2024 BCHRT 343 - BC Human Rights Tribunal

[1] This decision relates to a complaint filed by Heather Andruski alleging that Islands Café Ltd., Jalene Harding and Robb Harding, who I refer to together as the Respondents , discriminated against her contrary to s. 8 of the Human Rights Code regarding a service that is customarily available to the public. Ms. Andruski alleges to have disabilities, known as asthma and multiple chemical sensitivity [ MCS ]. She alleges that, on July 2, 2020, a Server at the Café sprayed bleach at and around a table she was sitting at, but did not spray it on any other tables at the Café. According to Ms. Andruski, she told the Server to stop spraying the bleach and that it was making her sick. The Server refused to stop, and instead told her if she didn’t like it, she could go outside. Ms. Andruski says she experienced adverse physical reactions because of the Server’s spraying of bleach near her, and that those reactions relate to her alleged disabilities. Ms. Andruski further alleges that she asked the Server and another staff member for the owner’s contact information. In response, they gave her a business card. When she called the number on the card, she reached the Café itself, and they laughed at her. She then left the Café and one of them told her to leave and never come back.

[2] The Respondents deny Ms. Andruski’s allegations against them and that she has the alleged disabilities she claims to have. They say, on July 2, 2020, the COVID-19 situation in B.C. was increasingly bad. Ms. Andruski attended at the Café. She never advised the Server or any other staff member at the Café of her having a disability. While in the Café, she started to openly cough towards another customer who was sitting near her. Café staff asked her to wear a mask, and she refused to do so. Café staff also suggested to her that she may sit at one of the outside tables. The Respondents say that Ms. Andruski refused to leave the Café and began to film other customers. This is when Café staff asked her to leave the Café, or they would have the police remove her from it. She eventually left the Café.

[3] On March 21 and 22 and May 3, 2024, I heard the parties’ evidence by way of Microsoft Teams videoconferencing. Following the evidentiary part of the hearing, the parties made brief written closing submissions.

[4] Ms. Andruski appeared as the only witness on her own behalf. Robb Harding and Jessica Van Polen each appeared as witnesses for the Respondents. At the time of Ms. Andruski’s visit to the Café, Ms. Van Polen was one of the Café’s managers. She observed Ms. Andruski’s visit to the Café and had some direct interactions with her. The Server who sprayed bleach near Ms. Andruski did not attend as a witness for either party.

[5] While I have considered all the evidence and submissions put forward by the parties, I refer only to that evidence and those parts of their submissions that were necessary for me to make this decision.

II PROVING DISCRIMINATION UNDER SECTION 8 OF THE CODE

[6] Section 8 of the Code sets out that:

8 (1) A person must not, without a bona fide and reasonable justification,

(b) discriminate against a person … regarding any … service … customarily available to the public

because of the … physical disability … of that person…

[7] For Ms. Andruski to be successful in proving discrimination under s. 8 of the Code , she must convince the Tribunal that more likely than not:

a. The Café provides a service customarily available to the public;

b. During the date on which the alleged discrimination occurred, she was a person with a physical disability;

c. She experienced an adverse impact regarding the Respondents’ delivery of services to her; and

d. Her physical disability was a factor in the adverse impact she experienced: Code at s. 8; Moore v. BC (Education), 2012 SCC 61 at para 33.

[8] If Ms. Andruski can prove those matters set out above, in paragraph 7, she will have proven the complainant’s case and I will find that discrimination occurred, unless the Respondents prove that they had a bona fide and reasonable justification for their conduct. If the Respondents prove that they had a bona fide and reasonable justification for their conduct, then I will find that no discrimination occurred: British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights) , [1996] 3 S.C.R. 868 at para 20.

III ISSUES

[9] It is undisputed that Ms. and Mr. Harding are the owners of the Café, and that the services of the Café include the sale of food and drinks to the public. Based on these undisputed facts, I am satisfied that the Café provides a food and drink service that is customarily available to the public: See Gould v. Yukon Order of Pioneers , [1996] 1 S.C.R. 571 at para. 58; Marine Drive Golf Club v. Buntain , [2005] B.C.J. No. 2181 at para 45.

[10] Ms. Andruski alleges that she has asthma and MCS, which she relies on as her physical disabilities. As I understand it, the Respondents disagree. I must determine whether Ms. Andruski has proven that she has these conditions and that they are physical disabilities under the Code .

[11] It is undisputed that a Server and Ms. Van Polen worked at the Café on July 2, 2020, where they both interacted with Ms. Andruski. However, the parties disagree about what those interactions involved. I must determine what happened. To do so, I must make findings of credibility regarding Ms. Andruski and Ms. Van Polen’s conflicting evidence.

[12] Credibility has to do with the veracity or truthfulness of a witness. When assessing whether Ms. Andruski and Ms. Van Polen’s testimonies are credible, I start from the presumption that they are each telling the truth: Hardychuk v. Johnstone , 2012 BCSC 1359 at para. 10. The factors I then consider to determine whether they told the truth include: the presence of any potential motives or biases, whether their evidence is internally consistent, whether independent supporting or contradictory evidence exists either in the form of a corroborating witness’s evidence, documentary or other evidence, whether their testimony seems unreasonable, impossible, or unlikely, and how it fits into the general picture revealed by all the evidence: R. v. J.M. , 2021 BCCA 263 at para. 53 ; Pardy v. Earle , [2011] B.C.H.R.T. No. 101 at para. 12; Van Hartevelt v. Grewal , 2012 BCSC 658 at paras. 30–35 ; Bradshaw v. Stenner , 2010 BCSC 1398 at paras. 185–87 .

[13] The parties also disagree about whether Ms. Andruski experienced an adverse impact because of the Respondents’ conduct toward her. As such, I must determine whether Ms. Andruski has proven this.

[14] Last, the parties disagree about whether Ms. Andruski’s alleged physical disabilities were a factor in any adverse impacts that she experienced. I must determine whether there is any connection between disabilities that Ms. Andruski proves she has and any adverse impact that she proves she experienced because of the Respondents’ conduct toward her.

IV DECISION AND ORDER TO DISMISS THE COMPLAINT

[15] The Respondents did not discriminate against Ms. Andruski contrary to s. 8 of the Code . Ms. Andruski has proven part of the complainant’s case, but not other parts of it. For those parts of the complainant’s case that Ms. Andruski has proven, the Respondents have also proven that they had a bona fide and reasonable justification for their conduct. As such, under s. 37(1) of the Code , I dismiss the complaint.

[16] Next, I explain my reasons for this decision. I start with what happened at the Café on July 2, 2020.

V ANALYSIS

A. What happened at the Café on July 2, 2020?

1. Ms. Andruski’s evidence

[17] Ms. Andruski testified that, at approximately 11:00 a.m. on July 2, 2020, she entered the Café, put her computer and other things on a table, ordered some food and a drink, and then sat down at the table. After approximately one hour, the Server sprayed bleach on the table she was sitting at from approximately one foot away and wiped around her belongings with a rag. Ms. Andruski said she started to experience an asthma attack. She was coughing horrifically and could not breathe. She said she told the Server she could not breathe, to stop, and that she has asthma. According to Ms. Andruski, the Server responded by telling her that “this is Covid, and you are going to find this everywhere.” Ms. Andruski said she told the Server a second time to stop. In response, the Server said, “if you don’t like it, go outside, put a mask on or go outside.” Ms. Andruski said the Server then went behind where she was sitting, and Ms. Andruski heard the noise of the spray bottle again, but she did not see where the Server had sprayed.

[18] According to Ms. Andruski, the Server then walked behind the counter where there was another staff member, who the parties agree was Ms. Van Polen. Ms. Andruski asked them if they thought “this was funny.” The Server said they were not laughing at her but at the ridiculousness of the whole thing. Ms. Andruski said she then asked to talk to a manager. Ms. Van Polen identified herself as the manager. Ms. Andruski then asked to talk to the owner. They gave her a card, and she tried to call the number on it. The Café phone rang, and the Server and Ms. Van Polen laughed. Next, Ms. Andruski said she sent an email to the address on the card about what had occurred.

[19] In support of Ms. Andruski’s testimony, she provided the Tribunal with a copy of an email she had sent to the address on the card she received from Ms. Van Polen. At 1:08 p.m. on July 2, 2020, she emailed that address and said that one of the staff members at the Café, who I have been referring to in this decision as the Server, walked up to a table she had been sitting alone at for two hours and started to spray bleach on it. She said the Server gave her no warning that she was about to spray it. She said she asked the Server to stop, and the Server responded to her that she must sanitize, or they would be closed down, and that Ms. Andruski will have to deal with the same wherever she goes. She also stated in the email that the Server told her to go outside and to put on a mask. She said the Server and “another one,” who I understand to be Ms. Van Polen, were laughing. She said she asked them if they thought this was funny. The Server said she wasn’t laughing at Ms. Andruski, just at how ridiculous this was.

[20] Ms. Andruski testified that after she sent this email, she experienced confusion and anxiety, she was coughing, and she could no longer use her voice. So, she collected her belongings and left the Café.

[21] Ms. Andruski testified that after she left the Café, she drove to the hospital. She told the doctor she was light-headed, dizzy, nauseous, her eyes and lips were burning, she was confused, in panic and very ill. She said the doctor examined her, including performing a lung exam. The doctor then provided her two medications, one to help with recovery from her asthma symptoms and the other for reducing inflammation. Ms. Andruski provided the Tribunal with a July 2, 2020 clinical record from the hospital in support of this part of her testimony. The clinical record states that Ms. Andruski arrived at the hospital at 1:44 p.m., and the reason for her visit to the hospital was an exposure to bleach, which occurred at 1:30 p.m. at a restaurant. It further states that her chief complaint was regarding her eye and chemical exposure. The doctor’s handwritten notes on the clinical record are not legible to me.

[22] Ms. Andruski testified that, on July 3, 2020, her symptoms worsened so she went back to the hospital. She said a doctor examined and x-rayed her lungs and told her she has hyperinflation in her lungs. She said her voice was “affected,” and her esophagus was swollen. In support of this part of her testimony, she provided the Tribunal with a July 3, 2020 clinical record from the hospital that states the reason for her visit was “sob-post chemical exposure,” and that her chief complaint was “resp. distress, mild/mode,” which I treat as meaning mild to moderate respiratory distress after a recent chemical exposure. The doctor’s handwritten notes on the clinical record state that the patient has asthma, that bleach was sprayed in front of her the day before, and that she reacted with a cough and dry throat. The doctor’s notes also state that the patient has difficulty swallowing. The remainder of the notes are not legible to me. Ms. Andruski testified that, after this hospital visit, it took approximately a week for her symptoms to subside.

[23] During cross-examination, the Respondents asked Ms. Andruski why she did not tell the Café’s staff about her alleged disability before “the incident happened.” Ms. Andruski said that she had no need to.

2. The Respondents’ evidence – Mr. Harding’s testimony

[24] Mr. Harding testified that on March 24, 2020, a Fraser Health representative sent an email to him with guidelines for the Café to follow if it was to remain open amid the Covid-19 pandemic. Mr. Harding understood he was responsible for ensuring the Café has a covid safety plan, and he had to incorporate Fraser Health’s guidelines into it. Mr. Harding provided a copy of the email guidelines he received from the Fraser Health Authority, which included socially distancing customers and disinfecting surfaces. The guidelines stated that if the Café were to use bleach as a disinfectant it should do so with 20 milliliters of bleach per 980 millilitres of water.

[25] Mr. Harding further testified that the Café had a policy for staff to clean every thirty minutes with a bleach and water mixture. He also said the Café has a policy for staff to ask customers to leave if the staff member is feeling unsafe, threatened or harassed. If the customer refuses to leave, the staff member must call the non-emergency police.

[26] Mr. Harding testified that he received Ms. Andruski’s July 2, 2020 email. However, he did not receive it until after he had seen a negative Google review she made about the Café, in which she said she was going to take legal action. So, he did not respond to it because when a person threatens legal action against the Café, his policy is to cut off all communications and leave it up to his legal counsel to deal with.

[27] Last, Mr. Harding testified that Facebook chat messages that Ms. Andruski gave the Tribunal are from a Facebook chat group where managers across his different café locations can talk to one another. He said the messages were between Ms. Van Polen and his wife, Ms. Harding, which he can tell because of the icons attached to the messages. Those messages set out the following discussion:

Ms. Van Polen: Hey, just so you know there’s probably an email coming from a lady here today. She has been coughing since she walked in and is now claiming that it’s because of the bleach. [The Server] kindly told her she could wear a mask or sit outside as we have to bleach for covid reasons, she then asked to speak to me and I told her we have to disinfect every 30 min with the bleach water and she said [the Server] sprayed her in the face and I was watching [the Server] and she sprayed it on the cloth first as she has a computer. She is now just sitting at the café coughing constantly and I’m not sure if I should ask her to leave as she’s coughing so much it looks bad.

Ms. Harding: oh my gosh. K one sec.

Ms. Van Polen: She literally told me no and for me to go outside.

[28] I have now provided an overview of Mr. Harding’s testimony. Next, I turn to Ms. Van Polen’s testimony.

3. The Respondents’ evidence – Ms. Van Polen’s testimony

[29] Ms. Van Polen testified that she was working at the Café on the day Ms. Andruski came in. At the time, the Café was asking people to distance themselves from one another to avoid the transmission of Covid-19, and she understood that she had to spray the tables in the Café with a bleach mixture every 15 minutes. She said that as a matter of practice, in situations where person has a computer at their table, Café staff would spray into the cloth first and then wipe the table.

[30] Ms. Van Polen testified that shortly after Ms. Andruski arrived at the Café, she complained to Ms. Van Polen that someone was sitting to her side at one of the tables. She asked Ms. Van Polen to get them to move. Ms. Van Polen told Ms. Andruski that she could not do that for her. Next, she said that Ms. Andruski began coughing out loud everywhere, while not covering her mouth. She could not recall how long this continued for. However, she said that people were looking around the room at one another while it was happening.

[31] Ms. Van Polen further testified that, while Ms. Andruski was in the Café, the Server went around the Café and cleaned the tables. She recalled watching the Server spray into a cloth and wipe down Ms. Andruski’s table. She observed Ms. Andruski and the Server talking to one another. Then, the Server walked over to Ms. Van Polen and told her that Ms. Andruski wants to talk to a manger. Ms. Van Polen spoke to Ms. Andruski. She could not recall their whole conversation. However, she said that Ms. Andruski raised concerns about the Server spraying her with bleach. She said she told Ms. Andruski that it is a requirement for the Server to clean with the bleach mixture, and that she can move, put a mask on, or sit at the tables outside because it would be outside and there would be no bleach out there. Ms. Van Polen said that Ms. Andruski did not leave the Café until approximately one hour after they spoke.

[32] Last, Ms. Van Polen testified that during Ms. Andruski’s remaining hour in the Café she remembers that Ms. Andruski was coughing a lot. She said that she and the Server spoke to Ms. Andruski several times during that period about her coughing, asking her to put on a mask or go outside. She said she feared Ms. Andruski’s coughing because of the Covid-19 pandemic. She said some customers left right away, and others kept looking around and then looking at her and the Server. During this period, Ms. Van Polen said she sent a message in a managers chat system to explain was happening. I treat this as her evidence that this was when she sent the Facebook chat message in the manager’s chat group. She said she and the Server also completed an incident report about what had happened. The Server told her what happened during her interactions with Ms. Andruski and Ms. Van Polen wrote it down along with details of her own interactions with Ms. Andruski.

[33] In support of Ms. Van Polen’s testimony, the Respondents provided a copy of the incident report that Ms. Van Polen and the Server had completed. The incident report sets out the following events:

a. Around 12:00 p.m. Ms. Andruski walked into the Café, caused a commotion about another woman sitting too close to her, and openly coughed on the other woman.

b. Half an hour later, when it was time to sanitize, Ms. Andruski claimed the bleach water was too harsh on her throat and that she was breathing it in. As an alternative, the Server sprayed it into the cloth and continued wiping the table. Ms. Andruski complained again and asked to speak to a manager. She told MS. Van Polen that the Server sprayed her in the face with the bleach solution. She then continued to cough openly saying she cannot breathe. It was suggested she could sit outside. She told Ms. Van Polen, ‘no go outside and take that one with you’ in reference to the Server.

c. Ms. Andruski refused to wear a mask or sit outside. She continued coughing, which caused a deterrent in the customers (coughing on multiple people now) so two managers on shift asked her to leave and she refused.

d. Throughout this time Ms. Van Polen and the Server were contacting the store owners. Ms. Van Polen spoke to the owners and then told Ms. Andruski that due to BC WorkSafe guidelines she cannot enter the building if she has symptoms (coughing etc.), that she needs to wear a mask or leave.

e. Ms. Andruski refused to do so, and told Ms. Van Polen “that’s bulls**t.” She refused to leave and told Ms. Van Polen and the Server that its their fault she cannot breath.

f. Other customers were also involved and asked Ms. Andruski to leave. When this happened, Ms. Andruski decided to record the whole Café, which upset the customers.

g. Ms. Andruski said she is taking her video to the media and telling them how “sh**ty” the Café and its regular customers are.

h. At 1:15, Ms. Andruski decided she is ready to head out after causing nothing but havoc for just over an hour.

[34] I have accepted the incident report as both necessary and appropriate evidence in the form of a business record that sets out both Ms. Van Polen and the Server’s statements of fact about what happened: Code at s. 27.2; Evidence Act (BC) at s. 42. Ms. Van Polen testified that she and the Server created the incident report, as part of the usual and ordinary course of the Café’s business practices, to record what happened. Ms. Van Polen explained that whenever an incident occurs at the Café, the staff involved must complete an incident report. Ms. Van Polen wrote the incident report on the same day as the events that took place, which I treat as being contemporaneous with the events. She and the Server had personal and direct knowledge of what she recorded in the incident report as they were directly involved in the incident at issue. She and the Server also sat down together to write it. Everything that is in the incident report reflects either Ms. Van Polen or the Server’s immediate recollections of the events that occurred.

[35] During the Respondents’ cross-examination of Ms. Andruski, they asked her whether she was coughing during the hour and a half she was in the Café. She responded, “possibly.” The Respondents asked Ms. Andruski why she refused to wear a mask when they asked her to do so. She responded that she had a mask on her, and that she was eating and drinking. The Respondents also asked Ms. Andruski whether it is possible that the Café’s staff explained to her that they must clean with the bleach solution to stay open as a business. Ms. Andruski responded, “absolutely not, there was no explaining.”

[36] In Ms. Andruski’s reply evidence, she denied observing the Server sanitize other tables, and said that she had been sitting there for an hour and a half before the Server came and sprayed her table. She also denied that the Server explained to her that the Café has sanitizing protocols. She said the Server simply told her if she didn’t like it to get out.

4. My findings

[37] Next, I set out my findings about what happened. Where I do not say that I accept one witnesses’ evidence over the evidence of another witness, I base my findings on their evidence being consistent, uncontradicted, and unchallenged by the other party on the matter. I otherwise explain why I accept one witness’s evidence over the other’s.

[38] First, for the most part regarding the timelines of when things happened, I accept Ms. Van Polen’s evidence because Ms. Andruski has been inconsistent with her evidence about the timing of when things happened. Her evidence about timelines is also inconsistent with what she wrote in her email to the Café owners. So, I do not find her evidence about the timing of events to be reliable.

[39] Ms. Andruski arrived at the Café some time around 12:00 p.m. on July 2, 2020. Shortly after she arrived at the Café, she complained to Ms. Van Polen about someone who was sitting next to her and asked Ms. Van Polen to get them to move. When Ms. Van Polen told her she could not do that, Ms. Andruski started to cough out loud everywhere, while not covering her mouth.

[40] During Ms. Andruski’s time at the Café, the Server used a bleach mixture to clean Ms. Andruski’s table. Both parties provided evidence about whether the Server sprayed that bleach mixture into a cloth or directly on to the table, whether there was a fan above Ms. Andruski at the time, and whether the Server only sprayed Ms. Andruski’s table with bleach, or whether she also cleaned other tables at the same time. I do not find it necessary to resolve their conflicting evidence on these points. In any event, immediately after the Server sprayed the bleach mixture to clean Ms. Andruski’s table, Ms. Andruski was coughing. Ms. Andruski also began to experience difficulties breathing.

[41] Ms. Andruski raised an issue with the Server about spraying the bleach near her. She told the Server that she has asthma and cannot breath, and she asked the Server to stop using the bleach spray. The Server told Ms. Andruski to put on a mask or go sit at an outdoor table. Ms. Andruski refused to do either. Both parties provided evidence about whether the Server also told Ms. Andruski that she will experience the same anywhere she goes. However, I do not find it necessary to resolve their conflicting evidence on that point.

[42] I do not accept Ms. Andruski’s evidence that the Server then went behind her and sprayed bleach again. Instead, I accept Ms. Van Polen’s evidence that immediately after Ms. Andruski finished talking to the Server, the Server walked over to where Ms. Van Polen was standing behind the counter. Ms. Van Polen’s evidence on this point is consistent with what she and the Server wrote into the incident report immediately after the events occurred. Ms. Van Polen’s evidence on this point also fits best in line with the general picture revealed by all the evidence. The general picture revealed by the evidence is that Ms. Andruski is a direct and forthright person who is frank and immediate in stating her opinions and advocating for her needs. She immediately raised issues with Ms. Van Polen when she was not happy about another customer sitting close to her. She then immediately raised an issue with the Server when the Server cleaned her table with a bleach solution. Ms. Andruski gave no evidence that after the Server walked behind her and sprayed bleach, she responded to the Server having done so. It is unlikely that, if the Server walked behind Ms. Andruski and sprayed bleach, Ms. Andruski would have done nothing in response to it.

[43] Once Ms. Van Polen and the Server were together behind the counter, the two of them laughed at what was going on, and Ms. Andruski called them out on their laughing, asking them if they thought what was going on was funny. They told her they were laughing at how ridiculous the whole situation was. It is at this point that Ms. Andruski asked to speak to a manager and Ms. Van Polen said that she was the manager. Ms. Andruski told Ms. Van Polen that the Server had sprayed her in the face with bleach. Ms. Andruski continued coughing openly and said that she could not breathe. Ms. Van Polen suggested to Ms. Andruski that she sit outside. Ms. Andruski responded that she would not do so and told Ms. Van Polen to go outside and take the Server with her. Ms. Andruski also asked to speak to the owner. In response, Ms. Van Polen gave her a business card for the Café. Ms. Andruski called the number on the card, and the Café phone rang. In response, Ms. Van Polen and the Server both laughed.

[44] Throughout the remaining period during which Ms. Andruski was at the Café, she continued to openly cough. It appeared to Ms. Van Polen that this was making other customers uncomfortable. Ms. Van Polen asked Ms. Andruski several times to put on a mask or go outside.

[45] At 1:08 p.m. Ms. Andruski sent an email to the owners of the Café. By that time, she was experiencing confusion and anxiety, and she was still coughing. I do not accept her evidence about having lost the use of her voice at this time because it is inconsistent with her later evidence that she called and spoke to a friend when she left the Café.

[46] Some time between 1:15 p.m. and 1:30 p.m., Ms. Andruski left the Café and drove to the hospital. At 1:44 p.m., Ms. Andruski checked in at the hospital and reported to the doctor that she had been exposed to bleach fifteen minutes earlier. She also told the doctor that she was having issues with her eyes and lips burning, she was light-headed, dizzy, nauseous, confused, in panic and very ill. The doctor examined her and prescribed her to take an asthma recovery medication as well as an anti-inflammatory medication. The following day, she returned to the hospital with mild to moderate respiratory distress. The doctor did another examination and prescribed her more of the same medications.

[47] I have now set out what happened at the Café on July 2, 2020, along with what happened for Ms. Andruski in the immediate period afterwards. Next, I explain why I am satisfied that Ms. Andruski has proven the complainant’s case.

B. Has Ms. Andruski proven the complainant’s case?

1. Does Ms. Andruski have a protected characteristic under s. 8 of the Code?

[48] I start with explaining why I am satisfied that Ms. Andruski has both asthma and MCS, and that each of these conditions is a physical disability, which is a protected characteristic under s. 8 of the Code .

[49] The Code does not define the term physical disability. However, the Tribunal has long treated the term physical disability as including any 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: Boyce v. New Westminster (City) , 1994 B.C.C.H.R.D. No. 33 [ Boyce ] at para. 50. When determining whether a person has a physical disability, the Tribunal considers the person’s physical impairment, if any, the person’s functional limitations, if any, which result from that impairment, and any social, legislative, or other responses to that impairment, which may provide context to whether it is a disability: Morris v. BC Rail , 2003 BCHRT 14 [ Morris ] at para 214.

[50] I am satisfied that Ms. Andruski has a condition known as asthma. Ms. Andruski testified, and I accept her testimony, that she has asthma, which she described as a condition where a person’s lungs aren’t working properly. She has been under the care of her general practice doctor and a respirologist for many years regarding her asthma, and she takes a daily medication for her asthma as well as using an inhaler. In support of Ms. Andruski’s testimony, she provided a February 2, 2022 letter from her respirologist that corroborates her testimony. It sets out that the respirologist conducted a review of her chronic asthma.

[51] I am also convinced that Ms. Andruski’s asthma is a physical disability under the Code . She has established that her asthma is involuntary, and it impairs her ability to breathe. It is chronic, which I treat as meaning it is permanent in her life. It also requires her to take daily medication, which supports the finding that it is somewhat permanent. I am also willing to accept that her inability to breath the same as a person without asthma means that she experiences at least some restrictions compared to others regarding the physical activities that she can participate in without triggering her asthma.

[52] I am also satisfied that Ms. Andruski has a condition known as MCS. Ms. Andruski testified, and I accept her testimony, that she has MCS, which she described as an idiopathic illness that causes her to react negatively to chemicals. Those negative reactions include her experiencing cognitive impacts, confusion, and a belief that she cannot fend for herself. Ms. Andruski provided no further evidence about the types of negative reactions that she experiences in relation to her MCS. She said she has had to miss tons of work because of her MCS. She also said that she has had to change where she goes, her friends, and the whole way she lives to avoid scented products. Ms. Andruski said there is no medication she can take for her MCS, and her only option is to avoid environments that trigger her to have a reaction. In support of Ms. Andruski’s testimony, the letter she provided from a respirologist sets out that her allergist diagnosed her with MCS.

[53] Last, I am convinced that Ms. Andruski’s MCS is a disability under the Code . Ms. Andruski has established that her MCS is also involuntary, and it is something that she has had for long enough that she has had to change many things in the way she lives to limit her exposure to chemicals. Her MCS also impairs her ability to participate in the normal activities of life that expose her to chemicals that others would not have any reaction to. When exposed to such chemicals, she experiences negative mental effects.

[54] Next, I explain why I am satisfied that Ms. Andruski experienced an adverse impact regarding the Café’s services to her.

2. Did Ms. Andruski experience an adverse impact regarding the Café’s service to her?

[55] Ms. Andruski has satisfied me that, because of the Server spraying bleach near her table, she experienced an adverse impact in the form of sudden-onset mild breathing difficulties. I am willing to draw an inference between the proximity of the Server’s spraying of bleach and Ms. Andruski’s breathing difficulties to conclude that it was the Server’s spraying of bleach that caused those breathing difficulties. I am also willing to draw an inference from Ms. Andruski’s decision not to seek immediate medical attention for her breathing difficulties to conclude that they were mild in magnitude.

[56] Ms. Andruski also experienced mild to moderate respiratory distress on July 3, 2020 because of the Server’s spraying of bleach. I infer from the July 3, 2020 clinical records that she provided, and from her testimony about what happened on July 3, 2020, that the respiratory distress she experienced was because of the Server’s spraying of bleach.

[57] Last, Ms. Andruski has satisfied me that she experienced adverse impacts after she left the Café, in the form burning lips and eyes, light-headedness, dizziness, nausea, confusion and panic. I am willing to draw an inference from the proximity between the Server’s spraying of bleach and Ms. Andruski’s experience of these adverse impacts that the Server’s spraying of bleach caused these adverse impacts.

[58] Next, I explain why I am satisfied that Ms. Andruski’s asthma was a factor in the adverse impacts she experienced. However, she has not established that her MCS was a factor in those adverse impacts.

3. Were any of Ms. Andruski’s protected characteristics a factor in the adverse impacts she experienced?

[59] Ms. Andruski has convinced me that her asthma was a factor in the sudden-onset mild breathing difficulties that she experienced on July 2, 2020, and in the mild to moderate respiratory distress she experienced on July 3, 2020. Ms. Andruski’s asthma is a respiratory condition, and these adverse impacts occur when her asthma is triggered.

[60] Ms. Andruski has not convinced me that her asthma was a factor in the burning lips or eyes, or the light-headedness, dizziness, nausea, confusion or panic that she experienced when she left the Café. None of these adverse impacts have to do with Ms. Andruski’s respiratory system. There is no evidence to connect her asthma to these adverse impacts.

[61] Ms. Andruski has also not convinced me that her MCS was a factor in any of the adverse impacts she experienced because of the Server’s spraying of bleach. I recognise that Ms. Andruski said she had cognitive symptoms when she left the Café. However, Ms. Andruski provided no evidence that connects her cognitive symptoms to the Server’s spraying of bleach. Furthermore, according to Ms. Andruski’s testimony, and the hospital’s clinical records, she did not tell the doctors on either of her visits to the hospital that she has MCS, or that the symptoms she was having may be related to her MCS. The clinical records do not mention MCS and Ms. Andruski has provided no evidence that the doctor treated her for symptoms of MCS. Without further evidence connecting Ms. Andruski’s MCS to her cognitive symptoms or other adverse impacts, I am not prepared to accept that her MCS was a factor in her experiencing them.

4. Closing remarks about the complainant’s case

[62] Before moving on, I wish to recognise that the Server and Ms. Van Polen’s laughter at the situation regarding Ms. Andruski’s coughing, after Ms. Andruski had told them that she has asthma, was inappropriate and unnecessary. While I do not condone their laughter, Ms. Andruski has not provided any evidence about how their laughter adversely impacted her, or about how her asthma was a factor in any adverse impacts she experienced because of their laughter. I can only make decisions based on the evidence before me. Without any evidence about these matters, I am not prepared to conclude that their laughter was discriminatory.

[63] I have now explained why I am satisfied that Ms. Andruski has proven part of the complainant’s case but not other parts of it. Next, I explain why I am satisfied that the Respondents have proven their conduct is justified.

C. Have the Respondents proven they had a bona fide and reasonable justification for the Server and Ms. Van Polen’s conduct?

[64] To establish that the Respondents’ conduct was based on a bona fide and reasonable justification, they must prove that the following matters are more likely than not true:

a. They adopted a standard for a purpose or goal that is rationally connected to a function being performed;

b. They adopted that standard in good faith, in the belief that it is necessary for the fulfillment of that purpose or goal; and

c. The standard is reasonably necessary to accomplish that purpose or goal, in the sense that they cannot accommodate persons with the characteristics of Ms. Andruski without incurring undue hardship. To do this, the Respondents must establish that they could not have accommodated Ms. Andruski by doing anything else reasonable or practical to avoid the negative impact that she experienced: British Columbia (Public Service Employee Relations Commission) v. BCGSEU , [1999] 3 SCR 3 at paras. 38 and 54; British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights) , [1999] 3 SCR 868 at paras. 19 to 22.

[65] The Respondents have convinced me that the Server’s conduct, in spraying bleach to clean the table that Ms. Andruski was sitting at, was based on a bona fide and reasonable justification.

[66] Based on Mr. Harding’s testimony and the email he received from Fraser Health about health and safety practices during Covid-19, I am convinced that the Respondents adopted a standard for cleaning tables every 30 minutes using a bleach mixture. The purpose of that standard was to mitigate against the spread of Covid-19 at the Café. Mr. Harding gave evidence that the Café adopted that standard as recommended by Fraser Health. He provided a copy of an email that he received from Fraser Health, in which it recommended that the Café use 20 milliliters of bleach in 980 milliliters of water for cleaning its public surfaces. Mr. Harding said that the Café used a lighter concentration of bleach in its spray bottles than the concentration that Fraser Health recommended. Ms. Andruski disagrees with his evidence on this point. However, she has provided no evidence that contradicts it. So, I accept Mr. Harding’s evidence on this point.

[67] Based on Mr. Harding’s testimony, I am also satisfied that the Respondents adopted the standard of cleaning tables every 30 minutes with bleach and water in good faith. Mr. Harding gave evidence that they adopted this standard as part of their Covid-19 safety plan, and that they did so at the recommendation of Fraser Health. There is no evidence to the contrary.

[68] The Respondents have also convinced me that their adoption of this standard was reasonably necessary to accomplish the goal of mitigating against the spread of Covid-19 at the Café. I am willing to take notice that beginning in mid-March 2020, B.C. began to implement restrictions on businesses’ delivery of services to the B.C. public to slow the spread of Covid-19. It declared a provincial state of emergency and restricted the delivery of all restaurant and café services other than delivery and take-out. In mid-May 2020, B.C. began to ease its Covid-19 restrictions. It allowed restaurants and cafés to resume their eat-in services if the owners of those establishments developed enhanced protocols to mitigate against the spread of Covid-19 in accordance with public health and safety guidelines. B.C. relied on its regional health authorities to give business owners advice on how to mitigate against the risks of spreading Covid-19. The Respondents relied on Fraser Health’s advice in their adoption of the standard of cleaning with a bleach mixture every 30-minutes.

[69] The Respondents essentially argue that they also could not have accommodated Ms. Andruski by doing anything more that was reasonable or practical to avoid the negative impact that she experienced regarding its cleaning standards and her asthma. They say they did not know about Ms. Andruski’s disability until after the Server sprayed the bleach mixture near her. Nor did they know about the impact that their use of the bleach mixture as a cleaning agent could have on her regarding her asthma. As such, they could not have done anything else reasonable or practical to avoid the negative impact she experienced. The Respondents further argue that after Ms. Andruski told the Server about her asthma, the Server and Ms. Van Polen offered Ms. Andruski sensible options, including for her to go sit at one of the outside tables at the Café. They say that she refused to sit outside, and instead she remained in the Café and continued to cough openly, scaring away other customers.

[70] Ms. Andruski made no arguments in reply to the Respondents’ arguments on this point.

[71] I am convinced by the Respondents that they could not have accommodated Ms. Andruski by doing anything else reasonable or practical to avoid the negative impact that she experienced. First, the search for accommodation is a multi-party inquiry, and Ms. Andruski had a duty to facilitate the search for an accommodation, which included her bringing to the attention of the Respondents the facts relating to the discrimination and then working with the Respondents to identify and implement a reasonable accommodation: Central Okanagan School District No. 23 v. Renaud , [1992] 2 SCR 970; Borutski and others v. Crescent Housing Society and another (No. 3) , 2014 BCHRT 124 at paras. 324 to 328.

[72] Second, I am satisfied that up to the point where Ms. Andruski advised the Respondents of her asthma and her need for an accommodation, there is nothing further that was reasonable or practical that the Respondents could have done to accommodate her regarding their cleaning practices when they were not aware of her asthma. Ms. Andruski admitted that when she entered the Café, she did not advise the Server or Ms. Van Polen that she has asthma or that she has any condition that could be negatively impacted by its use of cleaning products while she was there. It wasn’t until after the Server had already sprayed the bleach mixture near Mr. Andruski that Ms. Andruski told the Server she has asthma and that the bleach mixture is impacting her regarding her asthma.

[73] Last, I am satisfied that after Ms. Andruski advised the Server of her asthma and the impact that the Server’s spraying of the bleach mixture was having on her regarding it, there is nothing further that was reasonable or practical that the Respondents could have done to accommodate her regarding their cleaning practices and her asthma. The Server did not spray the bleach mixture again while Ms. Andruski was in the Café. The Server also told she should Ms. Andruski to put on a mask or go sit at an outdoor table. Ms. Andruski refused to go to an outside table. She testified that doing so at that point would not have made any difference to her because the exposure to the bleach mixture had already occurred and she was already reacting to it.

[74] Before concluding this decision, I wish to recognize that the Server was not compassionate toward Ms. Andruski when she suggested that Ms. Andruski sit outside as an accommodation option, and that she more likely than not made this suggestion to Ms. Andruski because Ms. Andruski had been coughing openly in the Café since shortly after her arrival and not because she intended to accommodate Ms. Andruski regarding her asthma. Regardless, this does not change the fact that the Server provided Ms. Andruski with an option to sit outside, which was both a reasonable and practical way to allow Ms. Andruski to continue using the services of the Café, and at the same time allow the Server to continue implementing the Café’s Covid-19 safety plan cleaning standards.

[75] Before I conclude this decision, I also address Ms. Andruski’s argument that after she told the Server she has asthma and that the bleach is affecting her regarding her asthma, the Server walked behind her and sprayed the bleach again. She further argues that the Server and Ms. Van Polen did nothing to accommodate her regarding their cleaning of the Café. I do not accept Ms. Andruski’s arguments on these points. First, I have not accepted that the Server sprayed the bleach mixture behind Ms. Andruski after she told the Server about her asthma. Second, I have already accepted that the Server and Ms. Van Polen gave Ms. Andruski options that could have accommodated her regarding her asthma and the Respondents’ cleaning practices.

VI CONCLUSION

[76] Ms. Andruski has proven part of the complainant’s case, but not other parts of it. For those parts of the complainant’s case that Ms. Andruski has proven, the Respondents have also proven that they had a bona fide and reasonable justification for their conduct. I have dismissed the complaint in its entirety.

Sonya Pighin

Tribunal Member

Andruski v. Islands Café Ltd. and others, 2024 BCHRT 343

TABLE OF CONTENTS

I INTRODUCTION