Bruneau v. Port Coquitlam Senior Citizens’ Housing Society, 2025 BCHRT 22
Date Issued: January 31, 2025
File: CS-005162
Indexed as: Bruneau v. Port Coquitlam Senior Citizens’ Housing Society, 2025 BCHRT 22
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:
Samantha Bruneau
COMPLAINANT
AND:
Port Coquitlam Senior Citizens’ Housing Society (Hawthorne Seniors Care Community)
RESPONDENT
REASONS FOR DECISION
APPLICATION TO DISMISS A COMPLAINT
Section 27(1)(c)
Tribunal Member: Devyn Cousineau
On their own behalf: Samantha Bruneau
Counsel for the Respondent: Sari A. Wiens and Leah Singer
I INTRODUCTION
[1] This is a decision about whether to dismiss Samantha Bruneau’s human rights complaint without a hearing.
[2] Ms. Bruneau worked as a care aide for Hawthorne Seniors Care Community, which provides long term care, assisted living, and an adult day program. On September 2, 2021, the Provincial Health Officer [ PHO ] issued the Residential Care Staff COVID-19 Preventive Measures Order [ Order ], which required all staff in long-term care and seniors’ assisted living to be vaccinated against COVID-19 to be eligible to work. Ms. Bruneau sought an exemption from the Order based on a health condition which she says makes it dangerous to receive the vaccine. Her exemption was denied. When Hawthorne learned that Ms. Bruneau’s exemption had been denied, it terminated her employment.
[3] Ms. Bruneau filed this human rights complaint shortly after the PHO made the Order, alleging that the requirement that she be vaccinated to work was discrimination based on her disability, in violation of s. 13 of the Human Rights Code. Her employment was not terminated until one year later. She has not amended her complaint to allege that the termination was discriminatory. However, the termination flowed directly from the Order and the parties have addressed it in their submissions. For the sake of completeness, and because there is no prejudice to any party, I have also considered the termination in this decision.
[4] Hawthorne has applied to dismiss the complaint because it has no reasonable prospect of success: Code, s. 27(1)(c). It says, first, that Ms. Bruneau has no reasonable prospect of proving that she has a disability that interfered with her ability to receive a vaccination and comply with the Order. Second, it argues that it is reasonably certain to prove that compliance with the Order was a bona fide occupational requirement such that there was no breach of the Code .
[5] It is clear in the materials that Ms. Bruneau valued her work as a care aide. She invested ten years in this career, and it was very difficult to lose her job because of emergency vaccination orders in the COVID-19 pandemic. As she said, “at one point people were honking their cars and celebrating me and then I was fired”. There is nothing in the material before me that suggests Ms. Bruneau was not good at her job and valued by the patients she served. However, the events in this complaint took place during an unprecedented health emergency. The PHO determined that people working with vulnerable populations, including Ms. Bruneau, needed to be vaccinated against COVID-19, to protect those populations and the system as a whole.
[6] The Human Rights Code does not protect people who refused to get vaccinated “as a matter of personal preference, because they do not believe in the efficacy of vaccinations, or because they disagree with the requirement to be vaccinated”: Lavoie v. Fraser Health Authority, 2022 BCHRT 8 at para. 16. It only protects people who could not comply with the Order because of a protected characteristic, like disability. Based on the material before me, I am persuaded that Ms. Hawthorne has no reasonable prospect of proving that her disability prevented her complying with the Order and receiving the vaccine. In this situation, her complaint has no reasonable prospect of success and is dismissed.
II DECISION
[7] The burden is on Hawthorne in this application to persuade the Tribunal to dismiss the complaint because it has no reasonable prospect of success: Code, s. 27(1)(c). I have considered all the information filed by the parties. In these reasons, I only refer to what is necessary to explain my decision.
[8] 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.
[9] A dismissal application is not the same as a hearing: Lord v. Fraser Health Authority , 2021 BCSC 2176 at para. 20 ; SEPQA v. Canadian Human Rights Commission , [1989] 2 SCR 879 at 899. The threshold to advance a complaint to a hearing is low. In a dismissal application, a complainant does not have to prove their complaint or show the Tribunal all the evidence they may introduce at a hearing. They only have to show that the evidence takes their complaint out of the realm of conjecture: Workers’ Compensation Appeal Tribunal v. Hill, 2011 BCCA 49 [ Hill ] at para. 27 .
[10] To prove her complaint at a hearing, Ms. Bruneau would be required to prove that: she has a disability, experienced an adverse impact in her employment, and her disability was a factor in the adverse impact: Moore v. BC (Education), 2012 SCC 61 at para. 33. There is no dispute at this stage that Ms. Bruneau may have a disability, and experienced an adverse impact when her employment was terminated for her refusal to comply with the Order and receive the vaccine. The main issue is whether Ms. Bruneau has no reasonable prospect of proving that she could not take the COVID-19 vaccines because of her disability, such that adverse employment consequences were connected to her disability. In my view, she does not.
[11] I begin with a brief background to the complaint.
A. Background
[12] Hawthorne is a long-term care home, operated by Port Coquitlam Senior Citizen’s Housing Society. At the relevant time, it had about 200 residents and 300 staff.
[13] Ms. Bruneau worked for Hawthorne as a care aide. She was represented in her employment by the BC General Employees’ Union. She says, and there is no dispute, that she has a medical condition called “peripheral arteriovenous malformations”. She says this condition places her at a higher risk of blood clots and deep vein thrombosis. She says that the condition is painful and dangerous.
[14] On September 21, 2021, the PHO issued the Order, requiring all staff in long-term care and seniors’ assisted living to be vaccinated against COVID-19. The recitals to the Order set out its purposes, including to protect vulnerable residents in long term care from COVID-19 infection, severe illness and possible death, and to protect staff health and preserve the ability of the health care system to care of the health needs of the population: see detailed discussion in Hoogerbrug v. British Columbia, 2024 BCSC 794. The Order had no expiry date. It was periodically updated throughout 2021, 2022, and 2023. It remained in effect at the time Hawthorne filed this application.
[15] The Order applied to Hawthorne staff, including Ms. Bruneau. Hawthorne advised its employees that they were required to be vaccinated and kept them updated about applicable deadlines.
[16] The PHO had a process to seek an exemption from the Order on the basis that “the health of the person would be seriously jeopardized if the person were to comply with the order”. Only the PHO could issue an exemption; employers could not. At the relevant time, employees could continue working while a request for an exemption was pending.
[17] On September 24, 2021, Ms. Bruneau applied to the PHO for an exemption to the Order. Five days later, she filed this human rights complaint. She alleged that Hawthorne was discriminating against her by requiring her to take the vaccine in order to work.
[18] In October 2021, Ms. Bruneau told Hawthorne’s Chief Executive Officer [ CEO ] that she would not be getting vaccinated. She explained that she had submitted a request for a medical exemption from the PHO. On October 5, Hawthorne gave Ms. Bruneau a letter explaining the vaccine requirements and implications of failing to comply:
All staff at Hawthorne Seniors Care Community are required to follow the PHO Order. Unless you are vaccinated as required under the PHO Order, or you have made a medical exemption request to the PHO that is approved or pending you will not be able to work in the facility from October 12, 2021, onward. If you have a pending medical exemption request, please contact [the CEO] for further information on next steps.
[19] On October 8, Hawthorne received a letter from the Deputy Provincial Health Officer advising that Ms. Bruneau had applied for a medical exemption, and was permitted to continue working while the exemption request was under consideration. The letter also advised that the exemption decision would be communicated directly to the CEO.
[20] On January 21, 2022, the PHO denied Ms. Bruneau’s request for an exemption under the Order. In their decision letter, the Consultant Physician advised:
The employee has been informed that this rejection of a request for an exemption is effective 14 days from the date of this letter.
Further to the requirements of the relevant Provincial Health Officer order the worker must be vaccinated or have an exemption to work and an employer must not permit an unvaccinated staff member who is not vaccinated or who does not have an exemption to work once this rejection is in effect.
[21] The letter was sent to the CEO’s direct email address. At this point, however, the CEO no longer worked at Hawthorne and no one was monitoring their email. An automatic message directed people to send email to the new CEO instead, but this letter was never redirected. As a result, Hawthorne did not see the PHO’s letter until over seven months later. In the meantime, Ms. Bruneau continued to work, in violation of the Order.
[22] Ms. Bruneau says that she also did not receive a letter about her exemption request at the time it was issued. Hawthorne argues that this is not credible. I cannot resolve this dispute in this application, and I do not need to.
[23] In around September 2022, Hawthorne’s new CEO learned that Ms. Bruneau may not be vaccinated. The CEO then checked the email inbox for the former CEO, where she found the PHO’s January 21 letter, denying Ms. Bruneau’s request for an exemption.
[24] On September 6, 2022, Hawthorne terminated Ms. Bruneau’s employment. It says that it did this for two reasons: (1) Ms. Bruneau was ineligible to work under the Order because she was not vaccinated and refused to get vaccinated, and (2) Ms. Bruneau had engaged in serious misconduct by continuing to work after her application for an exemption was denied, in contravention of the Order. The union did not grieve the termination.
[25] I turn now to the application to dismiss Ms. Bruneau’s human rights complaint.
B. No reasonable prospect of proving a disability-related barrier to complying with the Order
[26] To prove her complaint at a hearing, Ms. Bruneau must show that she was adversely impacted in her employment and her disability was a factor in that adverse impact. Specifically, she must prove that she could not comply with the workplace rule requiring she be vaccinated because of a disability.
[27] In this application, I can only base my 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 . Based on the limited material before me, I am satisfied that Ms. Bruneau has no reasonable prospect of proving that her disability prevented her from receiving the COVID-19 vaccine.
[28] Ms. Bruneau says that “whether there was evidence stating [the vaccine] was safe or not this is my life we’re talking about”. She argues that she did not need to take the vaccine, statistics of vaccine injuries are “huge”, and she got COVID but was fine. I understand from this that, given her medical history and views of the risks relating to COVID and the vaccine, Ms. Bruneau considered it too risky to take the vaccine.
[29] The problem is that the evidence before me could not support a finding that Ms. Bruneau’s disability prevented her from taking the vaccine. The most supportive evidence is a letter dated August 19, 2021, from a doctor who had treated Ms. Bruneau several years prior. The doctor confirmed that Ms. Bruneau had a severe arterial malformation in her leg, making her prone to episodes of deep veinous thrombosis. The doctor said, “Due to this circumstance, it is my medical opinion that for her to have the vaccine could be more harmful than beneficial due to her medical condition”. Given the timing, it seems likely this letter was written to support Ms. Bruneau’s request for an exemption to the Order. Importantly, the letter does not say that Ms. Bruneau could not take the vaccine because of her disability. It was not enough to persuade the PHO that Ms. Bruneau’s health would be seriously jeopardized if she took the vaccine.
[30] The only other evidence before me about Ms. Bruneau’s ability to take the vaccine is:
a. A note dated June 5, 2023, from a doctor, setting out some information about Ms. Bruneau’s leg and veins and concluding: “This was her reasoning for choosing not to have her covid vaccination”. This note suggests that Ms. Bruneau chose not to take the vaccine. It could not support a finding that she was unable to take the vaccine because of a disability.
b. A publication about “peripheral arteriovenous malformations”, defined as a condition whereby “blood vessels form incorrectly, disrupting communication between your arteries and your veins”. This publication does not address whether Ms. Bruneau could have taken the vaccine.
[31] This evidence, taken together, could not support a finding that Ms. Bruneau could not take the COVID-19 vaccine, and comply with the Order, because of a disability. This means that Ms. Bruneau has no reasonable prospect of proving the elements of her discrimination complaint.
III CONCLUSION
[32] I dismiss Ms. Bruneau’s complaint under s. 27(1)(c) of the Code.
Devyn Cousineau
Tribunal Member