Patterson v. Environmental 360 Solutions Ltd., 2024 BCHRT 324
Date Issued: November 19, 2024
File: CS-004691
Indexed as: Patterson v. Environmental 360 Solutions Ltd., 2024 BCHRT 324
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:
James Patterson
COMPLAINANT
AND:
Environmental 360 Solutions Ltd.
RESPONDENT
REASONS FOR DECISION
APPLICATION TO AMEND A COMPLAINT
Rule 24(4)
Tribunal Member: Jessica Derynck
Counsel for the Complainant: Meredith Shaw and Alison Moore
Counsel for the Respondent: Colin Edstrom
I INTRODUCTION
[1] James Patterson filed a human rights complaint against his former employer Environmental 360 Solutions Ltd. [Respondent]on August 16, 2021. In his complaint he alleges that the Respondent discriminated against him in employment based on a physical disability.
[2] Mr. Patterson applies to amend his complaint to add an allegation that the Respondent also discriminated against him based on a mental disability, and to add details to his allegation of discrimination based on physical disability.
[3] For the following reasons I deny Mr. Patterson’s application to add the ground of mental disability to the complaint. I allow his application to add details about his alleged physical disabilities to his complaint because I find that those details do not amount to a new allegation.
II Issues
[4] A complainant must apply to amend a complaint if there is an outstanding application to dismiss the complaint: Rules of Practice and Procedure , Rule 24(4)(b).
[5] On May 9, 2024, the Tribunal issued a letter decision allowing the Respondent to file an application to dismiss the complaint. The Respondent filed an application to dismiss the complaint under s. 27(1)(c) and (f) of the Codeon June 13, 2024. Mr. Patterson filed this application with his response to the application to dismiss on August 29, 2024.
[6] To decide this application, I must determine:
a. Whether it is fair to permit Mr. Patterson to add the new ground of mental disability to his complaint while there is an outstanding application to dismiss; and
b. Whether it is fair to permit Mr. Patterson to add details to his complaint about his allegation of discrimination based on physical disability at this stage, including about injuries related to an accident that he did not identify in his complaint form.
[7] I find that it would not be fair to the Respondent to allow the Complainant to add a new allegation of discrimination based on mental disability at this stage in the process.
[8] I find there is no unfairness in allowing Mr. Patterson to add his proposed details related to his allegation of discrimination based on physical disability to his complaint.
III ANALYSIS AND DECISION
[9] The Tribunal’s complaint and response forms are not equivalent to pleadings in a civil litigation process: White v. Nanaimo Daily News Group Inc. , 2004 BCHRT 350 at para. 23. The allegations the Tribunal accepts to proceed through the complaint process, including any amendments that the Tribunal subsequently accepts, sets out the scope of the complaint, but the Tribunal distinguishes allegations from details or particulars: Kirchmeier v. University of British Columbia , 2021 BCHRT 149 at paras. 9 to 10.
[10] The purpose of the Rule requiring an application to amend a complaint after an application to dismiss has been filed 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.
[11] At the same time, it is common, and consistent with the Rules, for complainants to add new particulars about their complaints in response to an application to dismiss: Kirchmeier at para. 10. The Tribunal explained the distinction between particulars and new allegations in Powell v. Morton, 2005 BCHRT 282 at para. 20:
I must examine the complaint originally filed with the Tribunal, and the amendment which the complainant seeks to file, to determine whether, in substance, the amendment constitutes further and better particulars of the complaint. In making this determination, I must consider whether the amendment contains, on the one hand, further details of the facts on which the complainant intends to rely, or whether, on the other, it constitutes an expansion of the allegations made against the respondents. If the former, it will constitute particulars; if the latter, an amendment. This determination is not to be made in a narrow or technical way, but in a manner which will ensure that the parties are accorded procedural fairness, and that particulars are not used to expand a complaint beyond what can reasonably be said to have been alleged in it. Another way of looking at the questions is to ask whether the materials in issue come within the scope of the complaint filed with the Tribunal, or whether they seek to expand the scope of the complaint.
[12] The Tribunal may allow an amendment to a complaint after an application to dismiss has been filed if it would further the purposes of the Codeand the Rules, including that all parties are treated fairly: Pausch at paras. 28-29. In Patterson v. Panacea Outreach and Support Services and others , 2015 BCHRT 150, at paras. 47 and 49, the Tribunal explained that amendments to a complaint after an application to dismiss has been filed tend to be allowed when they are particulars of the initial allegations in the complaint:
As noted above [in Pausch]and repeated many times since, amendments may be allowed when an application to dismiss has been filed if the complainant satisfies the Tribunal that the amendment can be done in a manner that is procedurally fair and which does not create a moving target for the respondent by adding allegations that are not tied to the original complaint…
…the Tribunal tends to accept amendments which particularize or are otherwise part and parcel of the original complaint while tending to find new allegations not apparently connected to the original allegations to be less conducive to procedural fairness and more of a “moving target”.
[13] While it is ideal for a complainant to file any amendments to add details to their complaint before an application to dismiss is filed, this may not always be possible when a complainant is self-represented and may face barriers navigating the complaint process. In some cases where a complainant seeks to add more details about existing allegations to their complaint after an application to dismiss is filed, it may be efficient for the Tribunal to accept the additional details and provide the respondent with an opportunity to amend their response and application to dismiss. This may avoid the need for an expanded scope of reply in the submission process on the application to dismiss when a respondent was not previously aware of details about the complaint.
A. Mental disability
[14] In his complaint form Mr. Patterson did not allege that he had a mental disability or that he could not attend work for reasons related to a mental health issue. He only alleged discrimination in employment based on physical disability. His complaint form says he was unable to work while recovering from a hospital medical procedure and was fired while on medical leave. He says he was approved to be off work for a week for recovery from the medical procedure, and his doctor issued a letter to the Respondent confirming the dates. He says the Respondent fired him stating that the letter was not sufficient. He says he only needed the accommodation of being off work for one week because he was not able to work driving an industrial garbage truck in his “physical condition”. He says it would be unsafe for him and for others on the road. He says the Respondent demanded more information about his medical procedures, and the information he disclosed proved that he attended the hospital for procedures, but this was personal information that the Respondent did not have a right to obtain.
[15] In his application and proposed amendment Mr. Patterson says that in addition to his physical conditions he was experiencing mental health conditions around the time of the termination of his employment, which were an additional factor in his need for time away from work. He submits that his amendments should be accepted as they are simply a particularization of an allegation already included in the complaint.
[16] I deny the application to add this amendment. I do not agree that it is merely particulars of an existing allegation. I find that adding mental disability would be adding a new allegation, not particularizing an existing one. Mr. Patterson does not allege any facts in his complaint form suggesting that any mental disability was a factor in the termination of his employment.
[17] Alternatively, Mr. Patterson submits that it would be procedurally fair to allow this amendment because it was clear from his complaint form that his employment was terminated because he needed time away from work because of his health. He says the amendment would simply allow him to explain that he was also suffering from mental health conditions that affected his ability to work at the time. He submits that adding the ground of mental disability would expand the scope of the response required very little, if at all, and would not require disclosure of new evidence.
[18] I disagree. Allowing an amendment to add the ground of mental disability would expand the scope of the complaint, creating a “moving target” after the filing of an application to dismiss that would be unfair to the Respondent. Mr. Patterson says this amendment would just be fleshing out his allegation that he was fired because he was off work for medical reasons, and that nothing in the complaint depends on whether his disability was a physical disability or mental disability. However, he repeatedly refers to his physical condition in the complaint form and does not allude to any mental disability. The Respondent has already filed an application to dismiss the complaint, but did not have an opportunity to file an application to dismiss a complaint of discrimination based on mental disability. Requiring the Respondent to do so now would create a moving target that Rule 24(4)(b) is meant to avoid.
[19] Mr. Patterson cites several cases in support of his position. None of them are decisions allowing an amendment to add a ground of physical disability or mental disability to a complaint after an application to dismiss was filed, and I find they do not support his position.
[20] Mr. Patterson submits that it would promote a just and timely resolution of the complaint to allow the amendment. He says allowing the amendment would avoid an unduly technical and legalistic approach. He says the proposed amendment relates to the same time frame that is already outlined in the complaint form, so there is no prejudice to the Respondent: Kruger v. Xerox Canada (No. 3), 2005 BCHRT 284 at paras. 34 to 38.
[21] I find that this application is not about a technicality, but that Mr. Patterson is asking to substantively amend his complaint. The issue with Mr. Patterson’s proposed amendment is that the Respondent has already filed an application to dismiss a complaint of discrimination based on physical disability. The Respondent has not had an opportunity to respond to or apply to dismiss a complaint of discrimination based on mental disability. It would not promote the just and timely resolution of the complaint to require the Respondent to amend its response and application to dismiss at this stage to address a new ground of discrimination.
[22] Mr. Patterson submits that an amendment adding the ground of mental disability would not necessitate the disclosure of new evidence. He says the Respondent already has, and disclosed, medical records of his that refer to an antidepressant medication and stress. The difficulty with his submission is that nothing in his complaint suggests that any mental disability was a factor in his absence from work or the termination of his employment. Without the benefit of knowing about this allegation before filing an application to dismiss, the Respondent did not have an opportunity to consider that he might allege that a mental disability was also a factor and request further particulars or disclosure before filing its application to dismiss.
[23] Finally, Mr. Patterson asks me to consider that he was self-represented when he filed the complaint. He says his brother filed the complaint for him, and his brother did not know the extent of his mental health symptoms.
[24] I considered that Mr. Patterson was self-represented when he filed his complaint and that he had help from a family member rather than a lawyer or advocate. This may be a relevant consideration if the issue was more of a technicality, but that is not the case here. Even if he had help filing his complaint, he is ultimately responsible for the information in the complaint form. In his complaint he says he tried to resolve his matter through a union grievance and arbitration for almost a year before filing his complaint. In his amendment application he does not explain why he could not have amended his complaint during that time period to add the ground of mental disability, why he did not give his brother information about a mental disability along with information about his physical disability to include in the complaint form, or why he did not amend his complaint to add mental disability any time before the Respondent filed its application to dismiss in June 2024. Mr. Patterson being self-represented is not a basis for allowing him to add a new ground of discrimination to his complaint, which would create a moving target, at this stage in the process.
[25] I deny Mr. Patterson’s application to add the ground of mental disability to his complaint.
B. Details of physical disabilities
[26] Mr. Patterson seeks to add details about physical disabilities to his complaint. Paragraphs five to eleven of his amendment contain details related to the medical procedure he references in his complaint form. The Respondent does not object to these amendments.
[27] The Respondent objects to the following proposed details in paragraph 12:
The Complaint [sic] was also continuing to suffer from back and neck injuries that he had sustained in a motor vehicle accident in January 2019, and which was exacerbated by driving trucks at work and the long hours that the Complainant worked. This pain was part of the reason for the Complainant’s absence from September 1, 2020 – September 7, 2020.
[28] The Respondent submits that it would be unfair to allow an amendment to add these details at this stage of the proceedings because the complaint form does not contain any facts indicating that injuries arising from a motor vehicle accident were factors in the decision to terminate Mr. Patterson’s employment. The Respondent says it is clear in the complaint that Mr. Patterson alleges that the Respondent terminated his employment on the basis of a physical disability specifically related to his attending the hospital for his medical procedure.
[29] The Respondent submits that the details in paragraph 12 amount to a new allegation it did not have an opportunity to address in its application to dismiss, and in any case, they do not allege a breach of the Code because Mr. Patterson alleges that his employment was terminated while he was recovering from a medical procedure, and the details about his injuries from an accident are unrelated to the medical procedure. The Respondent also says Mr. Patterson filed the new allegation outside of the time limit.
[30] I do not agree with the Respondent’s narrow view of the scope of the complaint as set out in the complaint form. Mr. Patterson says in his complaint form that he was unable to work while recovering from a medical procedure and was approved to be off work for a week for recovery, but he does not specify one physical disability that was a factor in his absence from work. He says he was not able to drive a truck in his physical condition and he does not limit this to his physical condition because of the medical procedure as the only factor. Paragraph 12 consists of details about Mr. Patterson’s allegation that his employment was terminated when he was away from work because he was not physically able to do his job. To limit Mr. Patterson to entering evidence about his physical condition only as it relates to the medical procedure would unfairly narrow the scope of his complaint.
[31] I find that paragraph 12 of Mr. Patterson’s amendment is not a new allegation but is particularization of his allegation that he physically was not able to work. This means I do not need to consider the time limit issue.
[32] I find that allowing Mr. Patterson to add these details to his complaint at this stage is not unfair to the Respondent, and that any potential unfairness is avoided by allowing for a brief submission from the Respondent at this stage.
[33] Mr. Patterson has already submitted a response to the application to dismiss, and the Respondent has already submitted a reply. The Respondent submits that allowing the amendment to add these details to the complaint may require an amendment to its complaint response and application to dismiss, and potentially make or request further document disclosure related to Mr. Patterson’s motor vehicle accident, but it was Mr. Patterson’s obligation to disclose any documents he intends to rely on or are otherwise potentially relevant before the application to dismiss was filed.
[34] This application was decided after the Respondent filed its reply submission, so I will allow the Respondent to take the following steps, if it chooses to do so:
a. Request disclosure of documents that may be relevant to paragraph 12 of the amendment and its response to those details;
b. File an amended reply submission on the application to dismiss.
[35] The case manager will contact the parties with the Respondent’s deadlines to take these steps or to advise Mr. Patterson and the Tribunal that it will not take these steps.
IV CONCLUSION
[36] I allow Mr. Patterson’s application to amend his complaint to add paragraph 12 of his amendment, which consists of details about his allegation of discrimination based on physical disability.
[37] I deny his application to amend his complaint to add an allegation of discrimination based on mental disability. Paragraphs 1 and 13 of the amendment are not added to the complaint. The reference to psychological symptoms in paragraph 14 does not form part of the complaint. Paragraph 14 is added to the complaint to read:
14. It was, thus, as a result of the Complainant’s colonoscopy and polypectomy, their associated recovery time, and the physical symptoms that the Complainant was experiencing during this period, that he was away from work on August 17, 25 – 26, 31 and September 1 – 7, 2020.
[38] The case manager will communicate deadlines to the parties for the Respondent to take the steps set out above.
Jessica Derynck
Tribunal Member