Jickling v. Sweet Meadows Market (No. 2), 2024 BCHRT 325
Date Issued: November 19, 2024
File: CS-001890
Indexed as: Jickling v. Sweet Meadows Market (No. 2), 2024 BCHRT 325
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:
Belinda Jickling
COMPLAINANT
AND:
Sweet Meadows Market
RESPONDENT
REASONS FOR DECISION
Tribunal Member: Edward Takayanagi
Counsel for the Complainant: Menachem Freedman
Counsel for the Respondent: Andrew LaCroix
Date of Hearing: July 18 – 21, 2023
Location of Hearing: By videoconference
I INTRODUCTION
[1] This is a complaint arising from the breakdown of an employment relationship during the initial months of the COVID-19 pandemic. Belinda Jickling alleges her former employer, Sweet Meadows Market discriminated against her based on mental and physical disability when it fired her after she took two leaves from work. She says the leaves were in accordance with public health guidelines to self-isolate because she exhibited symptoms associated with COVID-19. She says Sweet Meadows’ conduct violates s. 13 of the Human Rights Code .
[2] Sweet Meadows denies discriminating. It says the termination was for entirely non-discriminatory reasons: Ms. Jickling’s availability and performance issues. Further, it says that a temporary exhibition of symptoms associated with COVID-19 is not a disability protected by the Code. It says, in any event, the leaves were not a factor in its decision to terminate the employment.
[3] The parties called witnesses and introduced documentary evidence over the course of the four-day hearing. While I do not refer to all of it in my decision, I have considered all the evidence admitted at the hearing, and the submissions of the parties. This is not a complete recitation of that information, but only the information necessary to come to my decision.
[4] For the reasons that follow, I find, on the specific facts in this case, exhibiting symptoms associated with COVID-19 is a disability protected by the Code . In the context of the public health guidelines at the time, Ms. Jickling could not participate in the work force and was required to take two leaves and self-isolate. In this specific context, Ms. Jickling experienced a barrier to employment as a result of the disability. Specifically, I find that the leaves were a factor in Sweet Meadows’ decision to terminate Ms. Jickling’s employment. Sweet Meadows did not advance a justification defence. Therefore, Sweet Meadows discriminated against Ms. Jickling based on physical disability contrary to s. 13 of the Code . As a result of that discrimination, Ms. Jickling is entitled to compensation for injury to her dignity, feelings, and self-respect.
II BACKGROUND
[5] The background facts are largely undisputed.
[6] Sweet Meadows is a family-owned and operated market that sells produce, groceries, and other items. It has a small café which serves coffee and ice cream. It operates year-round but increases its operating hours during the busier summer months.
[7] Ms. Jickling started working for Sweet Meadows as a cashier and café worker on May 19, 2020. Before her employment, in 2019, Ms. Jickling was involved in a motor vehicle accident and was on long-term disability leave from her previous job due to physical and mental injuries. Ms. Jickling was interested in a gradual re-entry into the workforce and informed Sweet Meadows’ Manager that she would like to start with two to three shifts a week. The parties agreed that Ms. Jickling would work two, four-hour shifts a week to start.
[8] Ms. Jickling worked shifts on May 19, 20, 26, and 28. Her primary duty was serving as a cashier, processing sales for customers by inputting product codes at the checkout. Ms. Jickling was on a three-month probationary period to determine if the position was a good fit.
[9] On May 31, 2020, Ms. Jickling had a sore throat and cough. She understood that the British Columbia Centre for Disease Control [ BCCDC ] guidelines required her to stay home and self-isolate due to possible infection with the COVID-19 virus. Sweet Meadows had a similar policy which stated, “Anyone with cold, influenza, or COVID-19 like symptoms such as sore throat, fever, sneezing, and coughing remain at home.”: Exhibit 17, p. 3. Ms. Jickling was unable to get tested to confirm the cause of her symptoms. Ms. Jickling emailed the Manager and informed her that she would “follow the rules and stay home this week.”: Exhibit 5, p.1.
[10] Ms. Jickling returned to work on June 10 and worked shifts on June 11, 17, and 18.
[11] On June 19, 2020, Ms. Jickling experienced severe abdominal pains and went to the emergency room at her local hospital. Ms. Jickling took a COVID-19 test, and the results were inconclusive. The doctor was unable to determine the cause of her symptoms and said she would need to self-isolate for ten days. Ms. Jickling emailed Sweet Meadows on June 22, 2020, saying she would be unable to come to work. She said, “The ER doctor told me that I absolutely must not go to work this week as this could be a bug or virus and she wrote a note (attached) for me to isolate for 10 days.”: Exhibit 9.
[12] On June 23, 2020, the Manager responded to Ms. Jickling’s email terminating her employment. The Manager wrote, “we do not feel that this is a good match and at this point it is best to part ways.”: Exhibit 10.
III ANALYSIS AND DECISION
[13] To prove discrimination, Ms. Jickling must establish that: (1) she had a disability; (2) she experienced an adverse impact in her employment with Sweet Meadows; and (3) her disability was a factor in the adverse impact: Moore v. BC(Education) , 2012 SCC 61 at para. 33.
[14] It is not disputed that Ms. Jickling was fired. Termination of employment is an adverse impact under the Code : s.13(1)(a) and De Medeiros v. Rovalution Automotive Ltd. and another, 2023 BCHRT 182 at para. 22.
[15] On the issue of whether Ms. Jickling had a disability, she asserts that during her employment she took two medical leaves related to COVID-19 which is the reason she was fired. She argues that exhibiting symptoms of COVID-19 is a disability protected under the Code . Specifically, she argues that, at this point in the pandemic, a person who exhibited symptoms of COVID-19 had involuntary limitations placed on their participation in the workforce by being required to self-isolate and quarantine.
[16] Sweet Meadows disputes that Ms. Jickling’s leaves are related to a disability within the meaning of the Code . It concedes that Ms. Jickling informed them that her first leave was due to suspected COVID-19 but say it was not informed that her second absence was related to COVID-19. It also disputes that either leave was a factor in their decision to terminate the employment.
[17] Therefore, I first need to determine whether the circumstances of Ms. Jickling’s leaves amount to a disability protected by the Code . If so, I must determine if it was a factor in Sweet Meadows’ termination of Ms. Jickling’s employment.
1. Has Ms. Jickling established that she had a physical disability within the meaning of the Code?
[18] In considering the specific circumstances of this case, I find that Ms. Jickling exhibiting symptoms associated with COVID-19 was a physical disability protected by the Code .
[19] Disability is not defined in the Code . The Tribunal interprets the term broadly so as to better achieve the purposes of the Code : British Columbia Human Rights Tribunal v. Schrenk, 2017 SCC 62 at para. 31. One of the purposes of the Code is to remove barriers that people face in certain areas of life because of their disabilities: Code , s. 3. Those barriers may arise from actual functional limitations associated with a disability, or society’s response to the disability: Stevenson v. Marcon Construction , 2020 BCHRT 80 at para. 7.
[20] The concept of physical disability generally indicates a physiological state that is involuntary, has some degree of permanence, and impairs the person’s ability, in some measure, to carry out the normal functions of life: De Medeiros at para. 23. The Tribunal may also consider the severity, or persistence of a condition, as well as any social stigma that may attach to that condition: Morris v. BC Rail , 2003 BCHRT 14 at paras. 211 and 214.
[21] Ailments such as the common cold which do not constitute an obstacle to full participation in society are not considered disabilities. However, whether a temporary or treatable condition constitutes a disability is a question of fact in each case: Wali v. Jace Holdings , 2012 BCHRT 389 at para. 82. A disability is not limited to ongoing or chronic conditions and may include conditions that have resolved or require a temporary leave from work: Derek v. Aspen Planers , 2018 BCHRT 266 at para. 44.
[22] Disability includes conditions which do not give rise to any limitations or functional disability and may exist without proof of physical limitations or the presence of an ailment: Québec (Commission des droits de la personne et des droits de la jeunesse) v. Boisbriand (City), 2000 SCC 27 at paras. 79-81. This is because the emphasis is on the effects of the distinction, rather than the precise nature or origin of the distinction arising from a person’s condition.
[23] The Supreme Court of Canada has rejected a notion of disability which focuses on impairment or functional limitation and said in Granovsky v. Canada (Minister of Employment and Immigration), 2000 SCC 28:
The concept of disability must therefore accommodate a multiplicity of impairments, both physical and mental, overlaid on a range of functional limitations, real or perceived, interwoven with recognition that in many important aspects of life the so-called ‘disabled’ individual may not be impaired or limited in any way at all. (at para. 29)
[24] Because the assessment of whether a condition constitutes a physical disability is a fact specific inquiry, it is important to situate Ms. Jickling’s circumstance in the specific context of the legislative response to the COVID-19 pandemic at the time she took her leaves.
[25] First, on March 18, 2020, the BC government declared a state of emergency pursuant to the Emergency Program Act s. 9(1), in response to the COVID-19 pandemic.
[26] Second, the Legislature recognized that employees may self-isolate in accordance with guidelines of the BCCDC. On March 23, 2020, the BC government amended the Employment Standards Act to specifically address employees required to take leaves due to COVID-19. Section 52.12 provides, in part:
(2) An employee who requests leave under this section is entitled to unpaid leave for the period described in subsection (3) if, in relation to COVID-19, any of the following applies:
(a) the employee has been diagnosed with COVID-19 and is acting in accordance with
(i) instructions or an order of a medical health officer, or
(ii) advice of a medical practitioner, nurse practitioner or registered nurse;
(b) the employee is in quarantine or self-isolation in accordance with
(i) an order of the provincial health officer,
(ii) an order made under the Quarantine Act (Canada),
(iii) guidelines of the British Columbia Centre for Disease Control, or
(iv) guidelines of the Public Health Agency of Canada;
(c) the employer, due to the employer’s concern about the employee’s exposure to others, has directed the employee not to work;
(d) the employee is providing care to an eligible person, including because of the closure of a school or daycare or similar facility;
(e) the employee is outside the province and cannot return to British Columbia because of travel or border restrictions;
(f) a prescribed situation exists relating to the employee.
(3) An employee is entitled to leave under this section for as long as a circumstance described in subsection (2) applies to the employee.
[27] The BCCDC guideline on its website, as of June 2020, stated:
If you develop symptoms, you will need to self-isolate while you wait for your test results so you do not potentially spread illness to others. Those who get diagnosed with COVID-19 will need to self isolate for at least 10 days from when their symptoms started.
[28] At this time, Ms. Jickling twice self-isolated and therefore took two leaves from work, due to symptoms which she suspected may be related to COVID-19. In the first instance, Ms. Jickling exhibited symptoms, identified by the BCCDC as common symptoms for COVID-19. On May 31, 2020, Ms. Jickling informed Sweet Meadows she developed a cough and sore throat. She sought to get tested for COVID-19 but was unable to do so, and she stayed home for ten days beginning May 31, 2020.
[29] On June 19, 2020, Ms. Jickling experienced abdominal pains and went to an emergency room. While Sweet Meadows says abdominal pain is not a symptom commonly associated with COVID-19, it is listed as a less common but possible symptom by the BCCDC: Exhibit 8. Ms. Jickling was examined by a doctor who was unable to determine the cause of her symptoms. She had a COVID-19 test which was inconclusive. Ms. Jickling was told that her symptoms may be caused by vasculitis related to COVID. She was given a note certifying that she was unable to attend work due to illness and was to isolate for ten days: Exhibit 9, p. 2.
[30] In each instance Ms. Jickling’s self-isolation was triggered, not by confirming if Ms. Jickling was infected with COVID-19, but by symptoms (cough, sore throat, abdominal pain) which could be caused by other conditions but were listed by the BCCDC as possible symptoms of COVID-19 requiring quarantine. In the first instance, she reasonably relied on the BCCDC guidelines to self-isolate and, in the second instance, a doctor certified that she was to isolate.
[31] Little evidence was given about Ms. Jickling’s functional limitations during her two leaves, and I find that evidence of her functional limitations would not be determinative. This is because a person may have no functional limitations due to COVID-19, but they would still be unable to fully participate in the workforce because they were required to remain at home.
[32] Here, Ms. Jickling’s limitation from participating fully in the workforce was a result, not of any physical limitations or the confirmed presence of COVID-19, but because at this point in history, the BCCDC guideline and Sweet Meadows’ own workplace policy, required her to self-isolate when she exhibited symptoms associated with COVID-19.
[33] Sweet Meadows argues that leaves due to suspected COVID-19 are not a disability protected by the Code because they do not have an element of permanence. It argues that, if leaves due to symptoms of COVID-19 are a disability protected by the Code , other transient illnesses such as a cold, influenza, or gastroenteritis must similarly be protected. It also suggests that travel quarantines, which were in effect at the time, would also be protected because they are also involuntary limits placed on people preventing them from participating in the workforce. Sweet Meadows argues that these consequences illustrate that Ms. Jickling’s position on the meaning of “physical disability” under the Code cannot be sustained.
[34] Sweet Meadows also argues that leaves due to suspected COVID-19 does not attract social stigma as it is not predicated on confirming the presence of an illness.
[35] I am not persuaded by Sweet Meadows’ arguments for the following reasons.
[36] First, a condition does not need to be permanent to constitute a disability under the Code : DeMedeiros at para. 32. The Code ’s protection is not limited to those conditions that are ongoing and chronic and may include conditions that have resolved after several weeks leave from work.
[37] Second, I find that, in the specific circumstances of this case, Ms. Jickling’s situation is distinguishable from conditions such as a common cold or influenza. First, the COVID-19 pandemic resulted in a state of emergency. This was during the early onset of the COVID-19 pandemic where the legislative response to the pandemic was intended to prevent the spread of COVID-19 and limit cases, hospitalisations, and deaths. I appreciate that, at the time Ms. Jickling was exhibiting symptoms consistent with COVID-19, little was known about the disease, its transmission, and recovery rates. Ms. Jickling was not treated for her symptoms but was told she should self-isolate and see if symptoms would subside.
[38] Second, while Ms. Jickling’s leaves were shorter than some other cases in which the Tribunal has found a disability, the two leaves would have totalled close to three weeks in a one-month period. On two occasions, Ms. Jickling exhibited symptoms consistent with COVID-19 and she self-isolated on both occasions to comply with the guidelines of the BCCDC and to follow a doctor’s recommendation. In each instance, she suffered from involuntary physiological symptoms (cough, sore throat, abdominal pain). Due to self-isolation she could not participate in the normal functions of life by leaving her home, associating with other people, or going to work.
[39] Third, I am able to distinguish Ms. Jickling’s leaves from a person taking time off of work for a cold, influenza, or gastroenteritis because Ms. Jickling’s leaves arose from the guidelines of the BCCDC and Sweet Meadows’ workplace policy. Ms. Jickling’s evidence is that she wanted to go to work as she did not want to take time off during her initial period of employment. Ms. Jickling testified that she understood BC’s Provincial Health Officer was mandating anyone with COVID-19 symptoms stay at home. I find this was a reasonable response in the circumstances. This situation is distinguishable from an employee choosing to take a short time off work because they have a temporary illness, because Ms. Jickling understood she was required to take a leave from work and self-isolate for ten days in each instance, under the prevailing guidelines and workplace policy.
[40] I am also able to distinguish Ms. Jickling’s circumstances from people who are required by BCCDC guidelines to self-isolate because they recently travelled. The parties did not provide details of the restrictions placed on travellers, but I understand Sweet Meadows to be arguing that Ms. Jickling’s circumstances are analogous to a traveller being quarantined because their participation in the workforce is similarly restricted even if they have not been diagnosed with COVID-19. However, the circumstance of Ms. Jickling’s leaves was that she exhibited physical symptoms consistent with those listed by the BCCDC as symptoms of possible COVID-19 infection. I find the fact that Ms. Jickling exhibited physical symptoms distinguishes her circumstances from those of travellers who may have no physical symptoms.
[41] Regarding Sweet Meadows’ argument that COVID-19 and COVID-19 leaves do not have stigma, this is not supported with any evidence. Sweet Meadows’ argument on this point appears to be that because many Canadians have now had COVID-19 at some point, and because the guidelines for self-isolation have been eased or eliminated, people on COVID-19 leaves are not perceived as having limitations in the workplace. Because the issue before me is the circumstances of Ms. Jickling’s two leaves in 2020, I do not find arguments about later public attitudes about COVID-19 and COVID-19 leaves to be helpful to my analysis.
[42] I also note that the BCCDC guideline says a person who exhibits symptoms of COVID-19 will need to self-isolate while waiting for test results and if diagnosed with COVID-19 must self-isolate for at least ten days from when their symptoms started. Sweet Meadows’ workplace policy says that anyone exhibiting symptoms must stay at home. From this I understand that Ms. Jickling was required to continue self-isolating until she no longer exhibited symptoms associated with COVID-19. While Ms. Jickling was able to return to work when she no longer exhibited symptoms of COVID-19, I find the fact that she recovered does not negate that, at the time she was self-isolating, her physical symptoms was a disability protected by the Code .
[43] Finally, I note that my conclusion, that, in the circumstances of this case, Ms. Jickling’s COVID-19 leaves are protected on the ground of disability under the Code is consistent with the statements of the BC Human Rights Commissioner. She says, “An employer may not discipline or terminate an employee who is unable to come to work because medical or public health officials have quarantined them or have advised them to self-isolate and stay home in connection with COVID-19.” Policy Statement: COVID-19 pandemic, BC Office of the Human Rights Commissioner.
[44] She further says, “Under the Code, an employer may not discipline or terminate a worker who has been diagnosed with COVID-19 or is perceived to have COVID-19 (because, for example, they are exhibiting certain symptoms). Similarly, an employer may not discipline or terminate a worker if they are unable to come to work because medical and health officials have quarantined them or have advised them to self-isolate and stay home in connection with COVID-19.” COVID-19 Frequently Asked Questions from BC’s Office of the Human Rights Commissioner.
[45] While the Tribunal is not bound by the Commissioner’s statements, I find them helpful in assessing the circumstances of this case, particularly near the start of the pandemic and public health emergency.
2. Was disability a factor in Sweet Meadows’ decision to terminate Ms. Jickling’s employment?
[46] For the following reasons, I am satisfied that disability was a factor in Ms. Jickling’s termination.
[47] The onus is on Ms. Jickling to establish on a balance of probabilities that her physical disability was a factor in Sweet Meadows’ decision to terminate her employment. It need not be the sole or even primary factor in the adverse impact. Nor is it necessary for the protected characteristic to be a “significant” factor in the adverse treatment, so long as it is a factor.
[48] Employers rarely announce they are dismissing an employee for discriminatory reasons. Rather, a decision that the Code has been contravened may be based on circumstantial evidence, and in the inferences that are reasonable to draw from that evidence: Hill v. Best Western and another , 2016 BCHRT 92.
[49] Ms. Jickling says that the fact she was fired the day after she provided a medical note informing Sweet Meadows of her second COVID-19 leave supports an inference that her leaves was a factor in her termination.
[50] Sweet Meadows says it was not aware that Ms. Jickling’s second leave was related to COVID-19. It says that the decision to terminate Ms. Jickling was made for wholly non-discriminatory reasons, namely her performance and availability. It also says the decision to terminate her employment was made before Ms. Jickling took her second leave.
[51] First, I find the timing of the termination supports an inference that Ms. Jickling going on her leaves was a factor in her termination. The termination occurred the day after Ms. Jickling informed her manager she needed to isolate for the second time in one month. I find this supports an inference that Ms. Jickling’s leaves were a factor in her termination, whether or not Sweet Meadows knew the second leave was COVID-related.
[52] In the termination letter sent by Sweet Meadows, the Manager writes that the reason for the termination is Ms. Jickling’s “availability.” The evidence before me is that Sweet Meadows was entering their busy summer season, and they wanted Ms. Jickling to increase the number of hours she worked.
[53] I have no difficulty in concluding that Ms. Jickling informing Sweet Meadows she would miss shifts because she needed to self-isolate when it wanted Ms. Jickling to be available and increase her hours of work was a factor in Sweet Meadows’ decision to terminate the employment. It is the effect of the decision to terminate that matters for the purpose of the discrimination analysis, rather than Sweet Meadows’ intention or knowledge of the specific disability requiring a second ten-day leave.
[54] In any event, I find there was sufficient evidence and information before Sweet Meadows so that it knew or ought to have known that Ms. Jickling’s second leave was related to COVID-19.
[55] Sweet Meadows concedes that it was informed Ms. Jickling’s May31, 2020, leave was related to suspected COVID-19. In her June 22, 2020, email about her second leave, Ms. Jickling said that she was suffering from “violent stomach pains.” Had it made a difference what the specific cause of the leave was, Sweet Meadows could have determined from the BCCDC website that abdominal pain was a known symptom of COVID-19. Further, Ms. Jickling testified that the hospital was unable to determine the cause of her symptoms, and she informed Sweet Meadows they may be caused by “a bug or virus” and she was required to isolate. While I acknowledge that the requirement to isolate may be caused by many illnesses, at this point in history during the COVID-19 pandemic, I find that being required to isolate due to unknown causes implies a link to COVID-19. Additionally, in her email Ms. Jickling asked about Sweet Meadows erecting plexiglass barriers which was a measure commonly understood at the time as a way to reduce the transmission of COVID-19.
[56] I find that Sweet Meadows knew, or ought reasonably to have known, based on the information available to them, that Ms. Jickling’s leave of June 22, 2020, was related to COVID-19.
[57] Finally, while Sweet Meadows offers a non-discriminatory explanation for the termination – Ms. Jickling’s performance and availability – I find the explanation does not rebut the available inference that disability was a factor.
[58] Sweet Meadows says Ms. Jickling was not proficient enough in her knowledge of product codes. However, Ms. Jickling’s performance is not mentioned in the Manager’s termination email of June 23, 2020. The only reason given for the termination in the email is concerns about Ms. Jickling’s availability matching Sweet Meadows’ needs. This is inconsistent with Sweet Meadows’ assertion that the reason for termination was performance based.
[59] Even if I were to accept that Sweet Meadows had legitimate concerns about Ms. Jickling’s performance, I find Ms. Jickling’s performance is inexorably linked to her leaves which are protected under the Code . The evidence of the Manager was that she had concerns about Ms. Jickling’s availability and believed Ms. Jickling working only two, four-hour shifts a week was insufficient. However, the evidence is that Sweet Meadows knew Ms. Jickling had limited availability from the initial job interview. The only thing that changed with regard to Ms. Jickling’s availability during her employment was two instances when she exhibited COVID-19 related symptoms and self-isolated.
[60] I find that Ms. Jickling’s ability to learn and memorize product codes was being compared to a hypothetical employee who took no time off, while she was required to quarantine for a period of ten days within her first three weeks of employment. I find that Ms. Jickling was being held to a standard that she did not meet due, at least in part, to the fact that she was required to quarantine and her first month of employment was interrupted by a break of ten days. Therefore, Ms. Jickling’s disability was a factor in her inability to meet the performance standards set by Sweet Meadows.
[61] Sweet Meadows also argues that Ms. Jickling’s refusal to increase the number or length of her shifts resulted in her poor performance and was the reason they terminated her. I understand Sweet Meadows is saying they needed an employee who could work more. I find Ms. Jickling’s availability was inexorably linked to her two COVID-19 leaves and therefore supports an inference that Ms. Jickling’s termination was related to her COVID-19 leaves. The undisputed evidence is that Ms. Jickling was clear from the outset that she was looking for part-time work. While the Manager testified that she believes an employee needs to work a minimum of 16 hours per week to get a good grasp of the job and she had concerns about Ms. Jickling’s availability, the email correspondence between Ms. Jickling and the Manger does not contain an expectation of the minimum number of hours an employee is required to work. On the contrary, the exchange shows the Manager asked Ms. Jickling what her “max or minimum amount of hours” was and stated that she is “a bit flexible with the length of shift and possibly the days.” The evidence supports that Ms. Jickling’s limited availability was not a concern for Sweet Meadows at the start of the employment.
[62] The evidence does not support Sweet Meadows’ assertion that it made its decision to terminate before Ms. Jickling’s second COVID-19 leave. Sweet Meadows’ Co-Owner testified that he understood from the Manager that Ms. Jickling was underperforming due to her limited hours. He said he intended to have a discussion with her about her performance and availability. The evidence is that the Co-Owner had not prepared any paperwork related to firing Ms. Jickling and if Ms. Jickling had agreed to work additional shifts, he would have continued her employment. In my view, this is inconsistent with a decision having been made to fire Ms. Jickling. Rather, it is evidence to me that the concerns crystallized on June 22, 2020, when Ms. Jickling notified Sweet Meadows of the second leave.
[63] I am not assisted by Sweet Meadows’ submissions that the Owners have family members with disabilities, it has employed other employees with disabilities, and rather than discipline other employees for taking medical leaves they have shown compassion and understanding. This evidence about Sweet Meadows’ treatment of other employees in other circumstances does not assist me in my analysis of the specific facts before me. Insofar as Sweet Meadows is arguing that an inference of discrimination is not believable because it has not discriminated in other circumstances in relation to other disabilities, I am not persuaded that its conduct in other situations with other employees to be a significant factor in my assessment. An inference of discrimination may be drawn on the particular facts and circumstances of each case.
[64] I recognize that Sweet Meadows did not believe it was terminating Ms. Jickling’s employment based on a disability, whereas I have determined on the facts before me that her leaves for symptoms consistent with COVID-19 at the early stage of the pandemic engage the protected ground of disability and was a factor in the termination. I accept that Sweet Meadows did not mean to discriminate. However, considering all the circumstances of the case, I am satisfied, on a balance of probabilities, that Ms. Jickling’s two COVID-19 related leaves was a factor in her termination and, as a result, Sweet Meadows contravened s. 13(1) of the Code .
IV REMEDIES
A. Section 37(2)(a) Cease the Contravention
[65] I have found that Sweet Meadows discriminated against Ms. Jickling in employment based on disability, contrary to s. 13 of the Code . When the Tribunal determines that discrimination occurred, it must order the party that violated the Code to cease and refrain from committing the same or a similar violation. Therefore, I order Sweet Meadows to cease and refrain from committing the same or similar discrimination, pursuant to s. 37(2)(a).
B. Section 37(2)(b) Declaratory Order
[66] The Tribunal may make a declaratory order that the conduct complained of, or similar conduct, is discrimination contrary to the Code .
[67] I declare that the conduct of Sweet Meadows in terminating Ms. Jickling’s employment was discriminatory contrary to the Code pursuant to s. 37(2)(b).
C. Section 37(2)(d)(ii) Compensation for out-of-pocket expenses
[68] Section 37(2)(d)(ii) of the Code gives the Tribunal discretion to compensate a person for all, or a part, of any wages or salary lost, or expenses incurred because of discrimination.
[69] Sweet Meadows denies any amount is recoverable because they deny they discriminated. However, I have found that Sweet Meadows discriminated in employment contrary to the Code .
[70] Ms. Jickling was initially seeking a wage loss award but she waived her interest in a wage loss award at the hearing. However, she seeks an award of $1,825.36 for legal fees incurred before the complaint was filed and her disbursements.
[71] The Tribunal has held that reasonable legal fees incurred before filing a complaint are compensable: McGowan v. Pretty Estates , 2013 BCHRT 40 at paras. 40-42. The Tribunal has also exercised its discretion to award compensation for hearing-related disbursements: Francis v. BC Ministry of Justice (No. 5) , 2021 BCHRT 16 at paras. 228-229
[72] Ms. Jickling provided invoices for legal services showing she paid legal fees of $1,780.47 prior to filing her complaint and disbursements of $44.89. Ms. Jickling explained that the legal fees were paid for legal advice in advance of filing her claim and that the disbursements are for preparing documents for the hearing of her complaint. I am satisfied that the legal fees and disbursements paid are reasonable and are a consequence of the discrimination.
[73] I award $1,825.36 in legal fees and disbursements under s. 37(2)(d)(ii) of the Code .
D. Section 37(2)(d)(iii) Injury to Dignity, Feelings and Self-Respect
[74] Under s. 37(2)(d)(iii) of the Code , the Tribunal has the discretion to award compensation for injury to dignity. The purpose of these awards is compensatory, not punitive. The amount of compensation depends on the specific facts and circumstances in a given case and relevant factors: Gichuru v. Law Society of British Columbia (No.2) , 2011 BCHRT 185, aff’d in 2014 BCCA 396, at para. 260. At the same time, for the purposes of consistency and fairness, it is often helpful to consider the range of awards made in similar cases:
[75] In making an injury to dignity award the Tribunal often considers several factors including the nature of the discrimination; the complainant’s social context or vulnerability; and the specific effect the discrimination had on the complainant: Oger v. Whatcott (No. 7) , 2019 BCHRT 58 at para. 225. I will consider each of these factors in turn.
[76] The discriminatory interaction was discrete, a single email, with serious consequences. Ms. Jickling’s employment was terminated because she was unable to come to work due to illness.
[77] As the Supreme Court of Canada has recognized, “work is one of the most fundamental aspects in a person’s life” and “a person’s employment is an essential component of his or her sense of identity, self-worth and emotional well-being”: Reference Re Public Service Employee Relations Act (Alta.), 1987 CanLII 88 (SCC), [1987] 1 SCR 313 at p. 368. Because of the significance of employment to a person’s dignity, cases which involve the termination of employment often attract the top end of this Tribunal’s awards: see e.g. Senyk v. WFG Agency Network (No. 2), 2008 BCHRT 376 at paras. 463-470.
[78] Next, I consider Ms. Jickling’s vulnerability or the social context of the discrimination. There is an inherent power imbalance between employers and employees that make employees vulnerable, especially at the time of termination: Senyk v. WFG Agency Network (No. 2) , 2008 BCHRT 376 at paras. 463-464.
[79] The evidence before me is that Ms. Jickling was particularly vulnerable because she had pre-existing mental health conditions, and she viewed her employment with Sweet Meadows as a crucial step towards re-entering the workforce.
[80] Finally, the most significant factor in my determination of an award is the effect that the discrimination had on Ms. Jickling. The evidence is that the contravention caused her a great deal of distress and despair.
[81] Ms. Jickling was hopeful that she could succeed in her job at Sweet Meadows and fully re-enter the world. Ms. Jickling testified to having a strong work ethic and belief that disabilities should not prevent a person from making positive contributions to society. Ms. Jickling’s husband testified that when she started working at Sweet Meadows there was a “spring in her step” and genuine excitement to be able to rejoin the workforce.
[82] The evidence before me is that the effects of the discrimination were devastating and long-lasting on her. Ms. Jickling testified that immediately following the firing, she felt she would never find a job where she could succeed. The symptoms of her mental illness worsened, and she experienced heightened agoraphobia where she would stay home in bed with the blinds closed all day. She says she experienced significant depression, suicidal ideation, and feeling she was “not being in this world.” Her doctor increased the dosage of her anti-anxiety medication. The evidence before me by way of Ms. Jickling’s medication receipts shows that she doubled the dosage of her anti-anxiety medication in August 2020, after being terminated. Despite the medication and treatment, Ms. Jickling felt isolated from friends and felt shame and embarrassment about being terminated.
[83] Ms. Jickling says she has been unable to work a regularly scheduled job since the termination. The evidence is the firing had a significant effect on Ms. Jickling’s sense of self-worth where she felt she could not contribute to society. She testified that she still feels anxious and has only begun feeling safer in the weeks prior to the hearing.
[84] Ms. Jickling’s husband testified that the termination caused a significant change in Ms. Jickling. He described her as being in “shutdown mode” where she would be unable to get out of bed, prone to crying spells, and fearful all the time. He said Ms. Jickling would often call him at work to say she was not doing well. He says he attempted to distract Ms. Jickling from her despair by arranging small getaways and trips but trying to support her placed a strain on their relationship.
[85] Ms. Jickling’s friend testified that she noticed Ms. Jickling was anxious and prone to panic after the termination. While she continued to meet Ms. Jickling for walks after the termination, she observed that Ms. Jickling seemed hypervigilant and fearful that she was being watched and judged. She testified that they would meet less frequently in busy places and Ms. Jickling would request that she pull her car over when she felt unsafe because other cars were on the road. She said Ms. Jickling appeared to continue struggling with her mental health for several years.
[86] Ms. Jickling testified that she felt she was unable to contribute to society. I accept Ms. Jickling’s evidence about the effect of the termination on her life. I find the effect was profound. While Sweet Meadows points to the evidence that Ms. Jickling was able to take some walks with her friend and go on trips with her husband, I am not persuaded that Ms. Jickling’s ability to find temporary respite from her depression with a few trusted individuals lessens the impact of the discrimination.
[87] Ms. Jickling seeks an award for injury to dignity of $40,000. She refers to the following cases she says are analogous to her circumstances: Kasagoni v. J Singh Enterprises dba Willingdon Husky and another (No. 3) , 2023 BCHRT 65 ($35,000); Cyncora v. Axton Inc. , 2022 BCHRT 36 ($20,000); Benton v. Richmond Plastics Ltd. , 2020 BCHRT 82 ($30,000). She also asks the Tribunal to recognize the “very significant increases in inflation that have occurred since 2015 and particularly in the wake of the COVID-19 pandemic.”
[88] Sweet Meadows says Ms. Jickling’s circumstances are distinguishable from the cases she cites because those cases deal with employers who engaged in multiple deliberate, discriminatory acts, during longer employment periods. Sweet Meadows refers me to two cases it says are more similar to the present circumstances: Pacheco v. Local Pest Control Ltd. , 2019 BCHRT 191 ($7,500); Singh v. Dodd’s Furniture (No. 2) , 2021 BCHRT 85 ($10,000).
[89] Sweet Meadows suggest that an award for injury to dignity should be on the lower end because of two factors. First, they argue that the Owners of Sweet Meadows did not intend to cause Ms. Jickling harm. They say that the termination was a singular event, there was no preceding harassment or negative treatment of Ms. Jickling, and the email terminating the employment contained no harsh words or criticism levelled at Ms. Jickling. Second, Sweet Meadows argues that a person’s COVID-19 status does not go to the core of their identity and therefore the injury to their dignity is less.
[90] Sweet Meadows further says it was unaware of Ms. Jickling’s pre-existing mental health conditions and the impact that termination would have on her mental illness. I understand Sweet Meadows to be arguing that they could not have reasonably foreseen the impact that termination would have on Ms. Jickling.
[91] I am not persuaded that Sweet Meadows’ arguments support an award at the lower end of the range for the following reasons.
[92] First, I have considered the nature of the discrimination, termination of employment, to be serious. That said, I agree that there was no preceding harassment or negative treatment of Ms. Jickling, and the email terminating the employment contained no harsh words or criticism levelled at Ms. Jickling. I agree that some awards arising from the termination of employment are lower. In this case, however, it is the impact on Ms. Jickling that supports a higher award. The purpose of an injury to dignity award is to compensate a person for the actual harm they have suffered as a result of the discrimination. Compensation is not limited only to those harms that are reasonably foreseen consequences of a contravention: Francis v. BC Ministry of Justice (No. 5) , 2021 BCHRT 16 at para. 157. I find the respondent must take their victim as they find them.
[93] Further, as I noted above, I accept that Sweet Meadows did not mean to discriminate. The Code does not require an intent to discriminate: Code , s. 2. Again, the purpose of an award for injury to dignity is compensatory, not punitive, and the main consideration in this case is the actual impact of the discrimination on Ms. Jickling.
[94] I next address Sweet Meadows’ argument that a lower award for injury to dignity is warranted because a person’s COVID-19 status does not go to the core of their identity. I have not found this argument helpful. It is possible to imagine circumstances where a termination based on a shorter-term disability might result in an injury to dignity, feelings, and self respect that would be appropriately compensated at the lower end of the range. That, however, is not Ms. Jickling’s situation. I accept the evidence that, in her case, the termination triggered a significant and long-term injury to her dignity and wellbeing. Ms. Jickling continues to experience the negative effects three years after her termination.
[95] I am not assisted by the two cases cited by Sweet Meadows, because in those the complainants each were awarded the full amount they were seeking for injury to dignity.
[96] While I acknowledge that the cases cited by Ms. Jickling deal with longer employment periods and employers who engaged in some discriminatory acts different from Sweet Meadows, I find the impact of the discrimination was similar. Like in Kasagoni , the impact of the discrimination was profound. Ms. Jickling was fearful of leaving her home and felt isolated and vulnerable. Like in Cyncora , Ms. Jickling suffered mental health issues including depression, suicidal ideation and anxiety requiring increased medication. Like in Benton , the effect of the discrimination was long lasting with Ms. Jickling testifying that she only began feeling safe three years after the termination.
[97] None of the cases mirror Ms. Jickling’s circumstances exactly. The evidence before me supports that Ms. Jickling was profoundly impacted by the discrimination at a time when she was hopeful about contributing to her community. The discrimination caused devastating impact on her mental health and self-worth. In my view, Ms. Jickling’s damages warrants an award on the higher end of the cases she has cited. While the nature of the discrimination by Sweet Meadows was not as egregious as in the cases cited, the effect on Ms. Jickling was severe and demoralizing. The evidence before me is that the termination significantly exacerbated her mental health symptoms, disrupted her life, and negatively impacted her relationship with others. Taking into account all of the circumstances, including the significant and ongoing impact the discrimination had on Ms. Jickling, I agree that an award of $40,000 for injury to dignity, feelings and self-worth is appropriate.
E. Interest
[98] The Tribunal has the discretion to award interest on awards. An award of interest is part of the compensatory nature of the Tribunal’s awards, recognizing that but for the discrimination a complaint would have had the use of money now awarded. The interest places the complainant in the economic position they would have been in but for the discrimination: Vasil v. Mongovius and another (No. 3) , 2009 BCHRT 117.
[99] I find it appropriate to order post-judgment interest on all the amounts awarded as part of an attempt to fully compensate Ms. Jickling for the loss and injury. The interest is to be paid based on the rates set out in the Court Order Interest Act .
V CONCLUSION
[100] I make the following orders:
a. I order Sweet Meadows to cease and refrain from committing the same or a similar contravention of the Code: s. 37(2)(a).
b. I declare that Sweet Meadows’ conduct in terminating Ms. Jickling’s employment contravened s. 13 of the Code: s. 37(2)(b).
c. I order Sweet Meadows to pay Ms. Jickling $1,825.36 for out-of-pocket expenses: s. 37(2)(d)(ii).
d. I order Sweet Meadows to pay Ms. Jickling $40,000 as compensation for injury to her dignity, feelings, and self-respect: s. 37(2)(d)(iii).
e. I order Sweet Meadows to pay Ms. Jickling post-judgment interest on all amounts awarded until paid in full, based on the rates set out in the Court Order Interest Act .
Edward Takayanagi
Tribunal Member