Swanson v. BC Ministry of Attorney General, 2024 BCHRT 336
Date Issued: December 5, 2024
File: CS-001843
Indexed as: Swanson v. BC Ministry of Attorney General, 2024 BCHRT 336
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:
Lianna Swanson
COMPLAINANT
AND:
His Majesty the King in the Right of the Province of British Columbia as represented by Ministry of Attorney General of British Columbia
RESPONDENT
REASONS FOR DECISION
APPLICATION TO DISMISS A COMPLAINT
Section 27(1)(c)
Tribunal Member: Ijeamaka Anika
Counsel for the Complainant: Glen A. Purdy, K.C.
Counsel for the Respondent: Rochelle Pauls
I INTRODUCTION
[1] Lianna Swanson started working as a Crown Prosecutor in 1992. She alleges that His Majesty the King in right of the Province of British Columbia, as represented by the Ministry of Attorney General of British Columbia [the Ministry ] discriminated against her based on mental disability in the area of employment contrary to s. 13 of the Human Rights Code by failing to accommodate her disability. Due to Ms. Swanson’s disability, she is unable to appear in court. Since 2017, Ms. Swanson has been off work because of her disability. Ms. Swanson says she would like to return to work and there are functions she could perform besides attending court, but the Ministry has refused to accommodate her request to return to work. Further, Ms. Swanson says she is able to attend court for bail hearings if attendance is virtual.
[2] The Ministry denies discriminating and applies to dismiss the complaint under s. 27(1)(c) of the Code on the basis that Ms. Swanson’s complaint has no reasonable prospect of success. The Ministry argues that there is no reasonable prospect the complaint will succeed because it could not accommodate Ms. Swanson without incurring undue hardship. It says that attending court is a core duty of Crown Counsel and Ms. Swanson is permanently restricted from attending court. Therefore, the Ministry says that any accommodation not to attend court would constitute undue hardship. The Ministry also says that in any event, it did not receive updated medical information that Ms. Swanson is able to attend court for bail hearings if attendance is virtual.
[3] For the reasons that follow, I deny the application. I am not satisfied that the Ministry is reasonably certain to prove that it would incur undue hardship by accommodating Ms. Swanson. 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. I make no findings of fact.
II BACKGROUND
[4] This background is taken from the materials filed by the parties.
[5] The BC Prosecution Service [ BCPS ] is the criminal justice branch of the Ministry. Crown Counsel are designated under BCPS to represent the Crown in all prosecution-related matters before all courts. BCPS has approximately 500 Crown Counsel located in communities throughout the province. The role of Crown Counsel is governed by an agreement between the Government of the Province of British Columbia represented by the BC Public Service Agency [ PSA ] and the British Columbia Crown Counsel Association.
[6] Ms. Swanson’s position is located in the Cranbrook Crown Counsel office. The Ministry says the Cranbrook office is staffed by 6-7 full-time Crown Counsel. Ms. Swanson started her job as Crown Counsel in 1992, initially in a contract position. She became a full-time employee in July 1996, and from 2001, worked 4 days per week until her medical leave. She says she would attend court approximately one or two days a week. Beyond court attendance, Ms. Swanson says she would be in the office performing administrative duties.
[7] The Cranbrook office has five circuit court locations. The Ministry says that all of these circuit court locations are a significant distance from the Cranbrook office and may involve overnight travel for Crown Counsel attending court in those locations. It also says that when Crown Counsel attends circuit court locations, they are responsible for all courtroom duties for a given day, including hearings, dispositions, and trials.
A. First Medical leave
[8] Ms. Swanson was diagnosed with Post Traumatic Stress Disorder [ PTSD ] due to a workplace-related injury. It is unclear when Ms. Swanson’s diagnosis was made and nothing in this decision turns on it. Ms. Swanson took a medical leave of absence between August 2016 and February 2017. During this time, she received benefits under the applicable Short-Term Illness or Injury Plan [ STIIP ].
[9] Ms. Swanson says her symptoms improved and in February 2017, she attempted a gradual return to work. During this time, Ms. Swanson was assigned office duties and was not required to attend court. According to the accommodation arrangements, Ms. Swanson would not attend court and would only perform office duties.
[10] The Ministry says these were temporary accommodation arrangements. It says the accommodations were initially approved for two months and later extended to June 30, 2017. Ms. Swanson says she was able to meet the expectations of her job during this accommodation.
B. Second Medical leave
[11] By June 2017, Ms. Swanson says her condition deteriorated, she was unable to continue her work, and she went on another medical leave. The same month, Ms. Swanson provided the Ministry with a Doctor’s Certificate stating that she could not perform full or modified job duties and would not return to work for at least six months.
[12] In December 2017, Ms. Swanson was approved for Long Term Disability [ LTD ] under the “Totally Disabled – Own Occupation” provision of the LTD plan. The Ministry says that under the Own Occupation provisions, employees who are unable to perform all the duties of their own occupation for the first 25 months of LTD are considered totally disabled.
[13] In April 2018, a member of Ms. Swanson’s treatment team contacted the Ministry regarding a possible gradual return to work for Ms. Swanson. The Ministry requested medical evidence to confirm whether Ms. Swanson was able to return to work. On April 19, 2018, Ms. Swanson provided a medical certificate stating that she was unable to return to work at that time.
[14] On July 11, 2018, WorkSafe advised the Ministry that Ms. Swanson’s condition was permanent, and she was restricted from performing job duties that involved court appearances or appearing in the public eye. WorkSafe also informed the Ministry that Ms. Swanson would be able to complete tasks involving focus and attention when she was able to self-pace and integrate micro-breaks. Ms. Swanson did not return to work at this time and continued to undergo treatment.
[15] In September 2018, the PSA emailed the Ministry to find out if it could accommodate Ms. Swanson with the restrictions WorkSafe identified in July 2018. The Ministry advised that it was not possible to accommodate Ms. Swanson’s restrictions in the Cranbrook office. The Ministry advised that there may be potential opportunities if Ms. Swanson was willing to relocate. The Ministry says it understood Ms. Swanson preferred to remain in Cranbrook. Ms. Swanson does dispute this, and I note that her medical report states that there is a risk of worsening PTSD if Ms. Swanson is required to relocate. She continued to undergo treatment at that time.
C. Back to work proposal
[16] In August 2019, Ms. Swanson emailed a proposed accommodated duties plan [ Back to Work plan ] to the Ministry. Ms. Swanson’s proposed duties, which she drafted with the assistance of her WorkSafe BC advisor, were as follows:
Four days a week with every Friday off. This has been my permanent schedule since the early 2000s.
In office appropriate job duties would include:
-Charge approvals, within my predetermined limitations,
-Ensuring the proper implementation of ministry and Branch policies, procedures and programs,
-Responsible for: scheduling the rota, and Crown counsel to cases, case management, and retaining ad hoc counsel where required,
-The integration of the Crown Counsel office into the local criminal justice system and community.
-Assisting Trial Crown, as required, with trial preparation, and legal research.
I would eventually like to work up to doing remand court (no trials). This would assist my Crown co-workers by allowing them more preparation time for trials and other associated responsibilities.
[17] Between August and September 2019, there were discussions between the PSA, WorkSafe BC, and the Ministry about Ms. Swanson’s proposed back to work plan. On August 28, 2019, the PSA asked the Ministry for input on Ms. Swanson’s Back to Work plan and whether Ms. Swanson’s proposed duties could be performed from the Cranbrook office.
[18] Between September 3 and 4, 2019, the relevant Ministry representatives considered the back to work plan over a series of emails. Regional Crown Counsel emailed that lawyers were required to attend court, and the Crown Office could only accommodate Ms. Swanson not to attend court for a brief period of time. The Director of Operations in the BCPS agreed with Regional Crown Counsel that lawyers were expected to attend court, especially in a smaller office location like Cranbrook.
[19] The Deputy Regional Crown Counsel in Cranbrook’s emailed that the Cranbrook office’s workload was tracking upward, and it could use the help. He stated that “IF Lianna would be an addition to the office and NOT counted as one of your normal staffing level of 5 Crown (plus me as DRCC), there would be a benefit.”
[20] On September 6, 2019, Regional Crown Counsel and Deputy Director, Regional Operations for BCPS Interior Region responded to PSA’s email stating that Ms. Swanson’s request could not be operationally accommodated because prosecutors were required to attend to all kinds of courtroom duties, the back to work proposal would place undue hardship on the remaining lawyers who would take on the additional court obligations, and there were no other positions available at the Cranbrook office within Ms. Swanson’s pay scale.
[21] By December 2019, PSA emailed the Ministry that it had forwarded the Ministry’s response to WorkSafe. PSA also told the Ministry that there was no official deadline for WorkSafe’s feedback and there was no way to officially determine whether another return to work would be proposed for Ms. Swanson.
[22] In January 2020, the Ministry’s Deputy Director, Regional Operations emailed PSA to ask whether there was a time period to declare Ms. Swanson’s position “open and no longer occupied by the former incumbent”. Following further email correspondence between the Deputy Director and PSA, PSA informed the Deputy Director that Ms. Swanson’s status in the HR system was showing as “Terminated/Long Term Disability Separation”:
As of January 6, 2020, the employer is no longer obligated to keep [Ms. Swanson’s] job. WorkSafe will continue on with their process. She will remain on LTD unless her condition changes. If, at anytime in the future, her medical condition improves and her limitations no longer prevent her from performing the duties of her own job, we would come back to you to ask if you have a position.
[23] The Ministry says it has not received any updated medical information from Ms. Swanson that modified her medical restrictions to permit it to consider a graduated return to work.
[24] From the materials, I note that Ms. Swanson’s doctor provided her with a medical report dated September 24, 2021, stating that she could return to work with the restrictions in her back to work proposal. Ms. Swanson says the medical information was provided during the Tribunal’s proceeding, but she does not say whether the letter was provided to the Respondents as part of the accommodation process.
III DECISION
[25] The Ministry applies to dismiss Ms. Swanson’s complaint on the basis that it has no reasonable prospect of success: Code, s. 27(1)(c) The onus is on the Ministry to establish the basis for dismissal.
[26] Section 27(1)(c) is part of the Tribunal’s gate-keeping function. It allows the Tribunal to remove complaints which do not warrant the time and expense of a hearing.
[27] The Tribunal does not make findings of fact under s. 27(1)(c). Instead, the Tribunal looks at the evidence to decide whether “there is no reasonable prospect that findings of fact that would support the complaint could be made on a balance of probabilities after a full hearing of the evidence ” : Berezoutskaia v. British Columbia (Human Rights Tribunal) , 2006 BCCA 95 at para. 22, leave to appeal ref’d [2006] SCCA No. 171. The Tribunal must base its decision on the materials filed by the parties, and not on speculation about what evidence may be filed at the hearing: University of British Columbia v. Chan , 2013 BCSC 942 at para. 77 .
[28] A dismissal application is not the same as a hearing: Lord v. Fraser Health Authority , 2021 BCSC 2176 at para. 20 ; SEPQA v. Canadian Human Rights Commission , [1989] 2 SCR 879 at 899. The threshold to advance a complaint to a hearing is low. In a dismissal application, a complainant does not have to prove their complaint or show the Tribunal all the evidence they may introduce at a hearing. They only have to show that the evidence takes their complaint out of the realm of conjecture: Workers’ Compensation Appeal Tribunal v. Hill, 2011 BCCA 49 [ Hill ] at para. 27 .
[29] To prove her complaint at a hearing, Ms. Swanson will have to prove that she has a characteristic protected by the Code , she was adversely impacted in employment 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 Ministry to justify the impact as a bona fide occupational requirement. If the impact is justified, there is no discrimination.
[30] The Ministry argues that the complaint has no reasonable prospect of success because it is reasonably certain that it would establish a defence of bona fide and reasonable occupational requirement at the hearing : Purdy v. Douglas College and others , 2016 BCHRT 117 at para. 50. For the purposes of this application, the main issue is whether the Ministry is reasonably certain to prove it accommodated Ms. Swanson. For that reason, I will assume without deciding that Ms. Swanson has taken the elements of her case out of the realm of conjecture.
[31] To justify the adverse impact experienced by Ms. Swanson, at a hearing, the Ministry would have to prove that: (1) it adopted the standard for a purpose rationally connected to the function being performed, (2) it adopted the standard in an honest and good faith belief that it was necessary to the fulfillment of that legitimate purpose; and (3) the standard is reasonably necessary to the accomplishment of that legitimate purpose. This third element encompasses the Ministry’s duty to accommodate Ms. Swanson to the point of undue hardship: British Columbia (Public Service Employee Relations Commission) v. British Columbia Government and Service Employees’ Union (Meiorin Grievance) , [1999] 3 SCR 3 [ Meiorin ] at para. 54 .
[32] There is no dispute that the Ministry implemented the requirement of court attendance for Crown Counsel for the rational purpose of preparing and conducting prosecutions. The Ministry says that the ability to attend court is rationally connected to the job of contributing to the protection of society by preparing and conducting prosecutions. There is also no dispute that the Ministry adopted the court attendance requirement in good faith as part of fulfilling Crown Counsel responsibilities set out in s. 4 of the Crown Counsel Act including s. 4(2): “conduct the prosecutions approved.”
[33] The crux of the issue is the third element of the test: whether the Ministry is reasonably certain to prove that it took all reasonable and practical steps to accommodate Ms. Swanson and that it would have suffered undue hardship by allowing Ms. Swanson not to attend court. What is reasonable and what constitutes accommodation short of undue hardship is fact specific and will turn on the specific circumstances of each case: Central Okanagan School District No. 23 v. Renaud , [1992] 2 SCR 970.
[34] The Ministry argues that it would have suffered undue hardship by accommodating Ms. Swanson. It says attending court is a core duty for Crown Counsel, and in a small office like the Cranbrook office, if Ms. Swanson did not attend court, it would have a significant impact on the morale and workload of other Crown Counsel in the office. It argues that the undue hardship is not speculative. It says in 2017 when it accommodated Ms. Swanson’s gradual return to work by relieving her of court duties, it had to engage the services of other Crown and ad hoc counsel to cover Ms. Swanson’s court duties and by pulling Crown Counsel from other offices from time to time. It says that while this accommodation was possible in the short-term, in anticipation of Ms. Swanson’s full return to work, it was not sustainable as a long-term solution.
[35] Ms. Swanson disputes this and argues that the requirement for other Crown and ad hoc counsel was not solely down to her limitations and restrictions. She says the former administrative crown in the Cranbrook office had been appointed to the Bench in January 2017 and had yet to be replaced, which also accounted for the need for other counsel.
[36] I am not persuaded that the Ministry is reasonably certain to prove it would have incurred undue hardship. There is no evidence before me concerning the Ministry’s operational requirements in the Cranbrook Office or to explain how it determined that the sole reason was for requiring ad hoc and other Crown counsel was to accommodate Ms. Swanson. The Ministry does not address Ms. Swanson’s argument that another Crown Counsel leaving the office also reduced the number of Crown Counsel in the Cranbrook Office. Further, the Ministry does not explain the long-term impact on the Cranbrook Office if it used ad-hoc counsel or pulled Crown Counsel from other offices from time to time to accommodation Ms. Swanson. As stated above, in a dismissal application, 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: Chan at para. 77.
[37] Ms. Swanson also disputes that the Ministry could not reasonably accommodate her for the following reasons:
a. In 2019, following her request for accommodation, Deputy Regional Counsel in the Cranbrook Office appeared to suggest (in the email thread among Ministry representatives concerning Ms. Swanson’s accommodation) that Ms. Swanson’s back to work proposal could be accepted because the Cranbrook office was very busy, provided her position would be in addition to the normal staffing requirements. She argues that the Ministry did not explore this option with her, rather communicated that she could not be accommodated.
b. The Ministry did not make her aware of the Weekend Bail Assignments position (now known as “Bail Hub”) initiated by the Ministry in 2018 which she would have taken up if it had been brought to her attention.
[38] I will address each of the Ministry’s arguments in turn.
1. The additional staff option
[39] On the evidence before me, the Deputy Regional Counsel – in response to Ms. Swanson’s back to work proposal – provided feedback which stated that it may be possible for the Cranbrook office to accommodate Ms. Swanson as an addition to the normal staffing requirements because the office was “very busy and could use the help.” The Ministry does not argue that adding a position for Ms. Swanson would cause undue hardship.
[40] There is also no evidence before me concerning whether the Ministry actually considered this option for Ms. Swanson. Beyond the Deputy Regional Counsel’s email on the issue, there is no evidence before me concerning the Ministry representatives’ response to this proposal and the Ministry did not address it in its submissions. On this basis, I am not persuaded that the Ministry is reasonably certain to prove that it reasonably accommodated Ms. Swanson to a point short of undue hardship.
2. Weekend Bail Assignments/Bail Hub option
[41] Ms. Swanson’s evidence is that the Weekend Bail Assignments/Bail Hub initiative commenced in 2018 prior to her proposal to the Ministry about returning to work. She says that Crown Counsel who were doing bail hearings exclusively were approved to work remotely five days a week and bail hearings were handled remotely by telephone or video. She put before me an email from the President of BC Crown Counsel Association informing her that “employees in the bail hub will be permitted to work remotely on a full-time basis.” On Ms. Swanson’s evidence, she did not know of the Weekend Bail Assignments in 2019 when she made her proposal for an accommodation but would have if she had known of it.
[42] In this regard, the Ministry argues that Ms. Swanson’s medical evidence contradicts Ms. Swanson’s assertion that she is now able to attend court for bail hearings if the attendance is virtual. It also argues that Ms. Swanson did not take steps to commence the return-to-work planning by providing updated medical information to indicate that she is no longer totally disabled from any occupation and is able to attend court if done by virtual means.
[43] I am not persuaded by the Ministry’s argument here. The burden lies with the Ministry in this application to show that they are reasonably certain to prove at a hearing that they took steps to reasonably accommodate Ms. Swanson to the point short of undue hardship: Ontario (Human Rights Comm.) and O’Malley v. Simpsons-Sears Ltd . [1985] 2 S.C.R. 536. The search for accommodation is a multi-party inquiry in which employees have a duty to participate in the accommodation process, and to give their employers information about how to accommodate them : Central Okanagan School District No. 23 v. Renaud [1992] 2 S.C.R. 970. The Supreme Court in Renaud also stated that the accommodation process requires the party best placed to make a proposal to advance one. The other party must then respond with alternative suggestions and refinements as necessary, and the exchange should continue until a satisfactory resolution is achieved or it is clear that no such resolution is possible: Renaud .
[44] The Ministry has not explained whether it considered the Weekend Bail Assignments for Ms. Swanson when she indicated that she wanted to return to work and proposed the duties she could perform. It has also not explained whether it sought clarification from Ms. Swanson on whether she could perform the Weekend Bail Assignment or attend court for bail hearings if the hearings were virtual. Further, the Ministry has also not provided evidence that it took steps to request an updated medical report from Ms. Swanson regarding workplace restrictions.
[45] While the Ministry is correct that an employer is entitled to medical information in the context of seeking to return an employee to work, it has not explained whether it requested this information from Ms. Swanson. The Ministry requested medical information from Ms. Swanson’s doctor when she sought to return to work in April 2018. It is not clear on the evidence, whether the Ministry did not do so in 2019 when Ms. Swanson communicated to the Ministry that she was ready to return to work and provided the Ministry with her back to work proposal. At the hearing, the Tribunal may find that the obligation rested with the Ministry to seek clarification on the details of the accommodation Ms. Swanson needed to be able to return to work.
[46] On the whole of the evidence before me, I am not satisfied that Ms. Swanson’s complaint has no reasonable prospect of success. I am not persuaded that the Ministry is reasonably certain to prove it could not accommodate Ms. Swanson’s request to return to work because attending court is a bona fide occupational requirement for all Crown Counsel or because Ms. Swanson did not engage in the formal process for employees returning from a long-term disability leave.
IV CONCLUSION
[47] I deny the application to dismiss the complaint.
Ijeamaka Anika
Tribunal Member
Human Rights Tribunal