Day v. British Columbia (Workers’ Compensation Appeal Tribunal) and another (No. 2), 2024 BCHRT 314
Date Issued: November 5, 2024
File: CS-006638
Indexed as: Day v. British Columbia (Workers’ Compensation Appeal Tribunal) and another (No. 2), 2024 BCHRT 314
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:
Claire Day
COMPLAINANT
AND:
Workers’ Compensation Appeal Tribunal and Kim Halkett
RESPONDENTS
REASONS FOR DECISION
APPLICATION TO ADD A RESPONDENT
Rule 25
Tribunal Member: Beverly Froese
On their own behalf: Claire Day
Counsel for the Respondent Workers’ Compensation Appeal Tribunal: Justin Mason
Counsel for the Respondent Kim Halkett: Jordan A. Bank
Counsel for the Proposed Respondent: Kayla Bergsson
I INTRODUCTION
[1] In September 2021, Claire Day filed a complaint against the Respondents alleging discrimination regarding her employment based on physical and mental disability, and age contrary to s. 13 of the Human Rights Code . Specifically, Ms. Day alleges that the Respondents discriminated against her by failing to accommodate her disabilities and suggesting she consider retiring.
[2] In August 2023, the Tribunal deferred the complaint under s. 22 of the Codeon the basis that the grievance process under the collective agreement governing the employment relationship between Ms. Day and the Workers’ Compensation Appeal Tribunal [WCAT] was capable of appropriately dealing with the substance of the complaint.
[3] In early July 2024, the Tribunal lifted the deferral so it could consider whether to accept an amendment that Ms. Day wanted to make to her complaint and to deal with this application to add the BC General Employees’ Union [BCGEU] as a respondent. In late July 2024, the Tribunal accepted Ms. Day’s amendment and set a submission schedule on her application to add BCGEU as a respondent.
[4] BCGEU opposes the application on the basis that Ms. Day has not alleged facts against it that, if proven, could constitute a violation of the Code, and that adding BCGEU is not in the public interest.
[5] The Respondents take no position on the application.
[6] For the reasons set out below, Ms. Day’s application is denied. I find that BCGEU should not be added as a respondent because the allegations against it, if proven, do not establish a breach of the Code .
[7] To make this decision, I have considered all the information filed by Ms. Day and BCGEU. In these reasons, I only refer to what is necessary to explain my decision. I make no findings of fact.
II DECISION
[8] Under Rule 25(2) of the Tribunal’s Rules of Practice and Procedure , a complainant must apply to add a respondent to their complaint. In their application, a complainant must state why adding the proposed respondent would further the just and timely resolution of the complaint: Rule 25(2)(a).
[9] The allegations against the proposed respondent must contain facts that, if proven, could establish a breach of the Code : Rule 25(2)(b). In other words, Ms. Day must allege facts that, if proven, could establish that she experienced an adverse impact regarding her employment or membership in BCGEU and her protected characteristic was a factor in that adverse impact: Moore v. BC (Education), 2012 SCC 61 at para. 33. The threshold is low. The Tribunal assumes the alleged facts can be proven and does not take into consideration alternative explanations or defences put forward by the proposed respondent: Buchanan v. Providence Health Care and others, 2023 BCHRT 50 at paras. 20-22.
[10] If the application to add a respondent is made after the one-year time limit to make a complaint, the application must state “why it is in the public interest to add the proposed respondent to the complaint and why no substantial prejudice will result to any person because of the delay”: Rule 25(2)(c).
[11] In her application, Ms. Day does not indicate the area in which she is alleging discrimination by BCGEU.
[12] There are two provisions of the Code under which complainants generally seek to establish discrimination by a union. First, s. 13 prohibits unions from causing or contributing to workplace discrimination “by participating in the formulation of the work rule that has the discriminatory effect on the complainant”: Central Okanagan School District No. 23 v Renaud, 1992 CanLII 81 (SCC), [1992] 2 SCR 970 [Renaud] at p. 990. Another example of discrimination by a union under s. 13 is “if the union impedes the reasonable efforts of an employer to accommodate” the complainant: Renaud at p. 991.
[13] Second, s. 14 prohibits discrimination by unions and associations in the services they provide to their members. Examples of discrimination by a union under this section are if the union treats the complainant worse than it would have treated another member in similar circumstances or the union does not adequately advocate on the complainant’s behalf based on a characteristic protected under the Code: Ferris v Office and Technical Employees Union, Local 15, 1999 BCHRT 55 at para. 88; Graham v. Richmond School District No. 38, 2005 BCHRT 20 at para. 58; Waters v. Coca-Cola Bottling Co., 2005 BCHRT 557 at para. 18.
[14] When assessing the allegations, I take into consideration that ss. 13 and 14 of the Code “are not mutually exclusive” and “where a union discriminates in its representation of a member in respect of an issue arising from the member’s employment, both ss. 13 and 14 may be contravened”: Ferris at para. 80.
[15] In her complaint filed in September 2021, Ms. Day named BCGEU as a respondent but did not make any allegations against it. Ms. Day indicated that she named BCGEU only to “reserve her right” to include it depending on how BCGEU treated and supported her during the grievance process. In its screening letter, the Tribunal did not accept the complaint against BCGEU because it does not accept complaints for something a party might conceivably do in the future.
[16] In an amendment filed in March 2023 that was accepted by the Tribunal, Ms. Day mentions BCGEU in her allegations. For example, Ms. Day says BCGEU communicated with her employer and tried to settle the matter so she could return to work. Ms. Day does not, however, allege in any way that BCGEU discriminated against her in its communications with her employer or its conduct during the grievance process.
[17] In her application, Ms. Day alleges that BCGEU discriminated against her when it:
a. accepted that her employer did not accommodate her because her employer did not want to set a precedent;
b. failed to make her whole with respect to recovering her lost wages;
c. assigned different representatives and failed to accurately maintain her file;
d. asked her to provide information she already provided and to sign a consent form so it could obtain her medical records;
e. forced her to attend a meeting so she could prove she was cooperating so her grievance would not be abandoned;
f. did not immediately act on new information;
g. filed a second grievance rather than pursuing a claim for constructive dismissal; and
h. cancelled the grievance hearing.
[18] In her submission, Ms. Day says her physical disabilities are connected to the adverse impacts she experienced as a result of BCGEU’s conduct. Specifically, Ms. Day says BCGEU discriminated against her when it failed to accommodate her disability needs, and did not adequately protect her rights to have her job or allow due process to take place.
[19] I accept for the purposes of this application that Ms. Day has disabilities protected by the Code. However, even if the alleged acts or omissions by BCGEU were proven at a hearing, in my view they could not constitute a breach of the Code. The allegations against BCGEU do not fall into any of the categories in which a union may be found to have discriminated against one of its members. Ms. Day does not allege that BCGEU was involved in formulating any work rule that had a discriminatory effect on her or impeded her employer’s reasonable efforts to accommodate her. Nor does Ms. Day allege facts from which a conclusion could be drawn that BCGEU treated her worse than another member in similar circumstances or did not adequately advocate on her behalf based on her disabilities. Rather, the allegations stem from Ms. Day’s belief that BCGEU did not do a good enough job representing her interests during its communications with her employer, and her dissatisfaction with how BCGEU has handled her grievances.
[20] I agree with BCGEU that this case is similar to those cited in its submission where the Tribunal dismissed complaints against a union either because they did not allege facts that, if proven, could constitute a violation of the Codeor had no reasonable prospect of success: Graham v. School District No. 38 (Richmond) and CUPE Local 716, 2005 BCHRT 520; O’Flaherty v. VCC and others (No. 2), 2010 BCHRT 208; Waters v. Coca-Cola and Teamsters Local 213, 2005 BCHRT 557; Hemming v. BCGEU (No. 2), 2016 BCHRT 3; Chestacow v. Mount St. Mary Hospital of Marie Esther Society and another , 2018 BCHRT 44; Fraser v. Cummins Western Canada and another, 2015 BCHRT 174; Sheshka v. B.C. (Liquor Distribution Branch and P.S.A.) and others (No. 2) , 2011 BCHRT 69.
[21] Having found that the alleged facts against BCGEU, if proven, could not constitute a violation of the Code, it is not necessary for me to consider whether the allegations are timely, or it would further the just and timely resolution of the complaint if BCGEU were added as a respondent.
III CONCLUSION
[22] For the reasons set out above, Ms. Day’s application to add BCGEU as a respondent is denied.
Beverly Froese
Tribunal Member