Michaud v. Ministry of Finance (No. 2), 2024 BCHRT 341
Date Issued: December 13, 2024
File: CS-000457/17331
Indexed as: Michaud v. Ministry of Finance (No. 2), 2024 BCHRT 341
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:
Kathleen Michaud
COMPLAINANT
AND:
His Majesty the King in Right of the Province of British Columbia as represented
by the Ministry of Finance
RESPONDENT
REASONS FOR DECISION
APPLICATION TO DISMISS A COMPLAINT
Rule 19(4)
Section 27(1)(d)(ii)
Tribunal Member: Kathleen Smith
For the Complainant: Kathleen Michaud
Counsel for the Respondent: Justin Mason
I INTRODUCTION
[1] In this decision, I explain why I dismiss Kathleen Michaud’s human rights complaint under s. 27(1)(d)(ii) of the Human Rights Code , based on a reasonable settlement offer.
[2] Ms. Michaud’s original complaint alleges that her former employer and union discriminated against her in her employment based on mental and physical disability. The complaint arises out of events starting in September 2016, including allegations that the employer and the union failed in their duty to accommodate Ms. Michaud’s disability-related needs. Ms. Michaud alleges that this conduct resulted in negative impacts including loss of income associated with being off work, and physical and mental suffering.
[3] The Tribunal narrowed the scope of the complaint in Michaud v. BC Government and Service Employees’ Union and another , 2021 BCHRT 115 [ Michaud No. 1 ], by dismissing those allegations predating May 2017 and dismissing the complaint against the union altogether. The remaining respondent in this case is His Majesty the King in Right of the Province of British Columbia as represented by the Ministry of Finance [the Ministry ].
[4] In advance of the scheduled hearing, the Ministry made a with prejudice offer to Ms. Michaud in an attempt to fully and finally resolve the complaint. At the time of the offer, the Ministry advised Ms. Michaud that if she rejected the offer, it may apply to dismiss her complaint under s. 27(1)(d)(ii) of the Code .
[5] Ms. Michaud did not accept the offer, and the Ministry applied to dismiss the remainder of the complaint on the basis that Ms. Michaud has refused to accept a reasonable settlement offer: Code , s. 27(1)(d)(ii), Rules of Practice and Procedure , Rule 19(4). The Ministry argues that it would not further the purposes of the Code to proceed with the hearing in circumstances where it made a comprehensive offer that includes reasonable monetary and non-monetary terms.
[6] Ms. Michaud opposes the dismissal application on two bases. She disputes that the offer presented by the Ministry is reasonable. She also argues that proceeding to a hearing will permit the Tribunal to provide guidance on issues that are important to the public.
[7] In this decision, I must address the following issues:
a. Is the Ministry’s settlement offer reasonable?
b. Would it further the purposes of the Code to allow the complaint to proceed where Ms. Michaud rejected the offer?
[8] For the following reasons, I grant the application and dismiss the complaint. To make this decision, I have considered all the information filed by the parties, as well as documents in the Tribunal’s record of this complaint. In these reasons, I only refer to what is necessary to explain my decision.
II BACKGROUND
[9] In this section, I set out a high-level chronology to put this decision in context. A detailed background to the complaint is provided in Michaud No. 1 at paragraphs 11 to 49.
[10] Ms. Michaud filed her complaint on January 22, 2018. In brief, the complaint alleges that Ms. Michaud was forced off work, including without pay, when she could have worked with an accommodated schedule as recommended by her doctor. The complaint also alleges that the Ministry made excessive demands for medical information and testing, which resulted in Ms. Michaud remaining off work for an extended period.
[11] The following are remedies listed by Ms. Michaud in the complaint:
a. reinstatement with the accommodation recommended by her doctor;
b. transfer to another supervisor;
c. clean work record;
d. compensation for lost wages and benefits;
e. compensation for injury to dignity, feelings, and self-respect; and
f. an order that the Ministry cease systemic discrimination against persons with invisible disabilities.
[12] The Ministry denies discriminating and in its March 2019 response to the complaint asserts that any barrier Ms. Michaud faced in her return to work or accommodation was attributable to her repeat and persistent refusal to provide necessary medical information. The Ministry claims that Ms. Michaud began an unpaid leave of absence as of December 28, 2017, because she refused to provide appropriate medical information or apply for long-term disability benefits. The Ministry further asserts that Ms. Michaud stopped engaging in the accommodation process at the end of March 2018. The Tribunal noted in Michaud No. 1 that, at the time of the application, Ms. Michaud had not returned to work.
[13] In July 2023, Ms. Michaud filed her statement of remedy and list of documents regarding remedy. She listed the following remedies:
a. wage loss 2018 to 2024 (approximately $430,000);
b. expenses including mortgage costs and reduced pension for 30 years (approximately $230,000);
c. injury to dignity ($60,000);
d. a positive letter of reference;
e. a work from home position with a different Ministry; and
f. steps to address discriminatory practices, including the process for requiring an employee to be examined by the employer’s doctors.
[14] Ms. Michaud provided only a few details regarding the claimed wage loss over five years. To the best of my understanding, she has calculated her losses based on the differential between what she would have earned had she continued to work in her former position at the Ministry, compared to her actual earnings including pension earnings and earnings from new employment starting in 2021. In the statement of remedy, Ms. Michaud asserts that she was forced to retire on a reduced pension. She also says that she began a new career as her health improved, that she could not find work until 2021, and that her current work is at a lower income level and will be for several years.
[15] In support of her statement of remedy, Ms. Michaud listed documents including BC Public Service salary grids for 2018 to 2023, income information from Notices of Assessment 2015 to 2022, pension-related documents, and mortgage-related documents. Ms. Michaud did not attach those documents to her submissions on this application.
[16] On September 27, 2024, the Ministry wrote to Ms. Michaud with an offer to settle the complaint. Below, I summarize the terms of the offer.
a. An amount for wage loss equivalent to approximately seven months of employment, using current salary figures: $56,275.50.
b. An amount for injury to dignity, feelings, and self-respect: $30,000.
c. A good faith commitment to conduct a review of the circumstances of this complaint, to examine where improvements could be made in communications and steps in the process.
d. The offer is made on a “with prejudice” basis and on the understanding that the Ministry may apply to dismiss the complaint under s. 27(1)(d)(ii) if Ms. Michaud rejects it.
e. The offer remains open for acceptance notwithstanding the filing of the application. The offer will expire two weeks following the Tribunal’s decision granting the application and dismissing the complaint or on the first day of the scheduled hearing, whichever comes first.
[17] The Ministry filed its dismissal application with the Tribunal on the same day and the Tribunal set a schedule for written submissions. Ms. Michaud opted to respond to the application rather than accept the offer.
III ANALYSIS AND DECISION
[18] The Ministry applies to dismiss the complaint under s. 27(1)(d)(ii) of the Code. The Ministry argues that it would not further the Code’s purposes to allow the complaint to proceed to the hearing because it made a reasonable settlement offer.
[19] Section 27(1)(d)(ii) allows the Tribunal to dismiss a complaint where proceeding with it would not further the purposes of the Code . The Tribunal has held that when a reasonable settlement offer has been made, it may not further the Code ’s purpose to proceed with a complaint: Heitner v. BC Provincial Renal Agency and others (No. 3) , 2020 BCHRT 134 [ Heitner ] at para. 46.
[20] There are two prerequisites for the Tribunal to consider dismissing a complaint based on a reasonable settlement offer. First, the settlement offer must be made “with prejudice” because the Tribunal cannot rely on information about settlement discussions that is inadmissible based on privilege: Dar Santos v. University of British Columbia , 2003 BCHRT 73 [ Dar Santos ] at para. 64; Carter v. Travelex Canada and Travelex UK (No. 3) , 2007 BCHRT 275 at para. 25. Second, the offer must remain open for the complainant’s acceptance regardless of the outcome of the application to dismiss: Issa v. Loblaw , 2009 BCHRT 264 [ Issa ] at para. 35. There is no dispute that both prerequisites are met in this case.
[21] If the prerequisites are met, the Tribunal takes a two-step approach to determining whether to dismiss a complaint based on a reasonable settlement offer. The first step is to assess whether the offer is reasonable: Dar Santos at para. 59. If it is, then the next step is to assess whether allowing the complaint to proceed would serve the purposes of the Code .
[22] I begin my analysis by determining whether the offer is reasonable.
A. Step 1 – is the settlement offer reasonabl e?
[23] The parties disagree on whether the offer is reasonable. The Ministry argues that in the full context of this case, the settlement offer is fair and reasonable. Ms. Michaud disagrees and argues that the offer does not fully address her allegations and the available remedies.
[24] In assessing whether an offer is reasonable, the Tribunal assumes that the complainant will prove their allegations. At the same time, the settlement offer does not have to mirror exactly what the Tribunal would order. To meet the first part of the test, a settlement offer must consist of reasonable monetary and non-monetary remedies the Tribunal would likely order if the complainant were successful at a hearing: Heitner at para. 48.
[25] Relevant considerations for determining the reasonableness of an offer include whether the offer:
a. is with prejudice, so that the Tribunal can examine its terms;
b. remains open for the complainant’s acceptance even if it is rejected and even if the Tribunal were to allow the application to dismiss;
c. fully addresses the allegations and available remedies, both monetary and non‐monetary;
d. demonstrates that the respondent’s remedial actions adequately remedied the alleged violation and are consistent with the types of orders the Tribunal might make if the complaint were successful; and
e. includes a monetary component within the reasonable range that the Tribunal might award if the complaint were found to be justified.
Issa at para. 35
[26] As set out above, the parties agree that the first two Issa factors have been met. The offer is clearly identified as “with prejudice” and expressly states that it is open for Ms. Michaud to accept during the application to dismiss process and remains open until the earlier of two weeks after the application is granted and the complaint is dismissed, or the first day of the scheduled hearing.
[27] Next, I turn to the Issa factors in dispute.
Does the offer fully address the allegations and available remedies, both monetary and non-monetary?
[28] There is no dispute that the offer includes both monetary and non-monetary remedies; however, the parties disagree on whether they fully address the allegations and available remedies.
[29] I begin with the allegations.
[30] The Ministry argues that Michaud No. 1 is the starting point for this application because it narrowed the scope of the complaint. Ms. Michaud agrees that the complaint is now limited to the allegations from May 2017 onward, apart from the performance allegations. She further agrees that those allegations are what the Tribunal ought to consider for the purpose of assessing the reasonableness of the offer.
[31] To determine whether the offer fully addresses the allegations, I agree that it is helpful to return to Michaud No. 1 . In that decision, the Tribunal held that the crux of the complaint is Ms. Michaud’s allegation that the Ministry failed to accommodate her, culminating in her remaining off work for an extended period of time: Michaud No. 1 at para. 59. The eighteen allegations highlighted by Ms. Michaud in her response to the application are consistent with that summary. That is, they all relate to aspects of the accommodation process, including: alleged statements by Ministry staff that they cannot accommodate her; the requirement to participate in a medical examination; being forced onto a sick leave; and requests for information her doctor has already provided.
[32] I am satisfied that the offer addresses the impacts of the alleged failure to accommodate and associated income loss. The offer includes amounts for lost wages and injury to dignity, 56,275.50 and $30,000 respectively. It also includes non-monetary terms which I address next.
[33] I agree with the Ministry that in Michaud No. 1 , the Tribunal repeatedly raised questions about the steps and communications undertaken by the Ministry in the accommodation process, including whether certain information could have been obtained from Ms. Michaud or her doctor directly before requiring a medical examination. Where the offer includes a review process to examine where improvements could be made in communications and steps in the accommodation process, I am satisfied that the offer addresses the alleged failings in the accommodation process.
[34] In a later section, I assess the adequacy of the specific terms of the offer.
[35] Next, I turn to the question of available remedy under this factor.
[36] As I understand Ms. Michaud, her objection under this part is that the offer does not address the systemic remedy that she set out in the complaint. That is, an order that the Ministry cease systemic discrimination against persons with visible disabilities.
[37] The Ministry agrees that the offer does not contain a systemic remedy. It argues that there is no basis for a systemic remedy where the complaint does not allege systemic discrimination.
[38] The complaint before me is individual in nature and concerns the accommodation of Ms. Michaud’s disability-related needs. It is not a group, class, or representative complaint. The complaint also does not allege a pattern of discrimination within the workplace. On the contrary, the remaining allegations relate to how her specific request for accommodation was handled by the Ministry, including specific interactions with Ministry staff regarding her situation. Where the allegations are not systemic, Ms. Michaud has not persuaded me that the offer does not fully address the available remedies, particularly where one of the proposed terms is a review of the circumstances of her complaint. In short, I am not satisfied that the absence of a systemic remedy where the allegations are not systemic means this factor is not met.
[39] In summary, I am satisfied that the offer fully addresses the allegations and available remedies. In the next section, I assess the adequacy of the proposed remedies.
Do the proposed remedial actions adequately remedy the alleged violation and are they consistent with the types of orders the Tribunal might make if the complaint were successful?
[40] In this section, I begin by assessing the adequacy of the non-monetary aspects of the offer, starting with the review.
[41] The Ministry’s offer describes the proposed review as follows:
The Respondent will in good faith conduct a review of the circumstances of this Complaint, to examine where improvements could be made in communications and steps in the process (the “Review”). The Parties agree that the nature and conduct of this Review, as well as recommendations that result from the Review, if any, will be at the sole discretion of the Respondent.
[42] The Ministry argues that this part of the offer is akin to or will achieve the same or similar result as an order under ss. 37(2)(a), 37(2)(b), and/or 37(2)(c) since it may lead to improvements and recommendations in the accommodation process in similar circumstances.
[43] Ms. Michaud disagrees that this term is comparable to an order under s. 37 or would achieve the same or similar result. First, she argues that the review is unlikely to lead to any voluntary improvements in how the Ministry treats workers who need disability accommodation since it is premised on the Ministry’s understanding of its obligations under the law. Second, she argues that, even if there is a chance of improvement, any such improvement would still be voluntary and subject to the Ministry’s interpretation of the relevant law. Third, she argues that any potential improvement could not possibly have the same impact as orders declaring the conduct discriminatory and requiring the Ministry to cease the discrimination and/or create an ameliorating program.
[44] In reply, the Ministry elaborates on its position stating that when it formulated the offer and proposed the review, it was in direct response to observations made by the Tribunal in Michaud No. 1. The Ministry points to paragraphs 66, 68, 70 and 71 in support of this proposition, arguing that these are examples of where the Tribunal suggested that communications were not as clear as they could have been, and there could be improvements in communications and the transmission of information. In short, the Ministry says that the review represents a good faith effort to recognize and address its understanding of the decision.
[45] In my view, the Ministry’s interpretation of those paragraphs does not capture the full extent of the Tribunal’s comments on why it was not persuaded that the Ministry was reasonably certain to prove it discharged its duty to accommodate. I agree that the Tribunal raised questions about the clarity and sufficiency of the Ministry’s communications, including when it told Ms. Michaud her medical certificates were insufficient (para. 61), and when it stated that it remained open to considering other possible accommodations (para. 71). I am satisfied that the offer is responsive to those comments.
[46] Another key question raised by the Tribunal was whether it was necessary to require a medical examination as a first step, rather than seeking additional information from Ms. Michaud or her physician, which it ultimately did several months later. This is an issue raised squarely by Ms. Michaud in her response to the application. She argues that the review is unlikely to result in improvements for workers with disabilities needing accommodation because the Ministry continues to argue that it is entitled to require medical examinations. As set out in Michaud No. 1 , Ms. Michaud takes the view that the requirement she participate in medical examinations unreasonably and unnecessarily invaded her privacy.
[47] When I look at the language of the proposed review, I am satisfied that it is broad enough to capture the question raised by the Tribunal and the argument advanced by Ms. Michaud regarding independent medical examinations. In my view, the commitment to look at communications and steps in the process, reasonably captures whether the requirement for a medical examination will be the most minimally invasive step for a person in similar circumstances.
[48] I can appreciate that Ms. Michaud is not satisfied with the ambiguity of what improvements may result from the review. However, where the Ministry agrees to conduct a good faith review to identify process and communications improvements, I am satisfied that it is consistent with the forward-looking types of orders the Tribunal makes when a complaint is successful at a hearing. The proposed review is a future-oriented action aimed at improving communications and steps in the process for future employees in similar circumstances.
[49] I can also appreciate that Ms. Michaud is not satisfied with the Ministry’s ongoing assertion that it acted reasonably and in good faith throughout the accommodation process. However, it is not always necessary for a respondent to admit liability for an offer to be reasonable: Frick v. UBC and another (No. 3) , 2009 BCHRT 85 at para. 54.
[50] On balance, I am satisfied that the review appears reflective of the alleged failings in the accommodation process, as well as questions raised by the Tribunal in Michaud No. 1 about the steps and communications undertaken by the Ministry in the accommodation process. And, where this part of the offer may fall short by not expressly referring to the medical examination issue, I am satisfied that it is outweighed by the strong public policy in favour of encouraging parties to human rights complaints to resolve disputes on a voluntary basis: Thompson v. Providence Health Care , 2003 BCHRT 58 at para. 38.
[51] Next, I consider Ms. Michaud’s argument that this factor is not met because the Ministry did not include a positive work reference as set out in her statement of remedy. Ms. Michaud says that her career prospects depend strongly on reputation and that her reputation was damaged by the actions of the Ministry, including her supervisors. She explains that this is why she requested the reference.
[52] In response to this argument, the Ministry questions the Tribunal’s authority to order a positive work reference. Notwithstanding this position, the Ministry agrees to provide a neutral letter of employment to Ms. Michaud. Ms. Michaud has not provided any authorities for the proposition that the Tribunal can order a positive letter of reference, and I am not aware of any decisions that address this issue. Where the Ministry agrees to provide a neutral letter, I am satisfied that this remedial factor is adequately addressed.
[53] In summary, I am satisfied that the non-monetary remedial actions in the Ministry’s settlement offer adequately address the alleged violations of the Code . In the next section, I assess the monetary aspect of the offer.
Is the monetary component within the reasonable range that the Tribunal might award if the complaint were found justified?
[54] The monetary aspect of the offer includes amounts for injury to dignity, feelings, and self-respect ($30,000) and wage loss ($56,275.50). The parties disagree on whether either amount is within the reasonable range of what the Tribunal might order if Ms. Michaud succeeded at the hearing.
[55] I begin my assessment with the offer of $30,000 for injury to dignity.
1. Injury to dignity, feelings, and self-respect
[56] This Tribunal has discretion to award a complainant an amount to compensate them for injury to their dignity, feelings, and self-respect: Code , s. 37(2)(d)(iii). The purpose of these awards is compensatory, and not punitive. In exercising this discretion, the Tribunal generally considers three broad factors: the nature of the discrimination, the complainant’s vulnerability, and the effect on the complainant: Torres v. Royalty Kitchenware Ltd. (1982), 1982 CanLII 4886 (ON HRT), 3 CHRR D/858 (Ont. Bd. Inq); Gichuru v. Law Society of British Columbia (No. 2), 2011 BCHRT 185 [ Gichuru No. 2 ] at para. 260, upheld in 2014 BCCA 396. The quantum is “highly contextual and fact-specific,” and the Tribunal has considerable discretion to award an amount it deems necessary to compensate a person who has been discriminated against: Gichuru No. 2 at para. 256; University of British Columbia v. Kelly, 2016 BCCA 271 at paras. 59-64.
[57] In her statement of remedy, Ms. Michaud requests $60,000 in compensation for the injury to her dignity, feelings, and self-respect. In support of this request, she describes being subjected to cruel, reckless, arbitrary and gaslighting behaviour that forced her out of her job. She describes other losses and harms as including the destruction of a career that took years to build and having to move for financial reasons and becoming isolated. She also says she experienced fear, anger, frustration, and extreme stress which can trigger her autoimmune disorder, and which in turn can have fatal complications. Ms. Michaud relies on Benton v. Richmond Plastics , 2020 BCHRT 82 [ Benton ] where the Tribunal awarded the complainant $30,000 for injury to her dignity and Senyk v. WFG Agency Network (No. 2) , 2008 BCHRT 376 [ Senyk ] where the Tribunal awarded $35,000 for injury to dignity. Ms. Michaud says that the discrimination in her case is far more serious than in Benton , justifying her request for double that amount. With respect to Senyk , she argues that there are similarities to her case, including “cruel, high-handed, and arbitrary” treatment by the employer.
[58] The Ministry offers $30,000 for injury to dignity and argues that this amount is well within the reasonable range of what the Tribunal might order assuming Ms. Michaud proves her case. The Ministry argues that $60,000 is not reasonable and relies on two cases to support its position: K v. RMC Ready Mix Ltd. and another (No. 4) , 2022 BCHRT 108 [ RMC Ready Mix ] where the Tribunal awarded $20,000 in injury to dignity and Chen v. La Brass Foods , 2019 BCHRT 111 where the Tribunal ordered $10,000. The Ministry argues that in both cases, the Tribunal found that the employer did not reasonably accommodate the employee.
[59] For the following reasons, I am persuaded that $30,000 falls within the reasonable range the Tribunal might award if Ms. Michaud were successful at a hearing.
[60] I begin by acknowledging that none of the cases cited by the parties mirror the exact circumstances of this case. However, I have reviewed and considered all of them in reaching my conclusion under this factor.
[61] The cases relied on by Ms. Michaud include awards for injury to dignity of $30,000 and $35,000. The offer almost mirrors those awards. I also find it relevant that in Benton , the more recent of those cases, the Tribunal expressly contemplated the upward trend in awards at this Tribunal: Benton at para. 78.
[62] The Ministry argues that Benton is not analogous to this case and is distinguishable for reasons including the employee was fired on her first day of work after disclosing a mental health issue. Ms. Michaud argues that this distinction supports her request for a higher award.
[63] To some extent, I find it relevant that Ms. Michaud’s allegations, including with respect to the loss of her employment are different from Benton or Senyk where there is no ambiguity that the employees were terminated from their employment . Here, Ms. Michaud alleges that the Ministry’s failure to accommodate resulted in her being forced on to a long-term, unpaid leave of absence, until she had no option but to eventually quit and take a lower paying job. I say this not to diminish the alleged impacts but to differentiate between the situations.
[64] I acknowledge that Ms. Michaud alleges significant impacts including financial, physical, mental, and psychological. At the same time, she has not persuaded me that the Tribunal is likely to order double the amount awarded in Benton where the Tribunal found the complainant to be particularly vulnerable and the impact of the discrimination to be severe and dramatic.
[65] I agree with the Ministry that it is relevant to look at cases where the Tribunal has found a breach of the Code based on an employer’s failure to reasonably accommodate an employee with a disability. For this reason, I agree that RMC Ready Mix is helpful, particularly where it involved a disagreement about medical testing and the employer’s perception that an employee’s refusal to undergo testing equated to a refusal to participate in the accommodation process resulting in termination of his employment. In that case, the Tribunal awarded $20,000 noting the complainant’s evidence about being devastated by the loss of his employment, including feelings of hopelessness, having his world turned upside down, and taking years to move forward after the termination.
[66] Similarly, I agree that Chen is of some help, as it concerned the withdrawal of an accommodation in the workplace without explanation. In that case, the Tribunal did not award the full amount sought by the complainant and instead struck a balance between the considerable impact of the discriminatory conduct and the earlier support offered by the employer. As noted above, the Tribunal ordered $10,000 in injury to dignity damages in Chen .
[67] In the circumstances of this case and based on the materials before me, I find that $30,000 is within the reasonable range the Tribunal might award.
[68] Next, I turn to the wage loss part of the monetary offer.
2. Lost wages
[69] Section 37(2)(d)(ii) of the Code gives the Tribunal discretion to award compensation to a successful complainant for all, or part, of any wages or salary lost because of a contravention.
[70] The purpose of such an award is to restore a complainant, to the extent possible, to the position that they would have been in had the discrimination not occurred: Gichuru v. The Law Society of British Columbia (No. 9) , 2011 BCHRT 185 [ Gichuru No. 9 ] at para. 300. The Tribunal also considers whether a complainant has taken reasonable steps to mitigate or reduce their losses. The Tribunal may reduce a wage loss award if a complainant did not reasonably mitigate their wage loss or if other wage loss uncertainties need to be accounted for: LaFleche v. NLFD Auto dba Prince George Ford (No. 2) , 2022 BCHRT 88 at para. 87. The burden of proving a complainant has failed to mitigate their loss rests on the respondent: Gichuru No. 9 at para. 370.
[71] The offer includes an amount for lost wages that the Ministry says is the equivalent of approximately seven months using current salary figures ($56,275.50). The parties dispute whether this amount falls within the reasonable range that the Tribunal might award in this case.
[72] For the following reasons, I find the amount for lost wages in the offer falls within the reasonable range of what the Tribunal might order if Ms. Michaud succeeds at the hearing, considering the likelihood of contingencies and uncertainties.
[73] I begin with Ms. Michaud’s claim for lost wages. Her statement of remedy filed in July 2023 sets out an amount of more than $430,000 for lost wages. She did not provide details regarding her calculations. To the best of my understanding, this amount represents lost earnings from 2018 to 2021 less pension income, and the differential in earnings from 2021 when she became reemployed at a lower rate of pay. I also observe that, in her response to the application, Ms. Michaud states that she continues to experience losses and that they will continue until her death. I understand her to mean that her current earning capacity will never catch up to what she would have earned if she had remained employed by the Ministry.
[74] The Ministry provided Ms. Michaud a covering letter that set out the rationale for the wage loss figure when it made the settlement offer. In short, the Ministry says that seven months represents the equivalent of what an employee with her length of service would have received as a without cause severance payment, and accounts for the reality that Ms. Michaud could have mitigated her losses but failed to do so.
[75] The Ministry provides the following examples of what it says amounts to a failure to mitigate:
a. She could have accepted the Ministry’s proposal to work three days a week with two days at home and one in the office, with hours from 11 am to 6 pm while further medical information was sought.
b. She could have applied for other employment.
c. She could have applied for long-term disability benefits.
[76] In response to the wage loss part of the offer, Ms. Michaud acknowledges that she would not necessarily be awarded the entire amount of wage loss that she seeks. However, she asserts that the amount offered is unreasonable and does not come close to putting her in the position she would have been in had the discrimination not occurred. In addition to the lost wages, Ms. Michaud points to a reduction in her pension income. As set out above, Ms. Michaud included an amount for the pension reduction in her statement of remedy. She seeks over $230,000 representing 30 years of a reduced pension. She did not provide further details or documents to explain her calculations, or why she believes her circumstances warrant the future losses. Lastly, Ms. Michaud objects to the Ministry’s argument that she could have mitigated her losses by applying for long-term disability benefits [ LTD ].
[77] In response to the failure to mitigate arguments advanced by the Ministry, Ms. Michaud only responded to one: the suggestion that she could have applied for LTD. Ms. Michaud strongly disputes that she ought to have applied for LTD and says that she did not do so because although her disability affected her work, she was not so severely disabled that she could not work at all.
[78] I pause to note that Ms. Michaud did not address the argument that she could have returned to work part-time while the accommodation process was underway or that she could have applied for other employment. She also did not address the suggestion in the Ministry’s offer letter that the Tribunal has no basis to assume that she was able to work in her former capacity as of 2018 resulting in an award for full wages between 2018 and 2021.
[79] I find it relevant that the Ministry squarely raised the issue of mitigation in the application, and Ms. Michaud only addressed the LTD aspect. I agree with the Ministry that the other arguments about mitigation are relevant to my assessment. This is because the Tribunal may reduce a wage loss award if a complainant has not reasonably mitigated their loss: Benton at para. 145.
[80] I also find it relevant that the Ministry has identified the kinds of uncertainties that can impact how much wage loss the Tribunal is likely to award, and Ms. Michaud has not addressed them. It is well established that the Tribunal can reduce a wage loss award to account for contingencies and uncertainties in the evidence. Below I provide several examples.
[81] In Corona v. BOLD Event Creative (No. 3) , 2023 BCHRT 247, the Tribunal reduced the amount of wage loss claimed by the Complainant based on uncertainties in the evidence about the complainant’s ability to work, and job search efforts.
[82] In Francis v. BC Ministry of Justice (No. 5) , 2021 BCHRT 16 [ Francis ], the Tribunal reduced a wage loss award based on contingencies including intervening events and events occurring after the contraventions of the Code .
[83] Similarly, in Benton , the Tribunal determined that some deduction in the wage loss claim was appropriate to account for the contingency that, but for the discrimination, the complainant may not have been employed for the entire period of claimed wage loss.
[84] I begin my analysis in this case with Ms. Michaud’s assertion that, but for the alleged flaws in the accommodation process, she would have continued to work full-time and at full capacity justifying full wages from 2018 to 2021.
[85] As a general rule, complainants are not entitled to an order for lost wages for any period during which they are medically incapable of working, on the principle that if they were medically incapable of working then, even absent the discrimination, they would not have been able to earn a salary: Senyk at para. 434. I agree with the Ministry that, based on the information before the Tribunal to date, there is no guarantee the Tribunal would find that Ms. Michaud would have continued to work in the same capacity with the same earnings had the Ministry granted her the accommodated schedule that she sought.
[86] As set out in Michaud No. 1 , Ms. Michaud’s physician stated in August 2016 that the symptoms of her medical condition are unpredictable, and she may require more sick time than average. The decision also confirms that in 2017, Ms. Michaud had taken medical leave for reasons related to her disability. In addition, Ms. Michaud notes in her statement of remedy that she began a new career “as her health improved.” This latter submission suggests Ms. Michaud was only able to start her new career at a certain point in time, when her health permitted returning to work.
[87] I also observe that Ms. Michaud had the opportunity to address her ability to work full-time and in the same capacity between 2018 and 2021 but did not do so. This means that I do not have any information from her regarding the state of her health and ability to work for over three years, including what kind of work she was able to perform and under what conditions, during which periods.
[88] In all the circumstances, I find it likely that the Tribunal would engage in some discounting of Ms. Michaud’s wage loss claim based on the uncertainties related to her ability to work.
[89] Next, I consider the argument that Ms. Michaud could have mitigated her losses by applying for other employment.
[90] The duty to mitigate requires a person to take reasonable steps to avoid or reduce their financial losses, including by looking for other comparable work.
[91] Ms. Michaud became re-employed in 2021; however, she did not provide any information in her response to the application regarding her job search efforts prior to securing that role. The only information I was able to locate is found in her statement of remedy, where she says:
“Denied an accurate work reference & suspended without pay or benefits while disabled, I could not find work until 2021.”
“I began a new career as my health improved, but income is low & will be for several years.”
[92] In this situation, I have no specific information about Ms. Michaud’s search for alternate comparable employment, including how many, where, and what kinds of jobs she applied for unsuccessfully, and if/how the alleged discrimination and/or her health condition impacted her efforts to find a new job. While Ms. Michaud states that the lack of a reference from the Ministry was an impediment to finding a new job, she did not provide any further information or details to understand that allegation. I also do not know when in 2021 she began her new position or any of the terms of that new employment. According to the Ministry, Ms. Michaud resigned from her employment with the Ministry on May 31, 2021.
[93] In circumstances where there is uncertainty regarding Ms. Michaud’s ability to work and efforts to find alternate employment, it is reasonable to conclude that some discounting would apply in this case.
[94] In reaching this conclusion, I also considered the parties arguments about LTD benefits.
[95] As I understand the arguments about LTD, they relate to the period from January 2018 onward, when Ms. Michaud’s entitlement to benefits under the Short-Term Illness and Injury Plan [ STIIP ] ended.
[96] The Ministry argues that Ms. Michaud acted unreasonably when she refused to apply for LTD despite her union repeatedly encouraging her to do so before STIIP ran out. The Ministry asserts that Ms. Michaud may very well have been entitled to LTD benefits given her own concerns about her health, her agreement that her health was impacting her work performance, and her recognition that her health was at significant risk. The Ministry argues that LTD benefits could have mitigated her damages. And, if she had been denied LTD after applying, the next steps in the accommodation process could have taken place.
[97] Ms. Michaud’s argument on this point is brief. Ms. Michaud agrees that the Ministry and the union encouraged her to apply for LTD. Her position; however, is that it was inappropriate to pressure her to apply for LTD when she was able to work with an accommodation.
[98] When I consider the purpose of mitigation, I find it likely the Tribunal would deduct some amount for the failure to mitigate by applying for LTD in this case. That is because the duty to mitigate requires a person to take reasonable steps to avoid or reduce their financial losses. The basic idea is simple: a person cannot recover losses that were within their power to avoid: see generally discussion in Evans v. Teamsters Local Union No. 31, 2008 SCC 20 at paras. 97-100 (per Abella J, dissenting but not on this point).
[99] In summary, I find that the Tribunal is likely deduct some amount based on the uncertainty associated with Ms. Michaud’s ability to work during the claimed period of wage loss, and for a failure to mitigate. The Ministry put these issues to Ms. Michaud directly in the application and she responded only to one small aspect. Where the areas of uncertainty are significant, including with respect to her ability to work, job search records, and decision not to apply for LTD, it is logical to infer that the impacts on her claim could also be significant.
[100] My conclusion is bolstered Ms. Michaud’s failure to address the Ministry’s argument that she also could have reduced her losses by returning to work part-time while the accommodation process was ongoing.
[101] Next, I consider Ms. Michaud’s arguments about the arbitrariness of the amount. The offer here represents seven months of salary at the current rate. I agree with Ms. Michaud that, on its own, the Ministry’s reliance on “reasonable notice” for its calculation is not the correct framework. That is because it is well established that the calculation of a wage loss award for discrimination is based on different principles than a failure to provide reasonable notice of termination of employment. At the same time, I recognize that this is not the only rationale relied on by the Ministry. As set out in detail above, the Ministry points to a number of factors that it says would impact the Tribunal’s assessment of wage loss if Ms. Michaud succeeds in proving a breach of the Code .
[102] In summary, I find the amount for lost wages to be within the reasonable range of what the Tribunal might award, based on the following factors.
a. Ms. Michaud disagrees with the Ministry’s position, she had the opportunity to provide additional information, but did not do so in regard to several of the Ministry’s arguments.
b. Wage loss awards are discretionary and contemplate compensation in full or in part.
c. The amount does not need to mirror exactly what the Tribunal might award.
d. Claims for wage loss can be reduced based on contingencies and uncertainties; including with respect to mitigation. I have identified several significant areas of uncertainty in this case that impact the assessment of wage loss.
3. Interest, taxes, and pension
[103] Ms. Michaud highlights that the offer does not address her request for interest in the statement of remedy. She also makes a new request that her lost wages be paid in such a way as to minimize her tax losses.
[104] In response, the Ministry argues that requiring the complainant to be responsible for taxes is an uncontroversial, standard, and reasonable term of settlement. With respect to interest, the Ministry relies on the principle that the offer does not need to mirror what the complainant asks for or everything the Tribunal could order. The Ministry makes a similar argument with respect to the alleged pension loss mentioned earlier in this decision.
[105] Ms. Michaud’s argument about interest is that she requested this in her statement of remedy and the offer does not address it. She did not provide any other details, including an amount. With respect to a remedy that minimizes her taxes, Ms. Michaud says that she was not aware this was a remedy she could have sought until she had done further research. Ms. Michaud did not provide further details or any authority for this kind of remedy.
[106] Regarding interest and taxes, I agree with the Ministry that the failure to include every possible remedy does not make the offer unreasonable.
[107] I next considered Ms. Michaud’s argument about her claim for pension-related losses. For several reasons, she has not persuaded me that the failure to address this tip the scales of reasonableness. A large part of the claimed pension loss is future-based, and the Tribunal has been very reluctant to make awards for future losses except in the clearest of cases: Francis at para. 124. I also return to the principle that the offer does not need to be identical to what the Tribunal would order after a hearing, but rather needs to be reasonable in the circumstances. I find the decision in Grant v. FortisBC and others , 2009 BCHRT 336, helpful in this regard. In that case, the Tribunal found an offer of compensation reasonable, notwithstanding the fact it did not include all the lost benefits.
[108] On this basis, Ms. Michaud has not persuaded me that the absence of tax, interest, or pension amounts makes the compensatory offer unreasonable.
Summary
[109] Looking at the entirety of offer, I am satisfied that it fully addresses the allegations and available remedies, adequately addresses the alleged violations of the Code , and offers an amount of monetary compensation that is within the reasonable range of what the Tribunal might order. In short, I find the offer reasonable.
[110] Even if a settlement offer is reasonable, the Tribunal may consider whether there are factors that weigh in favour of proceeding with the complaint, based on the purposes set out in s. 3 of the Code . I turn to that question next.
B. Step 2 – would allowing the complaint to proceed further the purposes of the Code ?
[111] The assessment of whether proceeding with a complaint will further the purposes of the Code, involves more than an assessment of an individual complaint, but encompasses broader public policy issues, such as the efficiency and responsiveness of the human rights system, and the expense and time involved in processing a complaint to a hearing: Dar Santos at para 59.
[112] The Ministry argues that it would not be an efficient use of the Tribunal’s limited resources to proceed with the scheduled two-week hearing where it has put forward what it considers a generous monetary offer and significant non-monetary terms.
[113] Ms. Michaud argues that the complaint raises a novel issue that will benefit the public if it were decided by the Tribunal. Specifically, she argues that it is an opportunity for the Tribunal to provide the public with guidance on the rights and obligations associated with medical examinations by physicians chosen and paid for by an employer. In support of her position, Ms. Michaud points to the cases of Morris v. BC Public Service Agency , 2018 BCHRT 222 [ Morris ] and De Champlain v. Ministry of Health , 2018 BCHRT 252 [ De Champlain ], arguing that there is a tension between these cases and the public would benefit from clarification by the Tribunal.
[114] I do not agree with Ms. Michaud that those cases create a divergence in the case law where hearing and deciding her complaint will offer clarification. In my view, both Morris and De Champlain support the well-established principle that accommodation is an individualized process, and whether an employer has discharged their duty to accommodate short of undue hardship is a fact specific inquiry and will vary with the circumstances of each case: Central Okanagan School District No. 23 v. Renaud , 1992 81 (SCC), [1992] 2 S.C.R. 970 and McGill University Health Centre (Montreal general Hospital) v. Syndicat des employées de l’Hôpital général de Montréal , 2007 SCC 4 at para. 22.
[115] I begin with Morris . In that case, one of the allegations was that a requirement to attend an independent medical examination was discrimination based on disability. Ultimately, the Tribunal dismissed the complaint. In that case, the employer dropped its demand, and the employee did not attend the examination. In reaching its conclusion on this allegation, the Tribunal undertook a fact-specific inquiry that considered whether there was evidence to support the complaint’s assertion that attending a medical examination would have a detrimental impact on him, and whether the request was connected to his disability.
[116] Next, I turn to De Champlain which has a very different factual background. In that case, the complainant alleged that it was discriminatory for his employer to require medical evidence of his fitness for work before allowing him to return to the workplace. The issue in that case was whether it was reasonable and necessary to require medical evidence of his fitness to return. That case does not concern an employer’s requirement to attend an independent medical examination or a dispute about the sufficiency of medical evidence. In these circumstances, I do not agree that there is a tension with the decision in Morris .
[117] In summary, I do not find anything in those cases that supports allowing this complaint to proceed in the face of a reasonable settlement offer.
[118] I also observe that the Tribunal routinely hears and decides cases that concern disability accommodation in the workplace, and I am not persuaded that Ms. Michaud’s allegations are sufficiently novel to outweigh the strong public interest in parties resolving their disputes and not using scarce Tribunal resources by proceeding with a hearing after a reasonable settlement offer has been rejected.
[119] Lastly, I find that policy rationale bolsters my conclusion under this step. In this case, there is something to be gained by not having the complaint proceed to a hearing where there has been a means of redress: Code , s. 3(e). Considerable resources will be required for a two-week hearing, and the Tribunal encourages respondents to respond appropriately to human rights complaints – even if it is late in the day: Heitner at para. 35. It is also likely that the publication of this decision will support the preventative and educational purposes of the Code .
IV CONCLUSION
[120] The Ministry’s settlement offer is reasonable. It would not further the purposes of the Code to allow the complaint to proceed where Ms. Michaud has rejected the offer.
[121] I grant the application and dismiss the complaint in its entirety under s. 27(1)(d)(ii) of the Code .
[122] As set out in the Ministry’s materials, Ms. Michaud has two weeks following the date of this decision to accept the offer.
Kathleen Smith
Tribunal Member