BC Human Rights Tribunal

Noël v. Board of Education of School District No. 23 (Central Okanagan) (No. 4), 2025 BCHRT 18

Date Issued: January 28, 2025
File: CS-004382

Indexed as: Noël v. Board of Education of School District No. 23 (Central Okanagan) (No. 4), 2025 BCHRT 18

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:

Michelle Noël

COMPLAINANT

AND:

Board of Education of School District No. 23 (Central Okanagan)

RESPONDENT

REASONS FOR DECISION
APPLICATION TO DISMISS A COMPLAINT
Sections 27(1)(c), (f) and (g)

Tribunal Member: Beverly Froese

Counsel for the Complainant: Cayleigh Shiff

Counsel for the Respondent: Danielle Temple

I INTRODUCTION

[1] In January 2021, Michelle Noël filed a complaint against the Board of Education of School District No. 23 (Central Okanagan) alleging discrimination regarding her employment based on mental disability, sex, and family status contrary to s. 13 of the Human Rights Code . Specifically, Ms. Noël alleges she was discriminated against based on family status when her supervisor made negative comments about First Nations and Metis people. She alleges she was discriminated against based on sex when the District allowed her co-workers to adopt a sexist team name and exclude her from their meetings. She alleges she was discriminated against based on mental disability when the District changed her work conditions after she returned from a medical leave, placed her on an administrative leave in July 2019, conducted investigations of her workplace conduct, and imposed medical monitoring requirements on her employment.

[2] The District denies discriminating. It applies to dismiss the complaint under ss. 27(1)(c), (f), and (g) of the Code on the basis that it has no reasonable prospect of success, it has been appropriately dealt with in another proceeding, and it is untimely.

[3] For the following reasons, the application to dismiss is granted. The allegations that the District discriminated against Ms. Noël when it placed her on administrative leave in 2019, investigated her workplace conduct in June and July 2019, and imposed medical monitoring requirements in January 2020 are dismissed under s. 27(1)(f) on the basis they have been appropriately dealt with in another proceeding. The allegation that the District discriminated against Ms. Noël when it imposed medical monitoring requirements in January 2019 is dismissed under s. 27(1)(g) on the basis it is late-filed and not in the public interest to accept. The remaining allegations are dismissed under s. 27(1)(c) on the basis they have no reasonable prospect of success.

[4] To make this decision, I have considered all the information filed by the parties. In these reasons, I only refer to what is necessary to explain my decision.

II BACKGROUND

[5] The background is taken from the materials provided by the parties. I make no findings of fact on the merits of the complaint.

[6] In 2015, Ms. Noël started working in the District’s Learning Technology Department [ Department ] as a full-time hardware/software technician. [1] The Department’s over 30 employees provide, maintain, and support the District’s technological needs and report to either the Learning Technology Manager [ Manager ] or one of the Department’s coordinators. The employment relationship between technicians and the District is governed by a collective agreement between the District and CUPE Local 3523 [ Union ].

[7] Ms. Noël has a history of Generalized Anxiety Disorder and depression.

[8] Between August and October 2017, Ms. Noël reported several incidents of bullying and harassment by a co-worker [ Co-Worker ]. One of her complaints related to an incident that occurred in mid-September 2017, when the Co-Worker allegedly lunged toward Ms. Noël, yelled at her, and slammed his hands down on a desk [ September 2017 Incident ]. Ms. Noël says the September 2017 Incident triggered her anxiety, depression, and PTSD-like symptoms.

[9] The documentary evidence indicates that when Ms. Noël reported these incidents to the District, she met with or exchanged emails with the Manager about her concerns. It appears from that evidence that around late September 2017, both Ms. Noël and the Co-Worker were directed to take any further concerns they had to the Manager and not to engage with one another. Near the end of October 2017, Ms. Noël reported two more incidents involving the Co-Worker to the Manager that she said made her feel uncomfortable and unsafe. In her email, Ms. Noël also told the Manager she was receiving treatment for the trauma she experienced from the September 2017 Incident. At some point, the District began an investigation into the Co-Worker’s conduct.

[10] The Manager subsequently changed the work schedule so Ms. Noël and the Co-Worker did not work in close proximity to one another. The Manager says he felt this was the best way to address Ms. Noël’s request not to have contact with the Co-Worker. Ms. Noël says she felt the schedule change was done to retaliate against her for reporting bullying and harassment. She alleges that after the schedule was changed, she was given less access to data she needed to do her job. Around this time, Ms. Noël submitted an Application for Compensation and Report of Injury or Occupational Disease to WorkSafeBC. Ms. Noël says her mental health was deteriorating, and she felt helpless and frustrated by the District’s response to her complaint of bullying and harassment.

[11] In late November 2017, Ms. Noël told the Manager the revised schedule was preventing her from doing her job and she could work with the Co-Worker so long as he was professional. For that reason, the Manager changed the work schedule back to the way it was.

[12] The District completed its investigation of Ms. Noël’s complaints against the Co-Worker around the end of November 2017. The District found that the Co-Worker had acted inappropriately toward Ms. Noël and contrary to its respectful workplace policy. At that time, the District told Ms. Noël that appropriate action had been taken to ensure such incidents would not happen again.

[13] In December 2017, WorkSafeBC denied Ms. Noël’s claim for compensation for a mental disorder relating to the September 2017 Incident. Ms. Noël appealed that decision to the Workers Compensation Appeal Tribunal [ WCAT ].

[14] In January 2018, Ms. Noël went on a medical leave of absence. While she was on leave, the District implemented a restructuring of the Department that involved creating coordinator positions and a new work order system, and changing existing computer security protocols. The District also created “zones” within the Department to correspond to its various needs. Specifically, the “school zone” consisted of a field services coordinator and eight technicians assigned to support schools in three sub-zones. The “admin zone” included the District’s head office and schools that provide a range of alternative education and services. It consisted of an administrative services coordinator [ Coordinator ], a technician, the “Help Desk”, and two co-op students.

[15] In late October 2018, Ms. Noël provided medical clearance to return to work on a six-week graduated return to work schedule. Around that time, the District became aware of negative social media posts that Ms. Noël made while on leave about how she was treated at work. The District notified Ms. Noël that it was undertaking a misconduct investigation under the collective agreement to determine if she breached its policy on the use of social media.

[16] After Ms. Noël was medically cleared to return to work, she met with the Manager to discuss the Department restructuring and her return to work. The District says Ms. Noël was assigned to the admin zone because it needed support at the time. It also says that assigning Ms. Noël to the admin zone was consistent with her request for a lighter workload and to possibly work with the Coordinator, who she saw as a mentor. Ms. Noël denies that and says she requested to work at familiar school sites with familiar tasks and people and that she “pushed back” when told she would be working in the admin zone.

[17] In November 2018, Ms. Noël returned to work. She alleges that her new role in the admin zone was very different from her previous role, and she was assigned tasks usually assigned to summer students, such as cleaning and answering the phone. She also says she was only assigned to one school, had far fewer work orders than in the past, and was not given access to servers she needed to perform her job duties. The District disputes those allegations and says Ms. Noël was performing tasks consistent with her position and gradual return to work schedule. It says that the number of work orders assigned to a technician is not reflective of the degree of IT support they actually provide to the site. The District says that all technicians were given computer access and security clearance tailored to the work they performed. It says that any issues Ms. Noël had with accessing the system were either temporary or related to implementing new security protocols.

[18] The parties do not appear to dispute that at the material time, all the technicians in the school zone were male. They also do not appear to dispute that Ms. Noël attended admin zone meetings but was not allowed to attend school zone meetings.

[19] In late November 2018, Ms. Noël met with the District’s Director of HR, an HR manager, and the Union president to discuss the misconduct investigation into her social media posts. During the investigation, Ms. Noël acknowledged that the posts were inappropriate and apologized for making them. She also told the District that she struggled with mental health issues while she was on leave that impaired her judgment, decision-making capacity, and ability to gauge the appropriateness of her behaviour.

[20] The District’s investigation concluded that Ms. Noël engaged in serious misconduct when she made the social media posts. The District informed Ms. Noël that before a decision was made about appropriate discipline, if any, her medical condition and any role it may have played in her actions needed to be determined. Ms. Noël was asked to provide medical information from her doctor that included an opinion as to whether her disability caused or contributed to her actions.

[21] In early December 2018, Ms. Noël made a Prohibited Action Complaint [ PAC ] with WorkSafeBC. She alleged that the District engaged in “prohibited actions” against her in breach of the Workers Compensation Act for formally complaining about bullying and harassment by the Co-Worker.

[22] In late December 2018, Ms. Noël provided medical information to the District indicating that elevated levels of stress and anxiety could have contributed to her actions while she was on leave. The medical information indicated that Ms. Noël was continuing to receive treatment and was fit to return to work with some accommodations, namely micro-breaks and flexibility to contact her emotional supports if needed.

[23] Near the end of January 2019, the District wrote to Ms. Noël and said that based on the medical information she provided, it concluded that her illnesses were a factor in her conduct and it had decided not to discipline her for the social media posts. The District also said that while it would support Ms. Noël addressing her illnesses, it would not tolerate inappropriate conduct. The District told Ms. Noël that she was responsible for managing her condition and that it would implement recommended accommodations. At that time, the District also told Ms. Noël that going forward, she was required to meet monthly with her managers and provide monthly updates from her medical practitioners confirming she was participating in her treatment plan and was medically fit to work [ 2019 Medical Monitoring ]. The District also told Ms. Noël that if she was knowingly unwell, she should take a medical leave of absence. Ms. Noël says the monthly meetings were humiliating and unnecessary, but it is not in dispute that the Union never grieved the 2019 Medical Monitoring.

[24] In March 2019, WCAT allowed Ms. Noël’s appeal of WorkSafeBC’s decision denying her claim for compensation from a work-related mental disorder [ Compensation Decision ]. In the Compensation Decision, WCAT accepted Ms. Noël’s claim for compensation after finding that the September 2017 Incident aggravated her pre-existing anxiety disorder and depression.

[25] Around April 2019, the school zone technicians were permitted to name their team the “Knights of Ni”, in reference to a Monty Python movie.

[26] In late June 2019, Ms. Noël spoke with the District Principal of Learning Technology [ June 2019 Conversation ]. During the June 2019 Conversation, Ms. Noël expressed concerns about being excluded from the school zone meetings and told the District Principal she felt she was being discriminated against based on sex and disability.

[27] In early July 2019, Ms. Noël spoke with the Coordinator [ July 2019 Conversation ]. During the July 2019 Conversation, Ms. Noël told the Coordinator that she wanted her previous sites back. She also expressed concerns about being marginalized and discriminated against based on sex and disability because she felt the team name, “Knights of Ni”, is sexist and because she was excluded from school zone meetings. Ms. Noël also told the Coordinator he was contributing to the violation of her human rights. When the Manager asked the Coordinator about the July 2019 Conversation, the Coordinator told him that Ms. Noël had been upset and mentioned suicide. The Manager asked the Coordinator to send him a written summary of the July 2019 Conversation and sought advice from HR because he was worried about Ms. Noël. The Manager says HR reached out to the Union, who contacted Ms. Noël to make sure she was okay.

[28] After the July 2019 Conversation, the District placed Ms. Noël on a paid administrative leave and retained a third-party investigator to investigate her conduct during the June 2019 and July 2019 Conversations. In a letter sent to Ms. Noël at the time, the Manager said the District was concerned about her health and wellness and offered assistance with obtaining supports. Ms. Noël says that by being placed on administrative leave, she felt as though she were being disciplined for expressing concerns that she was being discriminated against.

[29] In late August 2019, the District sent a letter to Ms. Noël and asked her to provide medical documentation stating she was medically fit to return to work and discuss the July 2019 Conversation. The medical information Ms. Noël provided stated she was fit to return to work without restrictions. Ms. Noël says the District’s letter was the first time she learned that it was investigating alleged misconduct related to the July 2019 Conversation. She also alleges there were issues with the investigation process, in particular that she only found out in October 2019 that the District was investigating the June 2019 Conversation as well.

[30] Based on the investigator’s report, the District sent a letter to Ms. Noël in mid-January 2020 stating that it was implementing the same medical monitoring requirement it implemented in January 2019 [ 2020 Medical Monitoring ]. The letter also stated that Ms. Noël’s behaviour during the June 2019 and July 2019 Conversations was unacceptable, upsetting, and disruptive to the Department and its staff. It stated that despite the District’s efforts to accommodate Ms. Noël, she continued to engage in inappropriate and disruptive behaviour. The letter was a final warning to Ms. Noël that if she engaged in any further inappropriate or disruptive behaviour, her employment was in jeopardy. The Union grieved this letter and the 2020 Medical Monitoring under the collective agreement.

[31] In August 2020, WorkSafeBC dismissed Ms. Noël’s PAC. In March 2022, WCAT denied Ms. Noël’s appeal [ PAC Decision ].

[32] The grievance regarding the 2020 Medical Monitoring went to a hearing. After eight days of hearing between November 2021 and April 2022, the Arbitrator issued a decision in July 2022 [ Arbitration Decision ]. The substance of the Arbitration Decision is discussed in my analysis below.

[33] At the time of this application, Ms. Noël was still working as a technician in the admin zone. Ms. Noël alleges that she continues to be isolated in the admin zone, assigned menial tasks, and given much less responsibility. The District denies those allegations. It says the Manager routinely assesses the Department’s ability to meet its IT needs and demands and moves technicians to different zones to meet them. As an example, the District says that due to a staff shortage, in March 2023 Ms. Noël was assigned to assist with supporting two school sites.

III DECISION

A. Section 27(1)(f) – Part of the complaint has been appropriately dealt with in another proceeding

[34] The Tribunal may dismiss a complaint under s. 27(1)(f) of the Code if the substance of the complaint has been appropriately dealt with in another proceeding. The term “proceeding” is defined in the Code as including “a proceeding authorized by another Act and a grievance under a collective agreement”: s. 25(1).

[35] The principles underlying s. 27(1)(f) flow from the doctrines of issue estoppel, collateral attack, and abuse of process, and include finality, fairness, and protecting the integrity of the administration of justice by preventing unnecessary inconsistency, multiplicity, and delay: British Columbia (Workers’ Compensation Board) v. Figliola , 2011 SCC 52 [ Figliola ] at paras. 25 and 36.

[36] To decide whether the substance of a complaint has been appropriately dealt with in another proceeding, the Tribunal must ask itself three things:

a. Did the other proceeding have jurisdiction to decide human rights issues under the Code ?

b. Was the previously decided legal issue essentially the same as what is being complained of to the Tribunal?

c. Did the complainant have the opportunity to know the case to be met and have a chance to meet it, regardless of whether the previous process mirrored the Tribunal’s?

Figliola at para. 37

Ultimately, the Tribunal must decide “whether it makes sense to expend public and private resources on the relitigation of what is essentially the same dispute”: Figliola at para. 37.

[37] The District submits that the Arbitration Decision appropriately dealt with the substance of at least part of the complaint. It says the Union raised the issue of discrimination in the grievance and the Arbitrator had jurisdiction and applied the Code .

[38] Ms. Noël submits that the Arbitrator did not appropriately deal with the substance of her complaint. She does not appear to dispute that the Arbitrator has jurisdiction to apply the Code and adjudicated some of her allegations of discrimination. She says the Arbitrator expressly declined to adjudicate allegations in her complaint that were beyond the scope of the grievance.

[39] The Arbitration Decision clearly sets out which allegations the Arbitrator found were within the scope of the grievance and which ones were not. Specifically, the Arbitrator said that the allegations related to the Department restructuring and changes to Ms. Noël’s work condition in 2018, her inability to attend school zone meetings, and the 2019 Medical Monitoring were outside the scope of the grievance: at paras. 99-102; 106-107.

[40] There is no question that the Arbitrator had jurisdiction to decide human rights issues under the Code and applied the Code to the allegations within the scope of the grievance. The evidence before me indicates that Ms. Noël had an opportunity to know the case to be met and had a chance to meet it. For the reasons explained below, I am satisfied that the Figliola factors have been met with respect to Ms. Noël’s allegations in this complaint that the District discriminated against her:

a. when it placed her on administrative leave in July 2019;

b. during the investigation into the June 2019 and July 2019 Conversations; and

c. when it imposed the 2020 Medical Monitoring.

[41] In her complaint, Ms. Noël alleges that the District did not meet its duty to inquire or accommodate her when it placed her on administrative leave in July 2019. She alleges that the District placed her on leave for potential misconduct as a means of disciplining her.

[42] In the Arbitration Decision, the Arbitrator said that the District’s decision to place Ms. Noël on administrative leave in July 2019 was beyond the scope of the grievance: at paras. 109-113. However, the Arbitrator went on to say that if she was wrong, she wanted to make it clear that there was no objective evidence to prove the District’s decision to place Ms. Noël on administrative leave in July 2019 was discriminatory: at para. 114. The Arbitrator noted that being placed on administrative leave may be stressful for the employee, but found no evidence was presented to show that Ms. Noël’s disability or perceived disability played any role in the District’s decision: at para. 116. The Arbitrator accepted the District’s evidence that Ms. Noël was placed on administrative leave solely because of its decision to investigate her workplace conduct during the June 2019 and July 2019 Conversations: at para. 117.

[43] In her complaint, Ms. Noël makes a number of allegations about the manner in which the investigation into the June 2019 and July 2019 Conversations was conducted. For instance, Ms. Noël alleges that it took three months before she was able to tell the investigator her side of the story and she only found out the District was investigating the June 2019 Conversation after she had already been interviewed by the investigator.

[44] The Union raised essentially the same allegations before the Arbitrator: Arbitration Decision, para. 120. The Arbitrator concluded that although there were “missteps” in the investigation process, specifically the communication could have been clearer and the process could have been more organized, there was no objective evidence to support an allegation that it was discriminatory: at paras. 118-135.

[45] With respect to the 2020 Medical Monitoring, the Arbitrator made the following findings on essentially the same issues the Tribunal would consider if this allegation went to a hearing:

a. The District discriminated against Ms. Noël when it failed to make appropriate inquiries after concluding its investigation into the June 2019 and July 2019 Conversations to determine the extent to which her medical condition might have contributed to her conduct: at paras. 250-253 and 283d.; and

b. The District did not have a reasonable basis to impose the 2020 Medical Monitoring. The District’s safety concerns and its conclusion that Ms. Noël’s condition interfered with her ability to perform her duties safely were based on outdated medical information or negative stereotypes about people living with a mental illness: at para. 241.

[46] Based on these conclusions, the Arbitrator awarded Ms. Noël $7,500 in general damages to compensate her for the “unacceptable Medical Monitoring”: at paras. 281 and 283i. I note here that the Arbitrator found that in addition to being discriminatory, the 2020 Medical Monitoring violated Ms. Noël’s privacy. The award of $7,500 included damages for both the discrimination and invasion of privacy.

[47] In summary, I am persuaded that allegations that the District discriminated against Ms. Noël when it placed her on administrative leave in July 2019, investigated the June and July 2019 Conversations, and imposed the 2020 Medical Monitoring should be dismissed under s. 27(1)(f) of the Code because they have been appropriately dealt with in the Arbitration Decision.

[48] I note here that in her response to the District’s arguments under s. 27(1)(f), Ms. Noël raised the doctrine of issue estoppel and why it does or should not apply in this case. While the doctrine is one of the principles underlying s. 27(1)(f), the questions of whether issue estoppel applies or should apply in this case are properly addressed in the context of s. 27(1)(c): Figliola at paras. 25-26; Fox v. Strata Plan KAS 1911 and others , 2018 BCHRT 259 at para. 32.

B. Section 27(1)(c) – The complaint has no reasonable prospect of success

[49] The District applies to dismiss the complaint on the basis that it has no reasonable prospect of success: Code, s. 27(1)(c). The onus is on the District to establish the basis for dismissal. In this section, I only consider the prospect of Ms. Noël successfully proving the allegations that I have not already dismissed under s. 27(1)(f) of the Code .

[50] Section 27(1)(c) is part of the Tribunal’s gate-keeping function. It allows the Tribunal to remove complaints which do not warrant the time and expense of a hearing.

[51] The Tribunal does not make findings of fact under s. 27(1)(c). Instead, the Tribunal looks at the evidence to decide whether “there is no reasonable prospect that findings of fact that would support the complaint could be made on a balance of probabilities after a full hearing of the evidence ” : Berezoutskaia v. British Columbia (Human Rights Tribunal) , 2006 BCCA 95 at para. 22, leave to appeal ref’d [2006] SCCA No. 171. The Tribunal must base its decision on the materials filed by the parties, and not on speculation about what evidence may be filed at the hearing: University of British Columbia v. Chan , 2013 BCSC 942 at para. 77 .

[52] A dismissal application is not the same as a hearing: Lord v. Fraser Health Authority , 2021 BCSC 2176 at para. 20 ; SEPQA v. Canadian Human Rights Commission , [1989] 2 SCR 879 at 899. The threshold to advance a complaint to a hearing is low. In a dismissal application, a complainant does not have to prove their complaint or show the Tribunal all the evidence they may introduce at a hearing. They only have to show that the evidence takes their complaint out of the realm of conjecture: Workers’ Compensation Appeal Tribunal v. Hill, 2011 BCCA 49 at para. 27 .

[53] To prove her complaint at a hearing, Ms. Noël will have to prove she experienced an employment-related adverse impact in which her mental disability, sex, or family status were a factor: Moore v. British Columbia (Education) , 2012 SCC 61 at para. 33. To be successful, it is only necessary for Ms. Noël to prove her protected characteristics were a factor in any employment-related adverse impacts she suffered; she does not have to prove they were the only or overriding factors: Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Bombardier Inc. (Bombardier Aerospace Training Center), 2015 SCC 39 at para. 52; Stewart v. Elk Valley Coal Corp. , 2017 SCC 30 at paras. 45 and 46.

[54] It is not enough for Ms. Noël to claim she was treated unfairly and has protected characteristics. There must be some evidence that takes her allegations that the unfair treatment was connected to a protected characteristic out of the realm of speculation and conjecture. In the absence of such evidence, “that conclusion can only be said to be based on speculation and conjecture, rooted in feelings, suspicions and beliefs”: Ibrahim v. Intercon Security , 2007 BCHRT 201 at para. 80; see also Schnurr v. Douglas College and Greathouse , 2007 BCHRT 40 at para. 25, upheld in 2008 BCSC 1799.

[55] If Ms. Noël proves her case, the burden would shift to the District to justify the impact as a bona fide occupational requirement [ BFOR ]. If the impact is justified, there is no discrimination. To justify the adverse impacts at a hearing, the District would have to prove that: (1) it adopted the standard for a purpose rationally connected to the performance of the job, (2) it adopted the standard in an honest and good faith belief that it was necessary to the fulfillment of that legitimate purpose; and (3) the standard is reasonably necessary to the accomplishment of that legitimate purpose. This third element encompasses an employer’s duty to accommodate the complainant to the point of undue hardship: British Columbia (Public Service Employee Relations Commission) v. British Columbia Government and Service Employees’ Union (Meiorin Grievance) , [1999] 3 SCR 3 at para. 54 .

[56] On an application to dismiss under s. 27(1)(c), a respondent may argue that a complaint has no reasonable prospect of success because it is reasonably certain to prove a BFOR defence at the hearing: Purdy v. Douglas College and others , 2016 BCHRT 117 at para. 50; O’Beirne v. District of Mission , 2020 BCHRT 199 at para. 53.

1. Discrimination based on family status

[57] In her complaint, Ms. Noël alleges that the Coordinator made disparaging and demeaning comments based on negative stereotypes about First Nations and Metis people and she has cousins who are First Nation and Metis. She alleges the Coordinator made such comments in late November 2018, late January 2019, and early October 2020.

[58] The District argues that these allegations should be dismissed because they have no reasonable prospect of success. The District argues that these allegations are speculative, and the materials do not take them out of the realm of conjecture. I agree.

[59] In her response to this application, Ms. Noël did not include these allegations in her summary of the allegations in her complaint or address the District’s argument about her prospects of successfully proving them at a hearing. In the absence of any particulars about these allegations, for instance as to what was allegedly said and to whom, or an allegation that Ms. Noël experienced any employment-related adverse impacts, I dismiss these allegations on the basis they have no reasonable prospect of success.

2. Discrimination based on sex

[60] Ms. Noël alleges that she experienced employment-related adverse impacts based on sex. Specifically, she says she was the only female technician in the admin zone and the District did not view her as a field technician. Ms. Noël alleges discrimination based on sex because the team name “Knights of Ni” is sexist since knights are associated with masculinity and only men can be knights. She also alleges that the team name implies that school zone meetings are a “male-only space”, and she was the only technician excluded from the meetings. Ms. Noël alleges that being excluded from school zone meetings affected her professional growth and work environment because they were opportunities for her to learn from her peers and participate in a team environment.

[61] The District argues that these allegations should be dismissed because there is no basis on which to conclude that Ms. Noël’s sex was a factor in any employment-related adverse impacts. The District denies that Ms. Noël was excluded from school zone meetings because of her sex. It also denies that the name “Knights of Ni” is sexist and offensive. The District says the team name is “simply a pop culture reference to characters in a satirical movie” and does not suggest that Ms. Noël is less worthy because of her sex.

[62] Based on the totality of the evidence before me, I am persuaded that Ms. Noël has no reasonable prospect of proving a connection between her sex and her exclusion from school zone meetings. That evidence indicates that school zone meetings were for technicians assigned to the school zone and admin zone meetings were for staff who worked in the admin zone. It indicates that Ms. Noël was included in and attended meetings of the admin zone. Last, it indicates that Ms. Noël was not the only technician assigned to the admin zone. Ms. Noël does not appear to dispute the District’s assertion that the Coordinator is a technician and the person in the Help Desk position is also a technician. She also does not appear to dispute that the technicians in these positions were male and did not attend school zone meetings either.

[63] I accept for the purposes of this application that Ms. Noël wanted to attend school zone meetings and that she believes she would benefit from attending them. However, in my view there is nothing in the materials before me from which a reasonable inference could be drawn that Ms. Noël’s sex played any role in the District’s decision to not allow her to attend school zone meetings. The District has put forward a reasonable, non-discriminatory reason for why Ms. Noël was not included in meetings of the school zone’s technicians that is supported by the evidence before me.

[64] With respect to the team name, in my view this situation is similar to Maleki v. Focus Corporation and others , 2010 BCHRT 265. In that case, one of the allegations made by the complainant, who is from Iran, was that he was discriminated against when a project manager named their team “Team Persia” at a company-sponsored golf tournament. The complainant alleged that the name was intended to humiliate him. He alleged that the project manager intended to suggest “that golf was not a game for Persians” and that he should not continue to play. The respondents said the team name was not intended to be negative in any way and arose after the project manager and the complainant had a conversation about where the complainant was from. Based on the evidence before it, the Tribunal dismissed this part of the complaint under s. 27(1)(c) on the basis it had no reasonable prospect of success. The Tribunal found nothing in the evidence supported the complainant’s interpretation of the team name or allegations about the project manager’s motives: at para. 29.

[65] Based on the materials before me, I am persuaded that Ms. Noël has no reasonable prospect of proving that in the context of this case, the name “Knights of Ni” constitutes discrimination based on sex. In my view, nothing in the materials supports Ms. Noël’s subjective interpretation of the team name or suggests that either Ms. Noël or women in general could not be part of the team or are less worthy. As I am not satisfied that she has taken this allegation out of the realm of speculation and conjecture, this allegation is dismissed.

3. Discrimination based on mental disability

[66] In her complaint, Ms. Noël alleges the District discriminated against her based on mental disability:

a. regarding her complaints of bullying and harassment by the Co-Worker;

b. when it changed her working conditions following, and as a result of, her taking a medical leave of absence in 2018;

c. when it investigated her social media use while on a medical leave of absence;

d. when it imposed the 2019 Medical Monitoring; and

e. when it failed to investigate or address her complaints of discrimination or retaliated against her for making complaints and taking a leave of absence.

[67] The District does not dispute that at the material time Ms. Noël had a disability protected under the Code . The essence of the District’s argument is that the above allegations should be dismissed because Ms. Noël has no reasonable prospect of proving she experienced any employment-related adverse impacts based on disability. The District also says the complaint has no reasonable prospect of success because it reasonably accommodated Ms. Noël’s disability.

[68] The parties dispute whether the Arbitrator and WCAT made any findings that are relevant to the issue of whether Ms. Noël’s complaint of disability-related discrimination has a reasonable prospect of success. The District argues that after careful consideration of the evidence presented, both the Arbitrator and WCAT made findings of fact and conclusively determined it had non-discriminatory reasons for all its actions. As noted above, Ms. Noël raised the doctrine of issue estoppel in her response and argues that its elements are not met in this case. Alternatively, Ms. Noël argues that if the elements of issue estoppel have been met, the Tribunal should exercise its discretion not to apply it.

[69] The rationale underlying the doctrine of issue estoppel is to avoid “[d]uplicative litigation, potential inconsistent results, undue costs, and inconclusive proceedings”: Danyluk v. Ainsworth Technologies Inc. , 2001 SCC 44 at para. 18. The three elements of issue estoppel are:

(1) whether the same question has been decided;

(2) whether the earlier decision was final; and

(3) whether the parties, or their privies, are the same.

Figliola at para. 27

[70] The Tribunal has discretion to apply the doctrine when the three preconditions have been met. That determination is made on “a case by case basis, having regard to the principles of fairness in the human rights context”: Tozer v. BC Ministry of Transportation and Highways , 1998 BCHRT 12 at para. 10.

[71] I find the three preconditions to establish estoppel have been met with respect to some of the factual findings made by the Arbitrator and WCAT in the PAC Decision. Both the Arbitrator and WCAT specifically considered and decided some facts the Tribunal would have to decide if this complaint went to a hearing. The parties to all three proceedings or their privies are the same and the evidence indicates that both parties or their privies had a chance to provide evidence and comprehensive submissions to the Arbitrator and WCAT.

[72] I disagree with Ms. Noël that I should exercise my discretion to not apply estoppel to her case when the three conditions have been met. In my view, the Tribunal’s inquiries into her allegations would not be “fundamentally different” from those made by the Arbitrator and WCAT. I am also of the view that it is not unfair to Ms. Noël to apply the doctrine when the preconditions have been met because otherwise the Tribunal would needlessly be re-litigating the same factual issues.

[73] I now consider the specific allegations Ms. Noël makes separately to determine their likelihood of success.

a. Allegations regarding Ms. Noël’s complaints of bullying and harassment by the Co-Worker

[74] In her complaint, Ms. Noël makes a number of allegations regarding the manner in which the District treated her and addressed her complaints of harassment and bullying by the Co-Worker. Those allegations cover the period of time between September and December 2017. Generally, they relate to the change the Manager made to the work schedule in October 2017 and Ms. Noël’s access to certain areas of the data centre. They also include allegations that Ms. Noël was forced to attend a mediation with the Co-Worker in December 2017 and that the District required written assurances from her that no further incidents would occur. Ms. Noël alleges that she was disciplined for interpersonal conflict with the Co-Worker and that after she reported bullying and harassment by the Co-Worker, her employer treated her “as a problem/difficult employee”.

[75] I accept for the purposes of this application Ms. Noël’s assertion that the bullying and harassment by the Co-Worker negatively affected her mental health, in particular the September 2017 Incident. However, based on the materials before me, I am persuaded that Ms. Noël has no prospect of establishing a nexus between any of the employment-related adverse impacts she alleges she experienced during this time and her mental disability.

[76] The evidence before me indicates that whenever Ms. Noël reported bullying and harassment by the Co-Worker, she either met with or exchanged emails with the District to discuss her concerns. It indicates that Ms. Noël told her employer she did not want to communicate with the Co-Worker, including to accept an apology letter from the Co-Worker. The evidence indicates that after Ms. Noël reported further incidents that made her feel unsafe and uncomfortable, the Manager changed the work schedule so she would not have to work in close proximity to the Co-Worker. It indicates that at Ms. Noël’s request, the work schedule was changed back about a month later and no further incidents of bullying and harassment were reported. Lastly, the evidence indicates that the District conducted an investigation into the Co-Worker’s conduct and after concluding that he had acted inappropriately, informed Ms. Noël that action had been taking so no further incidents would occur.

[77] There is no evidence before me from which a conclusion could reasonably be drawn that any issues Ms. Noël had with access to the data centre when the work schedule was changed were in any way connected to her mental disability. Nor is there any evidence before me supporting Ms. Noël’s assertion that she was forced to attend the mediation in December 2017, or her employer required any kind of assurances from her to be able to continue working. In her PAC, Ms. Noël made those same allegations and WCAT considered them in the context of whether the District “coerced” her into attending the mediation. In the prohibited action context, the term “coercion” is generally defined as an employer using force or intimidation to try to stop an employee from filing a safety complaint: PAC Decision at paras. 49-54. In the PAC Decision, WCAT found that regardless of whether it was the District or the Union who arranged the mediation, Ms. Noël was not coerced into attending. WCAT held that being required to attend a mediation is not coercion and “the intent of the mediation was to restore a working relationship between two colleagues”: at paras. 53-54.

b. Allegations that the District changed Ms. Noël’s working conditions following, and as a result of, her taking a medical leave of absence in 2018

[78] In her complaint, Ms. Noël makes a number of allegations relating to changes in her working conditions when she returned from a medical leave in November 2018. Specifically, Ms. Noël alleges that the District did not allow her to return to her previous job and created a new job for her with menial responsibilities. She alleges the District reorganized the Department so all the other technicians would be in one group, and she would be excluded. She alleges that the District did not give her adequate tools to do her job, for example limiting her access to the system. She alleges that the District hired a student and gave that student preferential treatment and higher security privileges.

[79] It is not necessarily discriminatory for an employer to change an employee’s working conditions. In Vollans v. YWCA Metro Vancouver , 2019 BCHRT 49, the Tribunal dismissed a complaint under s. 27(1)(c) of the Code . The complainant in that case alleged her employer discriminated against her when her work responsibilities were changed after she returned from a medical leave. At para. 67, the Tribunal stated:

Employers often organize work in ways that employees may not like. That in and of itself does not amount to an adverse treatment within the meaning of the Code . [citations omitted]

[80] Based on the evidence before me, I am persuaded that even if Ms. Noël were able to establish that changes to her working conditions when she returned from a leave in 2018 constitute employment-related adverse impacts, she has no reasonable prospect of proving a connection between them and her disability.

[81] Further, I find that the preconditions for estoppel apply to findings in the PAC Decision relevant to this allegation. In particular, WCAT’s finding that the Department restructuring was in the planning stages well before Ms. Noël went on a leave of absence and was done solely for operational reasons: at paras. 62 and 72. WCAT also found that the District’s actions were in response to Ms. Noël’s request for a lighter workload during her graduated return to work: at para. 73. WCAT accepted the District’s evidence that each zone had security access appropriate to its needs and Ms. Noël’s access was appropriate for her gradual return to work: at paras. 62-63 and 73. WCAT also accepted the District’s evidence that any gaps in access related to implementing system changes: at paras. 63 and 72.

[82] With respect to Ms. Noël’s allegations about the nature of her job duties and issues with students, I find there is no reasonable prospect that she would be able to prove they were in any way connected to her mental disability. Ms. Noël does not explain or provide details on which such a reasonable inference could be made. In my view, these allegations have not been taken out of the realm of conjecture.

c. Allegations about the District’s investigation into Ms. Noël’s use of social media while on a medical leave of absence

[83] In her complaint, Ms. Noël alleges that the District discriminated against her by choosing “to take misconduct approach rather than duty of care/duty to inquire”. In her response, Ms. Noël alleges that the District failed in its duty to inquire, both with respect to the decision to investigate her social media posts and its decision to discipline her for making them. Ms. Noël says the District knew she was on a medical leave when she made the social media posts and initiated the investigation while she was still on leave. Ms. Noël says the District failed to take her anxiety and depression into account when it allowed a “third party return to work coordinator” to inform her about the investigation.

[84] The District says it met its duty to inquire with respect to the investigation into Ms. Noël’s social media posts. The District says it waited until Ms. Noël was medically cleared to return to work before conducting the investigation. It also says that Ms. Noël’s allegation about how she was informed of the investigation is new allegation.

[85] The District’s evidence supports its assertion that it initiated the investigation after learning that Ms. Noël posted negative comments about her employer on social media. The evidence indicates that the sole purpose of the investigation was to determine if Ms. Noël breached its policies with respect to social media use. With respect to the allegation about how Ms. Noël was informed about the investigation, I find it is not necessary for me to decide whether this is a new allegation. The evidence before me indicates that Ms. Noël was informed by the District about the investigation after she had been medically cleared to return to work. In my view, Ms. Noël has no reasonable prospect of proving the manner in which she was informed about the investigation was an employment-related adverse impact connected to her disability.

[86] With respect to actions the District took after concluding that Ms. Noël engaged in serious misconduct, the law is well settled that when an employer knows, or reasonably should have known, that there might be a relationship between their employee’s job performance and a disability, “the employer has a duty to inquire into that possible relationship before making an adverse decision based on performance”: Martin v. Carter Chevrolet Oldsmobile, 2011 BCHRT 37 at para. 29.

[87] Based on the evidence before me, I am persuaded it is reasonably certain the District would be able to establish that it met its duty to inquire. The undisputed evidence indicates that after the investigator concluded that Ms. Noël engaged in serious misconduct, and before making any adverse decision regarding discipline, the District requested medical information to determine if there was a disability-related cause or contribution. It indicates that after receiving such medical information, the District decided not to discipline Ms. Noël because her medical condition was a factor in her actions.

d. Allegations that the District discriminated against Ms. Noël when it imposed the 2019 Medical Monitoring

[88] I accept for the purposes of this application that Ms. Noël would be able to establish that imposing the 2019 Medical Monitoring was an employment-related adverse impact connected to her disability. I am not persuaded on the materials before me that it is reasonably certain the District would be able to establish a BFOR defence at a hearing.

[89] The evidence indicates that the 2019 Medical Monitoring was imposed after the District concluded that Ms. Noël’s mental disability was a factor in her making the negative social media posts. It does not, however, explain the District’s rationale for imposing the 2019 Medical Monitoring, especially since it does not appear there was any time limit or opportunity to review this requirement. In my view, a hearing is required to determine if the District met its duty to reasonably accommodate Ms. Noël when it imposed the 2019 Medical Monitoring. For that reason, I am not dismissing this allegation under s. 27(1)(c) of the Code . I do, however, go on to consider whether this allegation is timely in the next section of my analysis.

e. General allegations that the District failed to investigate or address Ms. Noël’s complaints of discrimination or retaliated against her for making complaints and taking a leave of absence

[90] Based on the Arbitrator’s findings to which the elements of issue estoppel are met, I am persuaded that Ms. Noël has no reasonable prospect of proving these allegations at a hearing. Specifically, the Arbitrator found there was no evidence to establish that the District ever acted inappropriately or retaliated against Ms. Noël for raising concerns and making complaints about alleged discrimination. The Arbitrator found the evidence established that the District treated Ms. Noël respectfully in response to her formal and informal complaints. She also found that the District never imposed any consequences on Ms. Noël for making complaints and there was no malicious intent or bad faith on the District’s part regarding its decision to investigate the June 2019 and July 2019 Conversations: at paras. 259-268.

[91] In summary, I dismiss the following allegations under s. 27(1)(c) of the Code because they have no reasonable prospect of success:

a. That the District discriminated against Ms. Noël based on family status when the Coordinator made demeaning and disparaging comments about First Nations and Metis people;

b. That the District discriminated against Ms. Noël based on sex when it:

i. allowed the school zone technicians to name their team the “Knights of Ni”; and

ii. excluded her from school zone meetings;

c. That the District discriminated against Ms. Noël based on mental disability:

i. regarding her complaints of bullying and harassment by the Co-Worker;

ii. when it changed her work conditions following, and as a result of, her taking a medical leave of absence in 2018;

iii. when it decided to and investigated her social media use while she was on medical leave; and

iv. when it failed to investigate or address Ms. Noël’s complaints of discrimination or retaliated against her for making complaints and taking a leave of absence.

[92] I now consider whether the allegation that the District discriminated against Ms. Noël when it implemented the 2019 Medical Monitoring should be dismissed under s. 27(1)(g) of the Code .

C. Section 27(1)(g) – The 2019 Medical Monitoring allegation is untimely

[93] There is a one-year time limit for filing a human rights complaint: Code, s. 22. Section 22 is meant to ensure that complainants pursue their human rights remedies promptly so that respondents can go ahead with their activities without the possibility of a dated complaint: Chartier v. School District No. 62 , 2003 BCHRT 39 at para. 12. Section 27(1)(g) of the Code permits the Tribunal to dismiss a late-filed complaint.

[94] The District argues that allegations pre-dating January 7, 2020 are late filed and should be dismissed under s. 27(1)(g) . As I have already dismissed all but the allegation that the 2019 Medical Monitoring was discriminatory, I must only decide two issues: (1) whether this allegation is late filed, and (2) if so, whether to exercise my discretion to accept it because it is in the public interest to do so and there is no substantial prejudice to any person because of the delay: Code, s. 22(3) , School District v. Parent obo the Child , 2018 BCCA 136 at para. 68 .

[95] The complaint was filed on January 7, 2021, which means to be timely, there must be at least one allegation that occurred on or before January 7, 2020. The 2019 Medical Monitoring was imposed near the end of January 2019, which means that if it was not a continuing contravention, it was filed about one year late.

[96] A complaint is filed in time if the last allegation of discrimination happened with one year, and older allegations are part of a “continuing contravention”: Code , s. 22(2); School District v. Parent obo the Child , 2018 BCCA 136 at para. 68 . A continuing contravention is “a succession or repetition of separate acts of discrimination of the same character” that could be considered separate contraventions of the Code , and “not merely one act of discrimination which may have continuing effects or consequences”: Chen v. Surrey (City), 2015 BCCA 57 at para. 23 ; School District at para. 50 .

[97] The assessment of whether discrete allegations are a continuing contravention is a “fact specific one which will depend very much on the individual circumstances of each case”: Dickson v. Vancouver Island Human Rights Coalition, 2005 BCHRT 209 at para. 17 . A relevant consideration is whether there are significant gaps between the allegations: Dickson at paras. 16-17. Whether or not a gap is significant will be assessed contextually, considering the length itself and any explanations for the gap: Reynolds v Overwaitea Food Group, 2013 BCHRT 67, at para. 28. A significant, unexplained, gap in time will weigh against finding a continuing contravention: Bjorklund v. BC Ministry of Public Safety and Solicitor General , 2018 BCHRT 204 at para. 14 .

[98] For the purposes of this application, I accept without deciding that the complaint contains timely allegations, namely regarding:

a. the District’s decision to implement the 2020 Medical Monitoring;

b. negative comments the Coordinator made about First Nations and Metis people;

c. discrimination based on sex regarding the team name Knights of Ni and being excluded from school zone meetings; and

d. changes in Ms. Noël’s working conditions.

[99] I have already dismissed these allegations on the basis they have already been appropriately dealt with or have no reasonable prospect of success. However, I still consider them in my analysis to determine if the 2019 Medical Monitoring allegation is a continuing contravention.

[100] The District argues that the above allegations are of a fundamentally different character from the 2019 Medical Monitoring allegation because they allege discrimination based on other protected grounds and in different ways. Ms. Noël says the discrimination based on sex and disability allege an “ongoing state of affairs” similar to the examples given by the Tribunal in Dove v. GVRD and others (No. 3) , 2006 BCHRT 2006. In Dove , the Tribunal described two circumstances in which a continuing contravention might be established. The first is when “there are allegations of repeated harassment or discrimination”, for example “a poisoned work environment as a result of recurring sexual harassment”. The second is “the kind of case in which there is an ongoing state of affairs, for example, a public building which is inaccessible to wheelchair users or a policy withholding certain employment benefits for married persons from those in same sex relationships”: at para. 17.

[101] Ms. Noël also argues that the disability- and sex-based discrimination allegations that occurred before the one-year time limit are a continuing contravention because they are linked to timely allegations. She says that the District’s discriminatory conduct started after she took a medical leave in 2018. She says the discrimination based on sex and mental disability are of the same character because they allege “that the District has treated her poorly, changed her work conditions, and facilitated her exclusion from the rest of the field technicians because she suffers from a mental disability, took a medical leave for her mental disability, and because she is a woman”.

[102] I begin with the 2019 Medical Monitoring allegation. In my view, there is no question that it is of the same character as the 2020 Medical Monitoring allegation.

[103] In her response, Ms. Noël does not address whether the family status allegations are of the same character as the 2019 Medical Monitoring allegation. In my view, allegations that the Coordinator made disparaging comments about First Nations and Metis people are of a different character than the 2019 Medical Monitoring allegation.

[104] I disagree with Ms. Noël that her sex-based discrimination allegations are of the same character as the 2019 Medical Monitoring allegation. I agree with the District that allegations of discrimination regarding the team name “Knights of Ni” and being excluded from school zone meetings are of an entirely different character than requiring Ms. Noël to attend monthly meetings and provide monthly updates regarding her medical condition.

[105] Last, I find that allegations that the District changed Ms. Noël’s work conditions when she returned from a medical leave in November 2018 and imposed medical monitoring after investigating her social media posts are not a “succession or repetition of separate acts of discrimination of the same character”. Although they are both disability-based discrimination allegations, in my view the nature of the alleged conduct is not sufficiently similar to constitute a continuing contravention.

[106] Having found only the 2019 Medical Monitoring allegation to be of the same character as the timely 2020 Medical Monitoring allegation, I now turn to consider if it is a continuing contravention.

[107] The evidence indicates that the 2019 Medical Monitoring stopped when Ms. Noël went on administrative leave in July 2019. For that reason, I find the 2019 Medical Monitoring and the 2020 Medical Monitoring to be separate acts of alleged discrimination rather than one act of discrimination that had continuing effects or consequences.

[108] The length of the gap between implementing the 2019 Medical Monitoring and the 2020 Medical Monitoring is about one year. That is a significant gap and weighs against a finding that the 2019 Medical Monitoring is a continuing contravention. The reason for the gap is that the 2019 Medical Monitoring was implemented after the District investigated Ms. Noël’s social media posts and the 2020 Medical Monitoring was implemented after the District investigated the June 2019 and July 2019 Conversations. Although the reason for the gap is explained, I am not persuaded it is sufficient to outweigh the significance of the length of the gap between these two allegations. For that reason, I find the 2019 Medical Monitoring allegation is not a continuing contravention.

[109] I now consider whether to accept the 2019 Medical Monitoring allegation under s. 22(3) of the Code . The burden is on Ms. Noël to persuade the Tribunal to accept it. I must consider two things: public interest and substantial prejudice.

[110] The Tribunal assesses the public interest in a late-filed complaint in light of the purposes of the Code . These include identifying and eliminating persistent patterns of inequality and providing a remedy for persons who are discriminated against: s. 3. It may consider factors like the length of the delay, the reasons for the delay, the complainant’s interest in accessing the Tribunal, the respondent’s interest in being able to continue its activities without worrying about stale complaints, whether the complainant got legal advice, and the public interest in the complaint itself: British Columbia (Ministry of Public Safety and Solicitor General) v. Mzite , 2014 BCCA 220 [ Mzite ] at para. 53 and 63; Hoang v. Warnaco and Johns, 2007 BCHRT 24; Complainant v. The Board of Education of School District No. 61 (Greater Victoria) , 2022 BCHRT 44 at para. 18. These are important factors, but they are not necessarily determinative and not every factor will be relevant in every case: Goddard v. Dixon, 2012 BCSC 161 at para. 152 ; Mzite at para. 55 . The inquiry is always fact and context specific.

[111] Based on the materials before me and the relevant factors, I am not satisfied that it is in the public interest to accept the 2019 Medical Monitoring allegation. Specifically, I do not find Ms. Noël’s explanation as to why she did not make a complaint about the 2019 Medical Monitoring sooner to be sufficiently compelling to weigh in favour of accepting this allegation. In her complaint, Ms. Noël says that the reason for the delay in filing was because her employer placed her on administrative leave from July 2019 to January 2020. She does not, however, explain how being on administrative leave prevented her from making a complaint during that time.

[112] In her affidavit filed in support of her response to this application, Ms. Noël says that before she made this complaint, she was worried that the District or the Union would penalize her for making a complaint in another forum. She also says the Union told her it would handle the human rights and discrimination issues she was raising, and she was not aware that the grievance would only address some of the District’s conduct. Ms. Noël further says the Union told her she could not file a grievance and a human rights complaint.

[113] Ms. Noël does not explain why she was able to make complaints to WorkSafeBC and appeal its decision to WCAT during the material time but not make a complaint to the Tribunal. Even accepting Ms. Noël’s explanation that at some point the Union told her she could not file a grievance and a complaint, she does not provide any details as to when this occurred or when she became aware that she could file a grievance and a complaint.

[114] In these circumstances, I am not convinced that accepting the 2019 Medical Monitoring Allegation is in the public interest. I disagree with Ms. Noël that not accepting it would deter the District and other school districts and employers from similar acts of alleged discrimination. Ms. Noël had an opportunity to pursue her complaint about the 2020 Medical Monitoring and an adverse finding was made against the District. Further, and without minimizing the 2019 Medical Monitoring Allegation, I find there is nothing unique or novel about it in that the Tribunal receives many complaints of employment-related adverse impacts based on disability.

[115] Given my conclusion on the public interest, it is not necessary for me to consider whether accepting the 2019 Medical Monitoring Allegation would cause substantial prejudice to anyone.

IV CONCLUSION

[116] The District’s application to dismiss the complaint is granted.

[117] In summary:

a. The following allegations are dismissed under s. 27(1)(f) of the Code because they have already been appropriately dealt with in another proceeding:

i. the allegation that the District discriminated against Ms. Noël when it placed her on administrative leave in July 2019;

ii. the allegation that the District discriminated against Ms. Noël when it investigated the June and July 2019 Conversations; and

iii. the allegation that the District discriminated against Ms. Noël when it imposed the 2020 Medical Monitoring;

b. The allegation that the District discriminated against Ms. Noël when it imposed the 2019 Medical Monitoring is dismissed under s. 27(1)(g) of the Code because it is late-filed, and it is not the public interest to accept it; and

c. All remaining allegations in the complaint are dismissed under s. 27(1)(c) of the Code on the basis they have no reasonable prospect of success.

Beverly Froese

Tribunal Member