada Life did not agree with Dr. Rogers’ position that her benefits should not be integrated. In March 2019, it advised her that if she failed to provide information about her CPPD benefits, her LTD claim would be closed, and she would receive no further payments. She then provided the required information, which showed she was approved for CPPD in January 2019, retroactive to July 2017. This meant she would receive a lump sum payment representing the CPPD benefits she should have received from July 2017 to January 2019. She asked Canada Life not to deduct her CPPD from her LTD payments because they were for different disabilities, and because it would cause her financial hardship.

[25] Canada Life consulted with HBT about Dr. Rogers’ request for her benefits not to be integrated, although it does not appear that Canada Life notified HBT about Dr. Rogers’ claim that the integration of her benefits was not authorised by the Plan, since she received LTD for one disability, and CPPD for another. HBT advised that Canada Life should follow its normal procedures to deduct her CPPD from her LTD payments, and to recover the LTD overpayment arising from the lump sum payment.

[26] In April 2019, Canada Life notified Dr. Rogers that it would reduce her monthly LTD payments by the amount of her monthly CPPD payments, in accordance with the collective agreement. In May 2019, it notified her that it would reduce her monthly LTD payments by an additional amount, for the following ten months, to recover an LTD overpayment arising from her receipt of the lump sum CPPD payment. During those ten months, her monthly LTD payments were reduced to less than one third of what they had been before her CPPD application was approved. Dr. Rogers says this drove her into bankruptcy.

[27] Dr. Rogers filed this complaint on May 24, 2019. She filed an amendment to the complaint on January 20, 2020.

III DECISION

A. Preliminary issue: scope of complaint

[28] There is an issue about what allegations are included in the scope of the complaint. The Respondents say some of the allegations in Dr. Rogers’ response to the applications to dismiss are new and would broaden the scope of the complaint. For the following reasons, I find the Treatment and Employment Allegations are not part of the complaint, and it would be unfair to the Respondents if I considered them.

[29] The Respondents say the scope of the complaint is limited to the Integration of Benefits and Counseling Allegations. I disagree. The amendment filed by Dr. Rogers on January 20, 2020, also includes the Referrals, Applications, and Proof of Disability Allegations. I acknowledge that the Proof of Disability Allegation is difficult to identify, as the conduct at issue is not alleged to be discriminatory until page 62 of 89, in the amendment.

[30] I agree with the Respondents that the Treatment and Employment Allegations were raised for the first time by Dr. Rogers in response to their applications to dismiss. The Respondents say it would be unfair to allow her to further amend her complaint at this stage.

[31] A complainant who wants to amend their complaint during an outstanding application to dismiss must apply to do so: Tribunal Rules of Practice and Procedure, Rule 24(4)(b). The purpose of this rule is to ensure that a respondent who files an application to dismiss a complaint does not face a moving target: Pausch v. School District No. 34 and others, 2008 BCHRT 154 at paras. 28-29. Respondents are entitled to know the allegations against them to assess whether, or on what basis, to bring their application to dismiss the complaint: Purdy v. Douglas College and others, 2016 BCHRT 117 at paras. 35-37. At the same time, it is not uncommon, or a violation of the rules, for a complainant to add new particulars of their complaint in response to an application to dismiss.

[32] Dr. Rogers characterises the Employment Allegation as one of several failures by the Respondents to accommodate her disabilities, but even if this was a failure to accommodate her, it is different from the allegations set out in her complaint and amendment. There is nothing in the complaint or the amendment about the Respondents preventing her from seeking new employment, or about any attempt by Dr. Rogers to return to employment, after the “own occupation” period of her claim ended. In my view this is a new allegation, which would expand the scope of the complaint.

[33] The Treatment Allegation says the Respondents denied coverage for SGB treatment, but the complaint and amendment do not refer to SGB at all. Dr. Rogers does not explain how this allegation is related to her other allegations. In the absence of any information about the Treatment Allegation, such as who prescribed SGB, when Dr. Rogers sought coverage for it, or why the request was refused, I find this allegation is not within the scope of the complaint.

[34] Although Dr. Rogers did not apply to amend her complaint to include the Treatment or Employment Allegations, the Tribunal may allow an amendment during the application to dismiss process, under Rule 24(4)(b), if it would be procedurally fair to do so, and it would further the purposes of the Code: Hawknes v. Vancouver Public Library (No. 2), 2017 BCHRT 250 at para. 86. However, in this case it appears the Respondents had no notice, before they received Dr. Rogers’ response to the applications to dismiss, that she considered the facts underlying the Treatment or Employment Allegations to be discrimination. Dr. Rogers has provided limited information about these allegations and the Respondents have not had a reasonable opportunity to respond to them. I find it would not be fair to the Respondents if the Tribunal considered them.

[35] I dismiss the Treatment and Employment Allegations.

B. Section 27(1)(g)

[36] Section 27(1)(g) permits the Tribunal to dismiss a late-filed complaint. There is a one-year time limit for filing a human rights complaint under s. 22 of the Code. Section 22 is meant to ensure that complainants pursue their human rights remedies promptly so that respondents can go ahead with their activities without the possibility of a dated complaint: Chartier v. School District No. 62, 2003 BCHRT 39 at para. 12.

[37] The Respondents argue that all of Dr. Rogers’ allegations are about events that occurred more than one year before she filed her complaint, except the Integration of Benefits Allegation. They say the remaining allegations refer to events that happened over one year before the complaint was filed and are therefore out of time. [3] They say the late-filed allegations do not form a continuing contravention with the Integration of Benefits Allegation, and it is not in the public interest to accept the late-filed allegations under s. 22(3) of the Code .

[38] In the application under s. 27(1)(g), I must decide two issues: (1) whether Dr. Rogers’ allegations are late-filed, and (2) if so, whether to exercise my discretion to accept those allegations because it is in the public interest to do so and there is no substantial prejudice to any person because of the delay: Code, s. 22(3), School District v. Parent obo the Child, 2018 BCCA 136 at para. 68 .

[39] For the following reasons, I find the Proof of Disability Allegation is timely, but the Counseling, Referrals, and Applications Allegations are late-filed. I find it is not in the public interest to accept the late-filed allegations, and I dismiss them under s. 27(1)(g).

a. Were parts of the complaint late-filed?

[40] An allegation is timely if it is about discrimination that happened within one year before a complaint is filed, or it is part of a “continuing contravention” of the Code that continued until less than one year before the complaint is filed: s. 22(2); School District at para. 68 . A continuing contravention is “a succession or repetition of separate acts of discrimination of the same character” that could be considered separate contraventions of the Code: Chen v. Surrey (City), 2015 BCCA 57 at para. 23 ; School District at para. 50 . The assessment of whether discrete allegations are a continuing contravention is a “fact specific one which will depend very much on the individual circumstances of each case”: Dickson v. Vancouver Island Human Rights Coalition, 2005 BCHRT 209 at para. 17 .

[41] For allegations from more than one year before the complaint was filed to form part of a continuing contravention with an allegation falling within the time limit, the older allegations must be of the same or similar character as the timely allegation: Dove v. GVRD and others (No. 3) , 2006 BCHRT 374 at paras. 11-20; School District at paras. 52-55. In determining whether there has been a continuing contravention of the Code, a relevant factor is whether there are gaps in time between the allegations: Dickson at para. 17. A significant, unexplained, gap in time will weigh against finding a continuing contravention: Bjorklund v. BC Ministry of Public Safety and Solicitor General , 2018 BCHRT 204 at para. 14.

[42] Dr. Rogers filed this complaint on May 24, 2019, and amended it on January 20, 2020. The Respondents admit that the Integration of Benefits Allegation is timely. They did not make submissions about the Proof of Disability Allegation, which is about Canada Life requiring Dr. Rogers to prove she remained disabled. This evidence before me shows this happened in December 2017 and July 2019. Dr. Rogers suggests it happened on additional occasions, but the amendment to her complaint only suggests the July 2019 request was discriminatory, and her materials do not otherwise refer to this allegation. I understand the Proof of Disability Allegation to be about the July 2019 request, which was made after the complaint was filed, and less than one year before the amendment was filed. In the absence of any relevant submissions from the Respondent, I find the Proof of Disability Allegation is timely.

[43] It appears that Dr. Rogers’ remaining allegations are about events that occurred over one year before the complaint was filed. The Counseling and Referrals Allegations refer to events during the “own occupation” period of Dr. Rogers’ LTD claim, which ended by January 2017. In the Applications Allegation, Dr. Rogers says Canada Life refused or ignored her requests for more time to complete required forms and applications, even after she explained that she needed more time to do these tasks due to her disabilities. She suggests this happened more than once, but the materials she filed reference only one specific occasion, in February 2017.

[44] I find the Applications, Counseling, and Referrals Allegations are about events that happened over one year before the complaint was filed. The next issue I must address is whether these allegations are part of a continuing contravention of the Code along with one or both of the timely allegations, namely the Integration of Benefits and Proof of Disability Allegations.

[45] Dr. Rogers’ complaint and amendment do not explicitly allege a continuing contravention, and her materials do not address how the Tribunal’s case law on continuing contraventions applies to her allegations. She does not offer any submissions about how the Counseling, Referrals, and Applications Allegations are connected to or of the same character as the Integration of Benefits or Proof of Disability Allegations.

[46] The Respondents say the allegations from more than one year before the complaint was filed do not meet the test to be accepted as part of a continuing contravention.

[47] While all of Dr. Rogers’ allegations are about the administration of her LTD claim, in my view the Applications, Counseling, and Referrals Allegations do not have the same character as the Integration of Benefits or Proof of Disability Allegations. The Integration of Benefits and Proof of Disability Allegations are related to Dr. Rogers’ eligibility for LTD payments under the Plan, while the Counseling and Referrals Allegations are about aspects of the Plan related to treatment of her disabilities.

[48] The Applications Allegation is not of the same character as the Integration of Benefits Allegation. It alleges a failure to accommodate Dr. Rogers’ requests for more time to complete applications, whereas the Integration of Benefits Allegation alleges a discriminatory misapplication of the Plan. The Applications Allegation has more in common with the Proof of Disability Allegation, since both allege that Canada Life required Dr. Rogers to take steps to maintain her entitlement for LTD payments. But I still find they have a different character because the Proof of Disability Allegation says she was required to provide medical information to Canada Life, while the Applications Allegation says she was required to prove she had applied for CPPD. These two requirements were separate and unrelated, and they affected her entitlement to LTD in different ways.

[49] I also find there is a significant gap in time between the Applications, Counseling, and Referrals Allegations, on one hand, and the Integration of Benefits and Proof of Disability Allegations, on the other. The former allegations cover a period ending in February 2017, while the Integration of Benefits Allegation refers to events starting in February 2019 and the Proof of Disability Allegation focuses on a requirement for Dr. Rogers to prove she remained disabled in July 2019. Dr. Rogers does not explain how the Tribunal could find a continuing contravention, in light of the gap in time between these allegations.

[50] For these reasons, I find the Counseling, Referrals, and Applications Allegations do not allege a continuing contravention of the Code that includes the Integration of Benefits and Proof of Disability Allegations. This means the Counseling, Referrals, and Applications Allegations are late-filed.

b. Should the late-filed parts of the complaint be accepted?

[51] I now consider whether to accept all or part of the late-filed allegations under s. 22(3) of the Code. At this stage, the burden is on Dr. Rogers to persuade the Tribunal to accept these parts of the complaint. I can only accept late-filed allegations if I find it is in the public interest to do so, and it would not cause substantial prejudice to any person.

[52] When the Tribunal assesses the public interest in a late-filed complaint, it may consider factors like the length of the delay, the reasons for the delay, the complainant’s interest in accessing the Tribunal, the respondents’ interest in being able to continue their activities without worrying about stale complaints, whether the complainant had difficulty accessing legal advice, and the public interest in the complaint itself: British Columbia (Ministry of Public Safety and Solicitor General) v. Mzite, 2014 BCCA 220 at para. 53 and 63; Complainant v. The Board of Education of School District No. 61 (Greater Victoria) , 2022 BCHRT 44 at para. 18. These are important factors, but they are not necessarily determinative and not every factor will be relevant in every case: Goddard v. Dixon, 2012 BCSC 161 at para. 152 . The inquiry is always fact and context specific.

[53] Dr. Rogers provides little information to explain her delay in filing the complaint. In her initial complaint form, she says that after January 2019 she was overwhelmed with anxiety and stress. The Tribunal has found that where a delay is due to a disabling condition, it may be in the public interest to accept a late-filed complaint: MacAlpine v. Office of the Representative for Children and Youth , 2011 BCHRT 29 at para. 42 .

[54] It is not disputed that Dr. Rogers has had mental health disabilities since 2014, but there is no medical evidence before me about whether her disabilities affected her ability to file a human rights complaint. Dr. Rogers says her decision to file a human rights complaint was triggered by the integration of her CPPD and LTD benefits, in 2019. In her complaint form she says that until then she thought her situation would get better, because she would have a regular income. This suggests that the reason why she did not file a complaint before 2019 was not due to a disabling condition.

[55] In the absence of more information about how Dr. Rogers’ disabilities affected her ability to file a human rights complaint, I am not persuaded that there are reasons for her delay in filing that could support a finding that the public interest favours accepting the late-filed parts of the complaint.

[56] Dr. Rogers says there is a public interest in her complaint proceeding because there are many other people who face “garnishment” of their LTD benefits for a different disability than the one that qualified them for LTD. But this argument only applies to the Integration of Benefits Allegation, which the Respondents agreed is timely. It does not appear to be relevant to the late-filed parts of the complaint.

[57] The complaint was filed in May 2019. The Counseling and Referrals Allegations are from the “own occupation” period of Dr. Rogers’ LTD claim, which ended by January 2017, and the Applications Allegation is from early 2017. So the delay between the events described in these allegations and the filing of the complaint was over three years. Considering this long delay, and without any explanation for the delay from Dr. Rogers, I am not persuaded that the public interest favours accepting these parts of the complaint. This means it is unnecessary for me to consider whether accepting them would cause substantial prejudice to any person.

[58] I dismiss the Counseling, Referrals, and Applications Allegations because they are late-filed, and it is not in the public interest for the Tribunal to accept them. In the remainder of this decision I address the Integration of Benefits and Proof of Disability Allegations.

C. Section 27(1)(c) – No reasonable prospect of success

[59] The Respondents say Dr. Rogers’ complaint has no reasonable prospect of success because it is about an insurance plan, and the Code ’s prohibitions against discrimination include exemptions for insurance plans. They make this argument in their submissions under s. 27(1)(b), in terms of whether Dr. Rogers’ allegations, if proven, would establish a contravention of the Code, and in the alternative under s. 27(1)(c). In previous cases the Tribunal has preferred to address arguments about dismissal of a complaint based on the Code ’s exemptions for insurance plans under s. 27(1)(c): Barker v. Molson Coors Breweries and another , 2017 BCHRT 208 at paras. 70-73; Wallace v. Westcan Industries and another , 2018 BCHRT 209 at para. 15. As in those cases, I find I can address this issue most effectively under s. 27(1)(c).

[60] Section 27(1)(c) of the Code 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. The onus is on the Respondents to establish the basis for dismissal.

[61] The Tribunal does not make findings of fact under s. 27(1)(c). Instead, it 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. 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 942 at para. 77 .

[62] 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 .

[63] To prove her complaint at a hearing, Dr. Rogers will have to prove she has a characteristic protected by the Code, she was adversely impacted in an area to which the Code applies, 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 the Respondents to justify the impact as a bona fide reasonable justification.

[64] The Respondents do not deny that Dr. Rogers has disabilities. But they say she has no reasonable prospect of proving she experienced adverse treatment that was connected to her disabilities. They also rely on the Code ’s exemptions for insurance plans, which create a defence to claims of discrimination about such plans. In the application under s. 27(1)(c), I must decide if the Respondents are reasonably certain to prove this defence at a hearing: Purdy at para. 50.

[65] There is an issue about whether to consider the complaint under s. 8 of the Code, which prohibits discrimination regarding any accommodation, service or facility customarily available to the public, or s. 13, which prohibits discrimination regarding employment. Determining the appropriate section is important because the Code ’s exemption for insurance plans under s. 8 is different from the exemption under s. 13.

[66] Dr. Rogers’ human rights complaint form indicated the alleged discrimination was in the area of employment, but the Tribunal issued a Notice of Complaint Proceeding indicating that the complaint alleged discrimination in an accommodation, service or facility. The Respondents say the complaint should be considered under s. 13. They cite Jones obo others v. Coast Mountain Bus Company and others, 2014 BCHRT 166, where the Tribunal found that a complaint about the administration of a long-term disability insurance plan incorporated into a collective agreement, like the Plan, engaged s. 13 of the Code, not s. 8: Jones at paras. 62 to 71 and 81 to 82.

[67] I agree with the reasoning in Jones, and I find Dr. Rogers’ complaint is most appropriately considered under s. 13 of the Code. I find that it would not be unfair to the parties to consider it under s. 13, for the purpose of this application. The Respondents and Dr. Rogers all provided submissions about whether the Plan is a bona fide employee insurance plan, under s. 13(3)(b). The Respondents’ submissions also include arguments in the alternative, about whether the discrimination alleged by Dr. Rogers relates to the determination of premiums or benefits under a contract of health insurance, under s. 8(2)(b), but Dr. Rogers does not address these alternative arguments. Since all parties have addressed the exemption set out at s. 13(3)(b), and they do not object to the Tribunal determining the matter under s. 13 rather than s. 8, I am satisfied that it is appropriate to consider the complaint under s. 13.

a. Section 13(3)(b)

[68] Section 13(3)(b) of the Code says the prohibition against disability-based discrimination in employment does not apply “to the operation of a bona fide group or employee insurance plan, whether or not the plan is the subject of a contract of insurance between an insurer and an employer.”

[69] For the following reasons, I find the Respondents are reasonably certain to establish the Plan is a bona fide insurance plan within the meaning of s. 13(3)(b), but I am not satisfied they are reasonably certain to establish the Proof of Disability and Integration of Benefits Allegations are about the operation of the Plan.

[70] In New Brunswick (Human Rights Commission) v. Potash Corporation of Saskatchewan Inc. , 2008 SCC 45 [ Potash ], at para. 41, a majority of the Supreme Court of Canada found that a bona fide pension plan is one that is legitimate, adopted in good faith, and not for the purpose of defeating rights. The Tribunal has adopted the same definition of a bona fide insurance plan: Johnston obo others v. City of Vancouver (No. 2), 2015 BCHRT 90 at para. 71.

[71] The Respondents say the Plan is a bona fide insurance plan. They rely on the fact that it is a negotiated plan, adopted in good faith under the collective agreement between HEABC and Dr. Rogers’ union, and it covers a wide range of employee benefits. They say that under the Plan, premiums are paid for disability coverage and claims are adjudicated based on the terms of the Plan.

[72] Dr. Rogers says the Plan is not a bona fide insurance plan, but a wage loss benefit scheme, or a self-funded payment scheme. As I understand it, her argument is based on the Plan’s funding structure, in which HBT pays out claims from funds it receives from employers who are members of HEABC. Dr. Rogers distinguishes this structure from insurance plans which are underwritten by an insurer that pays out claims from a fund consisting of premiums paid by policyholders.

[73] I am not persuaded that the fact that HBT pays out claims directly, rather than relying on an external insurer to pay out claims from a fund consisting of policy-holders’ premiums, supports Dr. Rogers’ argument that the Plan is not bona fide. Dr. Rogers relies onPaller v. Great West Life Assurance Co., 2003 BCSC 582, at para. 66, where the Court distinguished the structure of the Plan from that of more conventional insurance schemes. But Paller was a decision about entitlement to benefits under the Plan; it did not address whether the Plan was bona fide, within the meaning of Potash and the Code. Dr. Rogers does not cite any authority suggesting the Plan is not bona fide within the meaning of s. 13(3)(b). Nor does she address Jones, where the Tribunal found that an insurance plan operated by a trust similar to HBT, with a similar self-funding element, was bona fide: Jones at paras. 15 to 21 and 75 to 78.

[74] Dr. Rogers also suggests the Plan aims to divert workers’ compensation claims, for injuries sustained in employment, away from WorkSafeBC and towards employer-funded insurance benefits. She says HEABC was motivated to set up the Plan, in part, to keep WorkSafeBC premiums low for its members. She makes this argument in the context of explaining why HEABC is liable for the discrimination she alleges, but she also appears to suggest that it shows the Plan is not bona fide, because HEABC had ulterior, cost-cutting motives for implementing it.

[75] Even if HEABC was responsible for a decision to structure the Plan in a way that prioritised cutting costs, this would not necessarily suggest that it intended to defeat rights protected by the Code. I consider that the Plan was negotiated during collective bargaining between HEABC and Dr. Rogers’ union, which has ample experience in safeguarding its members’ interests. There is no evidence before me that could support an inference that the Plan is not legitimate or that it was not adopted in good faith. Even if the Respondents could have created a more generous LTD plan or administered it with less of a focus on efficiency, that does not mean the Plan is not bona fide: Barker v. Molson Coors Breweries and another (No. 3) , 2019 BCHRT 192 at para. 50.

[76] I find that the Respondents are reasonably certain to prove the Plan is a bona fide insurance plan, within the meaning of s. 13(3)(b) of the Code. This means a human rights complaint about the operation of the Plan has no reasonable prospect of success.

[77] All of Dr. Rogers’ allegations are related to the Plan and its administration, but this does not necessarily mean they have no reasonable prospect of success due to s. 13(3)(b). The Tribunal has found the exemption at s. 13(3)(b) applies to the operation of bona fide plans, but not the application of such plans, where an employee alleges that the application of the plan discriminates based on one or more personal characteristics protected by the Code, including the characteristics listed in s. 13(3)(b): Morris v. BC Public Service Agency , 2017 BCHRT 27 at para. 29. So in considering the Integration of Benefits and Proof of Disability Allegations, I must decide whether the Respondents are reasonably certain to prove these allegations are about the operation of the Plan.

b. Integration of Benefits Allegation

[78] I find the Respondents are reasonably certain to prove the requirement for integration of benefits, in general, is part of the operation of the Plan. The Plan and the collective agreement make it clear that integration of benefits is mandatory, for all LTD beneficiaries. This includes the requirement for beneficiaries to give Canada Life personal information about their applications for CPPD and other forms of income support, because this information is necessary for the integration of benefits. So to the extent that Dr. Rogers suggests that integration of benefits under the Plan is generally or inherently discriminatory, I find the Respondents are reasonably certain to establish it was part of the operation of a bona fide employee insurance plan, and therefore exempt from s. 13 of the Code. I would dismiss this part of the complaint.

[79] However, the Integration of Benefits Allegation is not just about the general requirement for integration of benefits, under the Plan. Dr. Rogers argues that the Plan did not require integration of benefits in her case because she receives LTD for one disability, and CPPD for another, and the Plan only requires integration of benefits received for the same disability. She says this means there was no authority for Canada Life to deduct her CPPD benefits from her LTD.

[80] The Respondents do not deny Dr. Rogers’ claim that she was found eligible for LTD based on diagnoses of anxiety and depression, whereas she was found eligible for CPPD based on a diagnosis of PTSD. They do not address whether these diagnoses are related to the same disability. They deny that her disabilities were more severe when she applied for CPPD than when she applied for LTD, but they make no further submissions on this issue. Nor do they offer any submissions in response to Dr. Rogers’ argument that the Plan requires integration only with respect to benefits received for the same disability.

[81] I note that Dr. Rogers says her union advised her that the integration of her benefits was not a breach of the collective agreement or the Plan, but there is no evidence before me about how the union reached this conclusion.

[82] Without any evidence about the correct interpretation of the Plan, or any relevant submissions from the Respondents, I will assume, without deciding, that the deduction of Dr. Rogers’ CPPD benefits from her LTD was not authorised by the Plan. If it was not authorised by the Plan, then it is difficult to see how it could be part of the operation of the Plan. I find the Respondents are not reasonably certain to prove the decision to integrate Dr. Rogers’ benefits was part of the operation of the Plan, such that s. 13(3)(b) applies to this decision.

[83] Since the Respondents have not satisfied me that they are reasonably certain to prove s. 13(3)(b) applies to the Integration of Benefits Allegation, I must consider whether this allegation has no reasonable prospect of success under the Moore analysis.

[84] The Respondents say Dr. Rogers has not established a connection between her disabilities and the way they treated her. They say the decision to integrate her benefits was not related to her disabilities and was not discriminatory.

[85] I understand Dr. Rogers’ argument to be that if the Respondents assumed the disability that qualified her for LTD was the same as the disability that qualified her for CPPD, despite the different diagnoses upon which her applications for these two different benefits were based, then this assumption was discriminatory. She says the reduction in her LTD benefits arising from the integration of her benefits caused financial hardship, which in turn aggravated her mental disabilities, and created barriers for her in accessing potentially helpful treatment.

[86] I am not satisfied that Dr. Rogers has taken the connection between the integration of her benefits and her disabilities out of the realm of conjecture, for the following reasons.

[87] Even if the decision to integrate Dr. Rogers’ benefits was not authorised by the Plan or the collective agreement, that does not necessarily mean it was discriminatory. The Tribunal does not review the decisions of disability benefit-providers or administrators to determine whether they are correct or fair. The Tribunal has found, in the context of complaints about disability benefits, that a wrong or unfair decision by the benefit-provider is not enough to establish discrimination: Ingram v. Workers’ Compensation Board and others, 2003 BCHRT 57 at para. 20; Dithurbide v. North Central and Sun Life , 2008 BCHRT 384 at para. 70. In order to prove discrimination in this context, a complainant must establish a connection between the error or unfairness and their disability. In response to an application to dismiss, they must show this connection is based on more than speculation or conjecture.

[88] Dr. Rogers’s argument suggests that a stereotype or discriminatory assumption about mental health disabilities led Canada Life to conclude that her different diagnoses were really about the same disability, for the purposes of the Plan. My difficulty with this is that Dr. Rogers has not explained what the stereotype was, or what evidence supports the allegation that a stereotype was a factor in the decision to integrate her benefits. Without that information, the allegation appears to be that the decision to reduce her LTD was simply wrong or unfair. As I already described, this is insufficient to bring the connection between her disability and the adverse effect out of the realm of conjecture.

[89] Dr. Rogers argues that the reduction in her benefits caused financial hardship, which aggravated her mental disability and created barriers to her obtaining treatment. The Respondents do not deny this. But again, I am not persuaded that this is sufficient to bring the connection between her disability and the adverse effect out of the realm of conjecture. If the financial implications of a denial or reduction of benefits, and the subsequent impact of the loss of income, were sufficient to establish discrimination, then almost any benefit denial or reduction could be discriminatory.

[90] For these reasons, I find the Integration of Benefits Allegation has no reasonable prospect of success.

c. Proof of Disability Allegation

[91] Dr. Rogers says the requirement for her to prove she remained disabled, in July 2019, was discriminatory. The Respondents’ applications to dismiss do not address the Proof of Disability Allegation. They say the whole complaint should be dismissed under s. 27(1)(c). But without submissions from the Respondents about the Proof of Disability Allegation, I am not satisfied that this allegation has no reasonable prospect of success.

[92] The burden is on the Respondents to show they are reasonably certain to prove the Code ’s exemption for insurance plans applies to the Proof of Disability Allegation. I find they have not met this burden.

[93] The requirement for LTD recipients to provide proof of continuing disability can be inferred from the Plan’s definition of disability, which makes receipt of LTD conditional upon the recipient being unable to perform the duties of their own occupation (during the “own occupation” period of the claim) or any occupation for which they are qualified (during the “any occupation” period). This suggests that LTD recipients may be required to provide proof of a continuing disability, as part of the operation of the Plan. However, the Plan does not appear to indicate how often or in what circumstances recipients must provide proof of continuing disability. The timing and frequency of requests for proof of continuing disability are apparently up to the discretion of Plan administrators. This could suggest that decisions about when to make such requests are part of the application of the plan, rather than its operation.

[94] Without any submissions from the Respondents about the Proof of Disability Allegation, or about the distinction between the operation of insurance plans and their application, I am not satisfied that they are reasonably certain to prove the decision to require Dr. Rogers to prove she remained disabled, in July 2019, was part of the operation of the plan.

[95] Since the Respondents have not satisfied me that they are reasonably certain to prove that s. 13(3)(b) applies to the Proof of Disability Allegation, I must consider whether this allegation has no reasonable prospect of success under the Moore analysis.

[96] The Tribunal has found that a request for medical information to substantiate entitlement to disability benefits may be discriminatory if the request is a form of harassment, or if the complainant’s disability creates a barrier to complying with the request: Rafuse v. British Columbia (Ministry of Tourism), 2000 BCHRT 42 at para. 130; de Champlain v. BC Ministry of Health, 2018 BCHRT 252 at paras. 67 and 73. Dr. Rogers’ allegations suggest that both situations applied in her case. The amendment to her complaint says the July 2019 request for proof of continued disability, which was repeated in four demand letters, was punitive, in light of the Service Canada documents she had recently provided, which state that she is severely and permanently disabled from any work. I interpret this to mean she believed the request was a form of harassment.

[97] The amendment to her complaint also explains how Dr. Rogers faced disability-related barriers to complying with requests for proof that she remained disabled. It says she advised Canada Life, on February 10, 2016, that visits to doctors to update them on her condition aggravated her mental health, and it took days to recover from these visits. It also says Canada Life’s requests for proof of continued disability required her to repeatedly “stutter and cry through a decent explanation of my condition”, and this was traumatising for her.

[98] Even if requests for proof of continued disability caused trauma for her, there is little evidence to support Dr. Rogers’ allegation that the July 2019 request was punitive, or that it was a form of harassment. She suggests the request was unnecessary because the Service Canada documents she provided to Canada Life shortly before July 2019 showed she was permanently disabled. But those documents are not before me, and it is not clear that they established whether she met the Plan’s definition of disability. The medical evidence before me does not suggest she would never be able to return to work: a form filled in by her psychiatrist in October 2019, discussed in more detail below, indicated her prognosis was fair to good.

[99] Dr. Rogers’ allegation that she faced disability-related barriers to compliance with the request for proof of continued disability finds more support in the evidence she provided. The form filled in by her psychiatrist in October 2019, called “Attending Physician’s Statement of Continuing Disability”, refers to her agitation and anxiety during the psychiatrist’s examination. This is consistent with Dr. Rogers’ own evidence that having to repeatedly explain her condition to doctors was traumatising for her.

[100] Dr. Rogers was eventually able to comply with the July 2019 request for proof of continued disability. But in cases where a complainant’s disability impairs their ability to comply with medical reporting requirements, the relevant issue is not whether the complainant was incapable of complying with the request, but whether their disability created a barrier to compliance: de Champlain at para. 73. In this regard, I note that while Dr. Rogers had previously complied with Canada Life’s requests for proof of continuing disabilities, the evidence before me shows that she had also explained to Canada Life that this was traumatic for her, as early as February 10, 2016.

[101] On the evidence before me, the Tribunal could determine, after a hearing, that Dr. Rogers’ agitation and anxiety arising from having to repeatedly explain her mental health condition was a disability-related barrier to compliance with the request for proof of continued disability.

[102] Considering the evidence provided by Dr. Rogers, and without any submissions from the Respondents about the Proof of Disability Allegation, I am not persuaded that Dr. Rogers has no reasonable prospect of proving she experienced an adverse impact, which was connected to her disabilities, as a result of Canada Life’s request for her to prove she remained disabled, in July 2019. I find she has taken this connection out of the realm of conjecture.

[103] Canada Life may have had good reason for requiring Dr. Rogers to prove she remained disabled, in July 2019: the type of disabilities that affect her are not necessarily permanent and the medical evidence before me, including the October 2019 “Attending Physician’s Statement of Continuing Disability”, does not suggest she would never be able to return to work. However, the Respondents did not make submissions about whether the conduct described in the Proof of Disability Allegation could be justified under the Code.

[104] In the absence of any submissions or evidence about what standard Canada Life’s requests for proof of continued disability were based on, or whether Dr. Rogers’ barriers to complying with the requests could have been accommodated without undue hardship, I am not persuaded that the Respondents are reasonably certain to prove the requirement for Dr. Rogers to prove she remained disabled, in July 2019, was justified under the Code.

[105] I am not satisfied that the Proof of Disability Allegation has no reasonable prospect of success. But the requests for proof of continued disability described in this allegation were made by Canada Life. In the next section of this decision I consider whether there is no reasonable prospect that HEABC could be found liable for this allegation.

d. Liability of HEABC

[106] Dr. Rogers’ complaint against HEABC is based on her claim that Canada Life is an agent of HEABC, for the purpose of administering the Plan, and HEABC is responsible for Canada Life’s decisions and conduct. HEABC denies this. It says it had no control over the decisions of Canada Life which are the subject of Dr. Rogers’ complaint, and it has no duty to Dr. Rogers under the Code.

[107] For the following reasons, I find Dr. Rogers has no reasonable prospect of proving that Canada Life was HEABC’s agent, or that HEABC was responsible for the conduct described in the Proof of Disability Allegation.

[108] HEABC makes its argument that it was improperly named as a respondent under s. 27(1)(b) of the Code, on the basis that the acts alleged in the complaint do not contravene the Code. I find it more appropriate to address this argument under s. 27(1)(c), where the analysis considers whether there is no reasonable prospect that the complaint will succeed. I am satisfied this would not create any unfairness for Dr. Rogers because she says her submissions focus on taking her allegations beyond mere speculation, and she includes evidence that she says demonstrates that Canada Life was acting as HEABC’s agent. In other words, she argues that the evidence shows her allegations are based on more than mere speculation and conjecture, which is the issue under s. 27(1)(c).

[109] HEABC acknowledges it played a role in establishing the Plan. It says it sourced an LTD benefit plan that met the requirements of the collective agreement, on behalf of Dr. Rogers’ employer. But it says it had no role in administering the Plan.

[110] Dr. Rogers says HEABC contracts with Canada Life to administer the Plan. In her application for reconsideration of the Tribunal’s initial decision not to accept her complaint against HEABC, she cited the “explanation of benefits” documents which she receives with her monthly LTD payments, which say her benefits are funded by HEABC. The Respondents do not explain why the monthly explanation of benefits documents say this, but Canada Life provided a copy of the contract under which it administers the Plan. The contract is between Canada Life and HBT, and does not appear to refer to HEABC. The evidence before me also includes email correspondence between Canada Life and HBT staff, which shows that when Dr. Rogers asked Canada Life not to integrate her benefits, Canada Life consulted with HBT, not HEABC, about this request. There is no evidence before me of any communication between Canada Life and HEABC, in relation to Dr. Rogers’ LTD claim or the Plan in general.

[111] For these reasons, despite what it says in Dr. Rogers’ explanation of benefits documents, I find she has no reasonable prospect of proving that HEABC contracts with Canada Life to administer the Plan.

[112] Dr. Rogers also suggests that HBT is an agent of HEABC, and if Canada Life is an agent of HBT then by extension it must also be an agent of HEABC. To make this argument, she relies on published reports and articles about HEABC’s origin and the services it provides. She says these documents show that HEABC provides more than bargaining agent services to its members—it ensures that all its members, including Dr. Rogers’ employer, follow standard practices regarding human resources matters, including employment benefits.

[113] Further, Dr. Rogers says a non-arm’s length relationship between HEABC and HBT can be inferred from the fact that the two organisations share office facilities and support staff, at their headquarters in Vancouver. She also says HEABC is represented on HBT’s board of trustees. HEABC does not deny this.

[114] Dr. Rogers relies, in part, on the decision of the BC Supreme Court in Paller, where the Court observed that HEABC has certain powers over HBT, and found that HBT is an agent of HEABC for the purposes of carrying out HEABC’s duties under a collective agreement to which HEABC was a party: Paller at paras. 67 to 69. In response, HEABC cites subsequent case law, by the BC Supreme Court and labour arbitrators, which purport to limit the scope of the finding in Paller. These cases suggest Paller is not authority for concluding that HBT is the agent of HEABC for all purposes: Armstrong et al v. Finnson, 2005 BCSC 1705 at para. 49. HEABC argues that HBT is not its agent for the purpose of determining the amount of LTD payable to claimants.

[115] Dr. Rogers also cites Health Employers’ Association of British Columbia v. Hospital Employees’ Union , 2010 CanLII 91433 (BC LA) (she refers to this case as the Burke decision). She says it gives a historical review of the roles of HEABC, HBT, and Canada Life, in administering LTD plans. But it is not clear to me how this decision supports her position. It says, among other things, that “HBT and [Canada Life] receive no direction from HEABC in the adjudication of individual claims.” It also says decisions about how to ensure claimants are disabled, within the meaning of the Plan, are up to Canada Life, not HEABC or HBT. This does not suggest that HEABC was responsible for the conduct described in the Proof of Disability Allegation.

[116] There is evidence that HEABC is partly responsible for setting the terms of the Plan, as the bargaining agent for Dr. Rogers’ employer, but there is no evidence before me that could suggest HEABC has any further involvement in the administration of the Plan, including the decisions at issue in the Proof of Disability Allegation. Even if HEABC has a non-arm’s length relationship with HBT, as Dr. Rogers argues, this does not mean HBT or Canada Life are HEABC’s agents for all purposes.

[117] Dr. Rogers argues that HEABC and HBT worked together to design the terms and scheme of the Plan. But even if this is true, it does not mean HEABC is responsible for all decisions made in the administration of the Plan. There is no evidence before me that could connect HEABC to the decision to require Dr. Rogers to prove she remained disabled, in July 2019. Even if HBT is HEABC’s agent for some purposes, and Canada Life is HBT’s agent, there is nothing in the materials filed by Dr. Rogers that could suggest Canada Life was HEABC’s agent for this purpose.

[118] I find Dr. Rogers has no reasonable prospect of proving HEABC was responsible for the Proof of Disability Allegation.

e. Conclusion on s. 27(1)(c)

[119] I find the Integration of Benefits Allegation has no reasonable prospect of success, against HEABC or Canada Life.

[120] I find Dr. Rogers has no reasonable prospect of proving HEABC is liable for the Proof of Disability Allegation. Since this is the only remaining allegation against HEABC, I find the complaint against HEABC has no reasonable prospect of success.

[121] I am not persuaded that the Proof of Disability Allegation has no reasonable prospect of success in the complaint against Canada Life. I dismiss Canada Life’s application under s. 27(1)(c), in relation to this allegation.

[122] In the following sections of this decision I consider Canada Life’s application to dismiss under ss. 27(1)(a), 27(1)(b), 27(1)(d)(ii), and 27(1)(f) of the Code, with a focus on the Proof of Disability Allegation.

D. Section 27(1)(a) – No jurisdiction

[123] Section 27(1)(a) permits the Tribunal to dismiss all or part of a complaint that is not within its jurisdiction. Canada Life says the Tribunal has no jurisdiction to hear the substance of Dr. Rogers’ complaint because the collective agreement says disputes related to disability claims under the Plan must be resolved by a Claims Review Committee consisting of three medical doctors, in accordance with the Plan. It says Dr. Rogers has not sought dispute resolution by the Claims Review Committee.

[124] Canada Life does not cite any authority for its argument that the Tribunal has no jurisdiction to hear the complaint on this basis. The part of the collective agreement that it relies on says employees may ask the Claims Review Committee to review decisions by Canada Life, but it does not purport to limit the jurisdiction of the Tribunal, or any other decision-maker.

[125] I am not persuaded that the collective agreement limits the Tribunal’s jurisdiction to adjudicate whether the conduct that Dr. Rogers complains about was discriminatory under the Code.

[126] I deny Canada Life’s application under s. 27(1)(a).

E. Section 27(1)(b) – No arguable contravention

[127] Section 27(1)(b) of the Code gives the Tribunal the discretion to dismiss all or part of a complaint if it does not allege facts that could, if proven, contravene the Code. Under s. 27(1)(b), the Tribunal only considers the allegations in the complaint and information provided by the complainant.

[128] In light of my finding that Canada Life has not shown the Proof of Disability Allegation has no reasonable prospect of success, I am satisfied that this allegation sets out facts that could, if proven, contravene the Code. It describes adverse impacts on Dr. Rogers, and a connection between those impacts and her disabilities. It also sets out facts that would, if proven, show that Canada Life is responsible for the adverse impacts, as the administrator of the Plan.

[129] I deny Canada Life’s application under s. 27(1)(b).

F. Section 27(1)(d)(ii) – Proceeding would not further the purposes of the Code

[130] Section 27(1)(d)(ii) allows the Tribunal to dismiss a complaint where proceeding with it would not further the purposes of the Code. These purposes include both private and public interests: s. 3. Deciding whether a complaint furthers those purposes is not only about the interests in the individual complaint. It may also be about broad public policy issues, like the efficiency and responsiveness of the human rights system, and the expense and time involved in a hearing: Dar Santos v. UBC, 2003 BCHRT 73 , at para. 59 , Tillis v. Pacific Western Brewing and Komatsu, 2005 BCHRT 433 at para. 15, Gichuru v. Pallai (No. 2), 2010 BCHRT 125, at paras. 113-118.

[131] Canada Life says proceeding with the complaint would not further the purposes of the Code because it would unjustly enrich Dr. Rogers. It says it has not singled out Dr. Rogers but has treated her the same as any other LTD claimant. Canada Life does not cite any authority for its argument that these factors should be considered in an application under s. 27(1)(d)(ii), and does not specifically refer to any of the purposes listed at s. 3 of the Code. Its argument appears to be relevant to the Integration of Benefits Allegation, but not to the Proof of Disability Allegation. In any event, I am not persuaded that proceeding with the complaint would unjustly enrich Dr. Rogers. The Tribunal does not consider issues related to remedies in an application to dismiss. Whether or not Dr. Rogers is entitled to a monetary remedy will be determined at a hearing.

[132] Canada Life also says the complaint is difficult to understand and includes irrelevant background facts and documents. Based on Dr. Rogers’ conduct in this complaint process to date, it says that a hearing of the complaint would likely take several weeks, and this would be an inefficient use of the Tribunal’s resources. I am not persuaded that the potential length of the hearing supports a finding that proceeding would not further the purposes of the Code, especially considering my decision to dismiss the entire complaint against HEABC, and most of Dr. Rogers’ allegations against Canada Life. My decision significantly narrows the scope of the complaint, which should reduce the length and complexity of a hearing.

[133] I deny Canada Life’s application under s. 27(1)(d)(ii).

G. Section 27(1)(f) – Substance of complaint appropriately resolved in another proceeding

[134] Canada Life says the complaint should be dismissed because its substance has been appropriately dealt with in other proceedings brought by Dr. Rogers, including a court action in the British Columbia Provincial Court, filed May 6, 2019 [the Small Claims Action ], and a complaint to the Office of the Information and Privacy Commissioner of British Columbia [ OIPC ] about disclosure of information about her CPPD claim to Canada Life. Canada Life says the OIPC complaint was dismissed in January 2020.

[135] Canada Life also refers to proceedings initiated by Dr. Rogers against other parties, including her employer, her union, and others. It says her lengthy submissions in multiple forums are an abuse of process, and the allegations in her complaint are more appropriately addressed in those other proceedings.

[136] The Tribunal may dismiss a complaint under s. 27(1)(f) of the Code if the substance of the complaint has been appropriately dealt with in another proceeding. 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: Figliola at paras. 25 and 36.

[137] To decide whether the substance of a complaint has been appropriately dealt with in another proceeding, the Tribunal must consider whether the other proceeding had jurisdiction to decide human rights issues under the Code, whether the previously decided issue is the same as what is being complained of to the Tribunal, and whether the complainant had the opportunity to know the case to be met and have a chance to meet it, in the proceeding: British Columbia (Workers’ Compensation Board) v. Figliola , 2011 SCC 52 [ Figliola ] at para. 37

[138] Canada Life does not address the Figliola factors. There is no evidence or authority before me that could suggest the OIPC had jurisdiction to decide human rights issues under the Code. The legal issue that Dr. Rogers brought before the OIPC appears to have been whether Canada Life improperly collected information about Dr. Rogers’ successful application for CPPD. This is not the same as the issue in the Proof of Disability Allegation, which is about whether Canada Life’s use of its discretion in administering the Plan amounted to discrimination on the ground of Dr. Rogers’ disabilities.

[139] Canada Life provided a copy of Dr. Rogers’ Notice of Claim filed in the Small Claims Action. It appears to address the same events described in the Integration of Benefits Allegation, but it does not address the Proof of Disability Allegation. In any event, there is no evidence before me about how the Small Claims Action was resolved, or if it was resolved at all. Canada Life does not suggest that the Court has made any decision about the Small Claims Action. Without this information, I cannot find that any of Dr. Rogers’ allegations were appropriately dealt with in the Small Claims Action.

[140] I am not persuaded that the substance of the Proof of Disability Allegation was appropriately dealt with in any of the other proceedings referred to by Canada Life.

[141] I deny Canada Life’s application under s. 27(1)(f).

IV CONCLUSION

[142] The complaint against HEABC is dismissed.

[143] The complaint against Canada Life is dismissed, in part. The Proof of Disability Allegation shall proceed to a hearing.

Andrew Robb

Tribunal Member