BC Human Rights Tribunal

Garnier v. Flavelle Sawmill Co. Ltd. (No. 3), 2025 BCHRT 45

Date Issued: February 26, 2025
File: CS-001486

Indexed as: Garnier v. Flavelle Sawmill Co. Ltd. (No. 3), 2025 BCHRT 45

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:

Francis Garnier
COMPLAINANT

AND:

Flavelle Sawmill Co. Ltd.
RESPONDENT

REASONS FOR DECISION
NO EVIDENCE MOTION

Tribunal Member: Kathleen Smith

On their own behalf: Francis Garnier

Counsel for the Respondent: Marylee A. Davies and Danielle Temple

Date of Hearing: October 1 and 2, 2024

Location of Hearing: Videoconference

Written submissions complete: October 9, 2024

I INTRODUCTION

[1] In this decision, I explain why I grant the respondent’s no evidence motion and dismiss the complaint.

[2] Francis Garnier brought a human rights complaint against his former employer, Flavelle Sawmill Co. Ltd. [ Flavelle ]. The complaint alleges that Flavelle fired Mr. Garnier while he was on a medical leave for a work-related injury. Mr. Garnier says this conduct amounts to discrimination in employment based on physical disability contrary to s. 13 of the Human Rights Code .

[3] Flavelle denies discriminating against Mr. Garnier and claims that it terminated his employment solely because he was absent from work without permission.

[4] The hearing of this complaint began on October 1, 2024. After Mr. Garnier finished giving his evidence and closed his case, I allowed Flavelle’s request to file a no evidence motion [the Motion ].

[5] In the Motion, Flavelle asks the Tribunal to dismiss the complaint without the need for it to present its case. Flavelle argues that, based on the evidence provided by Mr. Garnier at the hearing, there is no reasonable basis upon which the Tribunal could decide in his favour. Specifically, Flavelle argues that Mr. Garnier did not prove he had a disability for the purposes of the Code , and even if he did, his own evidence establishes that the alleged disability was not a factor in the termination decision.

[6] Mr. Garnier opposes the Motion and asks the Tribunal to continue the hearing. Mr. Garnier’s argument focuses on the fact Flavelle terminated his employment during the period when his doctor had prescribed a medical leave of absence.

[7] For the reasons that follow, I am persuaded that Mr. Garnier’s evidence, taken at its highest, does not provide a reasonable basis for a finding that he had a physical disability for the purposes of the Code at the relevant time. In these circumstances, I agree that it is appropriate to allow the Motion and dismiss the complaint without hearing from Flavelle. In the alternative, I agree that Mr. Garnier’s evidence does not reasonably support a conclusion that the alleged disability was a factor in the termination decision and the complaint ought to be dismissed on this basis.

II PROCEDURAL BACKGROUND

[8] I provide this background information to put my decision in context.

A. The complaint

[9] Mr. Garnier filed his complaint in January 2020. He originally named three respondents: Flavelle and two Flavelle employees. The Tribunal dismissed the complaint against the individual respondents in Garnier v. Flavelle Sawmill Co. Ltd. , 2023 BCHRT 147. The remainder of the complaint proceeded to a hearing.

[10] In the complaint, Mr. Garnier alleges that he injured his right index finger at work which caused pain and swelling. He alleges that he subsequently:

• informed his supervisors that he had to take some time off work;
• filled out a leave of absence form;
• saw his doctor who prescribed one month off work after looking at the x-ray of his finger;
• sent the doctor’s letter to Flavelle by registered mail; and
• Flavelle fired him and cancelled his health and medical benefits after receiving the doctor’s letter.

[11] In the complaint, Mr. Garnier also refers to injuring his eye at work and says that Flavelle and WorkSafeBC were aware of this injury. Mr. Garnier’s complaint also refers to other issues in the workplace including alleged unsafe conditions and bullying and harassment unrelated to his claimed injuries.

B. The response

[12] In response to the complaint, Flavelle asserts that the termination of Mr. Garnier’s employment was based solely on his unapproved absence from work. Flavelle claims that Mr. Garnier walked off the job on May 30, 2019, after his request for a three-month vacation was denied. Flavelle says it denied the leave for two reasons: it was short staffed for saw filers, and it believed that Mr. Garnier wanted the time off to go work at a sawmill in Fort Nelson. According to Flavelle, Mr. Garnier left the mill on May 30, 2019, was subsequently off work without permission, and did not mention an illness or injury until June 10, 2019. Flavelle claims that Mr. Garnier refused to meet to discuss his absence despite several warnings that a failure to do so would result in termination. In short, Flavelle says it terminated Mr. Garnier’s employment on June 19, 2019, after his repeated absence from work without permission and non-attendance at required meetings.

C. The hearing

[13] The Tribunal scheduled a four-day hearing and arranged a French-English interpreter at Mr. Garnier’s request, because his primary language is French.

[14] The hearing began on October 1, 2024. Mr. Garnier was the only witness for his case, and he gave most of his direct evidence on October 1. The cross examination of Mr. Garnier began mid-morning on October 2 and concluded at the end of the day. When Mr. Garnier finished giving his evidence, Flavelle requested to bring the Motion. I allowed Flavelle to do so and set a schedule for written submissions.

[15] This is my decision on the Motion.

[16] Because I dismiss the complaint, no further hearing dates are required to hear from Flavelle’s witnesses.

III Mr. Garnier’s evidence

[17] In this section, I summarize Mr. Garnier’s hearing evidence. This summary includes the evidence provided during his direct testimony and elicited through cross-examination. In addition to his oral evidence, it includes evidence contained in documents entered as exhibits and put to him in cross-examination.

[18] Mr. Garnier started working at Flavelle as a saw filer in around 2014. He was a member of the United Steelworkers, Local 2009 [ Union ] throughout his employment.

[19] Mr. Garnier described procedural changes at the mill starting in approximately July 2018. He explained that the changes resulted in him hammering saws every day to maintain them, and that led to finger pain. In the fall of 2018, his doctor prescribed cream for the finger pain. Mr. Garnier first informed Flavelle about an issue with his hand in November 2018, when he sent the following text message to the Head Filer on November 14, 2018:

I have to see the doctor today, I have pain in my finger joints. I be back to work tomorrow. The quad saw should have been realigned after the wheel grind and trouble shooting done every weekend. Have a nice day.

[as written]

[20] In cross-examination, Mr. Garnier agreed that he returned to work the next day and continued work as usual.

[21] On Tuesday May 21, 2019, Mr. Garnier filled out a leave request form and left it on the “board” in the filing room. He requested three months off between June 1 and September 1, 2019. Mr. Garnier acknowledged in cross-examination that the form referred to the leave as “vacation.” Mr. Garnier’s explanation about why he asked for vacation rather than a medical leave shifted during his evidence. In direct, he said that there were no forms available for requesting medical leave and that is why he asked for vacation. Later, during cross-examination he confirmed that he was aware that as an employee he was entitled to benefits under Blue Cross. He also stated during questioning in cross-examination that it was the job of his manager to give him the right form, not for him to ask for it.

[22] Mr. Garnier was at work on May 21 and continued working his usual shifts until Thursday, May 30, 2019, which was to be his last day before starting the requested leave. The mill was to be closed on Friday, May 31, 2019, for a funeral. I understand that Mr. Garnier attended that funeral.

[23] During cross-examination, Mr. Garnier gave shifting evidence about whether he saw his doctor in the period between May 21 (the day he asked for the leave) and May 30 (his last day of work). At first, he said no, then he said yes. When he was subsequently asked when he saw the doctor in that period, he could not recall. None of the documents before me refer to medical appointments in that period.

[24] On Tuesday, May 28, 2019, before his requested leave was to begin, Mr. Garnier wrote to the Union raising concerns about job postings, wages, and working conditions at the mill, including a failure to promote Union workers. He acknowledged that he did not mention an illness or injury, or need for a medical leave to the Union on this date. Mr. Garnier stated in that email, and agreed during cross-examination, that he had created his own job posting for a replacement saw filer which was taken down by the Mill Manager. He denied in cross-examination that he had done it so he could take a three-month vacation.

[25] On Thursday, May 30, 2019, Mr. Garnier was at work and intended it to be his last day before taking the requested three-month leave. He testified that when the Head Filer said see you Monday, he said no, I am taking three months off as set out in the leave request form. This led to conversations with the Maintenance Supervisor and Mill Manager who denied Mr. Garnier’s leave request. Mr. Garnier says that they told him the filing room was shorthanded, and he needed to go back to work. Mr. Garnier was unhappy with the decision and agreed in cross-examination that they had an argument. Mr. Garnier’s evidence was that he told them he was in pain, could not keep going, and was going to see his doctor, and they still denied his request. He subsequently left the mill and did not return to work at Flavelle. In cross-examination, Mr. Garnier denied the proposition that one of the reasons given was that Flavelle understood he intended to go work at a mill in Fort Nelson. He denied that this issue came up in the conversation or that it was the reason for requesting the leave.

[26] Mr. Garnier emailed the Union the same day his leave was denied. His email described the events of the day starting with the interaction with the Head Filer and then being told by the mill’s management that he could not take time off because they could not find anybody to work as a filer. Mr. Garnier’s email went on to say that he was experiencing too much stress because of poor management at the mill, being underpaid, and having no job security. He also referred to being over 70 years old, having finger joint inflammation because of hammering, a pacemaker, and type 2 diabetes. Mr. Garnier further stated that he needed a break and was going to see his doctor to put him on a stress leave.

[27] After leaving the mill on May 30, 2019, Mr. Garnier attended a walk-in clinic and saw Dr. Kwong. Mr. Garnier says that Dr. Kwong looked at his hand and issued a requisition so he could get an x-ray. Mr. Garnier produced a copy of the requisition, as well as a letter from Dr. Kwong that refers him to an eye assessment for a foreign body sensation in his left eye. Mr. Garnier says that Dr. Kwong also sent a report to WorkSafeBC. Mr. Garnier did not put a copy of that report into evidence. The materials from Dr. Kwong on this date do not speak to the condition of Mr. Garnier’s finger or his ability to work.

[28] On Friday May 31, 2019, Mr. Garnier and the Union exchanged emails. The Union acknowledged that Mr. Garnier had raised concerns about the workplace and that he was seeing his doctor for stress issues. The Union stated that it would be addressing some of the workplace issues during collective bargaining, including job postings, training, and seniority. Regarding the stress identified by Mr. Garnier, the Union expressed hope that his doctor would be able to help him.

[29] During the weekend of May 31 to June 2, 2019, Mr. Garnier drove himself from Vancouver to Fort Nelson and back. He estimated that he arrived in Fort Nelson early on Saturday and left later the same day. He said that he has a property in Fort Nelson and that he had to turn off the water pump and water system. When asked in cross-examination about the property, Mr. Garnier’s evidence was vague and brief. He described it as a shack with some tools. During cross-examination, Mr. Garnier agreed that he drove 18-hours straight each way and would have used both hands for driving and turning off the water pump and water system.

[30] Monday June 3, 2019, would have been Mr. Garnier’s next scheduled day of work. He did not attend work that day.

[31] Mr. Garnier put into evidence two letters issued by WorkSafeBC on Tuesday, June 4, 2019. The letters indicate that a claim had been started for his workplace injury but do not provide any information regarding the claimed injuries. Mr. Garnier testified that one was for his hand and the other for his eye. I understand the claims were triggered by Dr. Kwong’s report. Mr. Garnier testified that he did not follow up or pursue any WorkSafeBC claims. He said that it was not worth it for him because in the past he had ended up paying a lawyer too much money to deal with WorkSafeBC.

[32] Mr. Garnier testified that on June 5, 2019, Flavelle’s Mill Manager reached out to him, and when they spoke, he mentioned his medical issues. In cross-examination, Mr. Garnier acknowledged that the Mill Manager then sent him a letter that stated he was absent without leave and needed to return to the mill by no later than June 12 or his employment would be terminated.

[33] On June 10, 2019, Mr. Garnier saw his family doctor, Dr. Yau, who wrote two letters. I reproduce the full text from each. The first letter states,

Francis Garnier has been, or will be, off work for medical reasons between the following dates: Jun 1, 2019 until June 28, 2019. He is being assessed and treated for his injury and will be reassessed accordingly.

[as written]

The second letter states, “Francis Garnier would benefit from hand physiotherapy and splinting of the R hand for suspected 2nd digit extensor tendinopathy.”

[34] On the same day, Mr. Garnier emailed Flavelle and mailed them a package of documents, including Dr. Yau’s letters. He sent the same materials to the Union. In his accompanying letter to Flavelle, Mr. Garnier stated that he was responding to the Mill Manager’s June 5, 2019, letter. Mr. Garnier’s letter explained that, on the day he left work, there were too many issues regarding the management of the filing room, and he cannot work under those conditions. He explained that he needed the requested leave for the following three reasons:

• stress;
• personal injury – “His eye got a sharp object inside but after 2 weeks was feeling OK”; and
• his index finger on the right hand gives him too much pain and is inflamed and dislocated at the base.

[35] Mr. Garnier ended his letter to Flavelle by stating that he needs at least one month off but three months “would be nice.” He also included a postscript that stated he had been in Fort Nelson to shut off the water pump and water system. I understand this was in response to Flavelle’s suggestion that he had been working at another mill in Fort Nelson. Mr. Garnier denied he was working in Fort Nelson or that he wanted the time off to work in Fort Nelson.

[36] The Union responded to Mr. Garnier on June 12, 2019, recommending that he attend the mill that day to ask for a short-term disability form or, if his condition is work related, report to first aid and WorkSafeBC. The Union’s correspondence highlighted that Mr. Garnier was not on an approved leave of absence, and it was very important to be on an approved leave or risk termination of his employment.

[37] Mr. Garnier did not attend the mill on June 12 as required by Flavelle and recommended by the Union. He testified that he did not do so because, in his view, he was not obligated to communicate or meet with Flavelle while he was on a medical leave prescribed by his doctor.

[38] On June 13, 2019, Flavelle wrote to Mr. Garnier and issued a final warning. The letter states that:

• he requested a three-month leave of absence on May 21, 2019;
• he never spoke to any supervisor regarding the leave;
• he did not indicate why he required a leave;
• the leave was denied by management based on the company being short handed;
• he had been absent without leave since June 3, 2019;
• the mill made numerous attempts to reach him and told him on June 5 that he was absent without leave and needed to attend a meeting on June 12;
• on June 10, Mr. Garnier indicated for the first time that he wanted a leave of absence because of stress, personal injury (eye), and pain in his right hand. He attached two letters from his doctor indicating he would benefit from hand physiotherapy and be off work from June 1 to 28;
• he missed the meeting on June 12 without explanation, and was required to attend a meeting on June 18; and
• Mr. Garnier’s employment was in jeopardy.

[39] Mr. Garnier did not attend the meeting on June 18. He testified that because his doctor had prescribed a medical leave until June 28, he was not required to communicate or meet with Flavelle at the time. He also testified that, in any case, he did not receive the letter until June 24.

[40] On June 19, 2019, Flavelle issued a termination letter. The next day, the Union wrote to Mr. Garnier and advised him to contact them right away to discuss options of recourse.

[41] On June 28, 2019, Flavelle sent Mr. Garnier a follow-up letter advising him that his benefits would end as of June 30, 2019, due to the termination of his employment on June 19, 2019.

[42] The documents show that, on July 2, 2019, Mr. Garnier had an x-ray and sonogram of his right hand. The report notes the following under the history heading: “Pt is a welder with lots of manual work with hands. R hand 2-3rd digit dorsal aspect has had a lot of pain. Pain with resisted extension of 2nd digit.”

[43] Under the heading “Findings”, the report notes the following:

A focused exam over the symptomatic dorsal aspect of the second and third MCP joints demonstrates intact extensor tendons, with no evidence of tenosynovitis. Moderate synovial hypertrophy and capsular thickening of the second and third MCP joints with associated osteophytes, compatible with osteoarthritis.

[44] On Thursday, July 4, 2019, Mr. Garnier wrote to the Union advising that he had had an x-ray and ultrasound and also seen his doctor and a physiotherapist. Mr. Garnier told the Union that his doctor could not put him on WorkSafeBC because he had already been fired. He stated that he would give the Union until Friday to restore his employment with Flavelle.

[45] The Union filed a grievance on Mr. Garnier’s behalf.

[46] On around July 8, 2019, Mr. Garnier sent a three-page letter directly to Flavelle in response to the termination of his employment. Below, I summarize the key points in the letter.

· He left his leave of absence request on the board and when Flavelle did not reply, he took it as them agreeing to grant the leave.

· The company is to blame for not having anyone to replace him during his leave.

· On his last day, he had an argument with mill management about safety, wages, his health, and poor management.

· His hand injury was from the constant hammering of the saw on the bench and his index finger on the right hand became swollen and painful.

· He did not want to attend a meeting at the mill because the Mill Manager has a habit of screaming at workers and gesticulating with his hands.

· The doctor recommended no stress, and the Mill Manager gives him stress.

· He sent a copy of his doctor’s letter and Flavelle terminated his employment after receiving it and while he was on a medical leave. He stated that this is unlawful.

[47] For two weeks between July 22 and August 2, 2019, Mr. Garnier worked at another sawmill near Flavelle, doing the same kind of work. Mr. Garnier testified that he needed the money and wanted to try it. He testified that the finger pain started to come back during the first week and he hoped that rest during the weekend would help. Mr. Garnier indicated that the pain got worse on the subsequent Monday and by the end of the second week, his hand was really sore, and he could not do the job. Mr. Garnier says he quit the job at the other sawmill because he could not do it anymore. In cross-examination, he testified that he did not apply for any benefits or compensation as a result of the pain he experienced at the other mill job.

[48] On July 31, 2019, the Union updated Mr. Garnier about his grievance. The email indicated that, during the Step 3 grievance meeting, the employer was not prepared to change their position on the termination. The Union requested Mr. Garnier to attend the Union office in person to discuss the next steps, so the Union could decide whether to proceed to Step 4.

[49] Mr. Garnier met with the Union on August 6, 2019, and signed an authorization for the Union to obtain his medical records.

[50] The Union negotiated Mr. Garnier’s job back and communicated this to him.

[51] On August 19, 2019, Mr. Garnier wrote to the Union and stated that he was not going to return to work at Flavelle. He provided the following reasons: Flavelle fired him without notice while on a medical leave; Flavelle cancelled his medical coverage knowing about his finger issue; management was constantly screaming and bullying which took a toll on his health; he reorganized his life after Flavelle fired him including by taking his pension; and he made the Union aware that the workplace issues were longstanding.

[52] On August 23, 2019, Mr. Garnier sent a further email to the Union stating that the Union had let him down.

[53] The documents show that, on September 4, 2019, Dr. Yau issued a medical note that states, “Francis Garnier would benefit from focused hand physiotherapy to treat 2nd digit MCP R hand OA and synovitis related to repetitive strain from hammering at work.” Mr. Garnier testified that he followed the doctor’s advice, and physiotherapy did not help.

[54] On September 23, 2019, Mr. Garnier wrote to the Union asking if Flavelle had agreed to pay him retroactively. The Union confirmed that the employer had offered for him to return to work on August 26 with his missed time considered as leave but that there was no offer of retroactive pay. The Union’s correspondence stated that, on Mr. Garnier’s last day of work, he had filled out a form for three months of vacation, not for sick or medical leave. The Union also confirmed that they had asked Mr. Garnier to contact them by 5:00 p.m. on August 23 and he did not contact them.

[55] Mr. Garnier continued to communicate with the Union by email in October 2019. In those emails, Mr. Garnier expressed disagreement with the Union’s interpretation of the situation. Ultimately, he accused the Union of bias and fabricating evidence against him. In his testimony, Mr. Garnier stated that the Union had sided with the employer and did not help him.

[56] Mr. Garnier testified that he followed the medical advice about his finger throughout, including by seeing a physiotherapist. He said that he tried different options including exercises and devices, but nothing fixed or helped the problem with his finger joint.

[57] The most recent medical documentation provided by Mr. Garnier is from January 2020. It shows that he was referred for an assessment and treatment of his finger pain and may benefit from a finger splint for chronic pain.

[58] Mr. Garnier testified that about two years after leaving Flavelle he found a job at another sawmill. He said that he was teaching on the bench saw, which was not a hard job. He did that work for about two years and says he did not make much money.

IV ANALYSIS AND DECISION

[59] The Motion seeks the dismissal of the complaint on the basis that Mr. Garnier’s evidence at the hearing does not support a finding that Flavelle violated s. 13 of the Code . Specifically, Flavelle argues that Mr. Garnier’s evidence does not support a conclusion that he had a physical disability for the purposes of the Code . In the alternative, Flavelle argues that, even if he could prove a disability under the Code , there is no reasonable basis in his evidence to conclude that the alleged disability was a factor in the decision to terminate his employment.

[60] Mr. Garnier opposes the Motion and argues that the evidence clearly establishes that Flavelle terminated his employment while he was on a medical leave of absence due to a work-related injury. He says this amounts to discrimination in employment based on disability contrary to s. 13 of the Code . His submission does not specifically address Flavelle’s arguments about what constitutes a disability under the Code .

[61] I begin my analysis by setting out the test for employment discrimination. Put differently, what Mr. Garnier has to prove to establish a violation of s. 13 of the Code . Next, I set out the test for a no evidence motion and the Tribunal’s approach to this type of request. Lastly, I apply the legal principles to the evidence presented by Mr. Garnier at the hearing.

A. Test for discrimination

[62] To succeed in his case, Mr. Garnier must prove that (1) he had a disability at the relevant time, (2) he experienced an adverse impact in his employment, and (3) his disability was a factor in the adverse impact: Moore v. British Columbia (Minister of Education ), 2012 SCC 61 at para. 33. If any one of those elements is missing, there is no discrimination.

[63] If Mr. Garnier does not establish the three elements of his case, the Tribunal will not consider the duty to accommodate. This is because there is no freestanding duty to accommodate. The duty to accommodate only arises as part of a defence if discrimination is established.

[64] In this case, the parties agree that the termination of Mr. Garnier’s employment amounts to an adverse impact. However, they disagree on the other elements of the test for discrimination, namely, whether Mr. Garnier had a disability for the purposes of the Code at the relevant time and whether the alleged disability was a factor in the termination decision.

[65] Before I consider Mr. Garnier’s evidence and the parties’ arguments about disability and the connection between the alleged disability and the termination of his employment, I provide information about how the Tribunal approaches no evidence motions.

B. Criteria for a no evidence motion

[66] The Tribunal has discretion about whether to entertain a no evidence motion. Brar v. British Columbia Veterinary Medical Assn. (No. 16) , 2010 BCHRT 182 at para. 55. Considering the impact on the hearing process, the impact on party and Tribunal resources, and fairness to the parties, I was satisfied that I should entertain the no evidence motion in this case.

[67] When considering a no evidence motion, the Tribunal has applied the principles set out in Gerin v. I.M.P. Group Ltd. (1994), 24 C.H.R.R. D/449 (N.S. Bd. Inq.) [ Gerin ] at para. 23. In that case, the board set out the following test for a no evidence motion: is there a reasonable basis in the evidence on which a conclusion in the complainant’s favour could be reached. The board held that applying this test does not require a full assessment of the evidence. In fact, there should be no attempt to conclude whether the complaint has been made out. Similarly, there should be no attempt to weigh and assess credibility and reliability of witnesses. Evidence should only be rejected if the decision-maker “is clearly convinced without deep reflection and analysis that it is untrustworthy”: Gerin at para. 23.

[68] I will apply the above legal framework to my analysis of the no evidence motion before me.

[69] In my below analysis, I consider the evidence put forward by Mr. Garnier as part of his case, which includes his direct testimony, answers in cross-examination, and documents entered as exhibits. I begin with the first element of the test for discrimination.

[70] When assessing whether Mr. Garnier’s evidence is reasonably capable of supporting a finding that Flavelle discriminated against him in his employment, I will consider the evidence in a manner that is most favourable to Mr. Garnier: McLash v. School District #62 (Sooke) and others (No. 2), 2006 BCHRT 157 at para. 35.

1. Is there a reasonable basis in the evidence to conclude that Mr. Garnier had a disability within the meaning of the Code?

[71] Flavelle argues that the evidence presented by Mr. Garnier does not establish that he had a disability for the purposes of the Code . It claims that, at best, Mr. Garnier had a temporary injury which does not qualify as a disability within the meaning of the Code .

[72] Mr. Garnier did not directly respond to the argument that his claimed injury does not constitute a disability for the purposes of the Code . Instead, he relies on the evidence that he sought medical attention for his hand injury, his doctor prescribed a medical leave of absence, and the termination of his employment occurred during the period of the medical leave.

[73] I begin with the question of what constitutes a disability for human rights purposes.

[74] The term “disability” is not defined in the Code . The Tribunal interprets the term broadly so as to better achieve the purposes of the Code : British Columbia Human Rights Tribunal v. Schrenk, 2017 SCC 62 at para. 31. One of the purposes of the Code is to remove barriers that people face in certain areas of life because of their disabilities: Code , s. 3. Those barriers may arise from actual functional limitations associated with a disability, or society’s response to the disability: Stevenson v. Marcon Construction , 2020 BCHRT 80 at para. 7.

[75] The concept of physical disability generally indicates a 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: De Medeiros v. Rovalution Automotive Ltd. and another , 2023 BCHRT 182 at para. 23. The Tribunal may also consider the severity, or persistence of a condition, as well as any social stigma that may attach to that condition: Morris v. BC Rail , 2003 BCHRT 14 at paras. 211 and 214.

[76] Ailments such as the common cold which do not constitute an obstacle to full participation in society are not considered disabilities. However, whether a temporary or treatable condition constitutes a disability is a question of fact in each case: Wali v. Jace Holdings , 2012 BCHRT 389 at para. 82. A disability is not limited to ongoing or chronic conditions and may include conditions that have resolved or require a temporary leave from work: Derek v. Aspen Planers , 2018 BCHRT 266 at para. 44.

[77] Because the assessment of whether a condition constitutes a physical disability is a fact specific inquiry, I next consider the factual evidence adduced by Mr. Garnier at the hearing and the parties arguments on whether there is a reasonable basis in that evidence on which the Tribunal could conclude he had a disability within the meaning of the Code .

[78] Mr. Garnier’s evidence at the hearing referred to three physical conditions that he was experiencing prior to and/or during his absence from work and/or at the time of the termination: a finger injury, an eye injury, and stress. Most of the evidence presented by Mr. Garnier at the hearing related to his finger injury. Correspondingly, the parties focused their arguments on the finger injury.

[79] For the sake of completeness, I have reviewed the evidence regarding the eye injury and stress in addition to the finger injury. Below, I explain why I find no basis in the evidence that could support a conclusion that the eye injury and/or stress constitute a disability for the purposes of the Code .

[80] I begin with the references Mr. Garnier made to an eye injury.

[81] In the complaint, Mr. Garnier stated that he had sustained an eye injury at work, which Flavelle and WorkSafeBC were aware of. He also stated that he saw Dr. Kwong at the walk-in clinic on May 30, 2019, because of his hand and “some particles inside my eye,” and that Dr. Kwong did x-rays on his eye and hand.

[82] At the hearing, Mr. Garnier testified about the eye injury and entered a May 30, 2019, letter from Dr. Kwong into evidence. The letter from Dr. Kwong referred Mr. Garnier to “VIDA eye care” and noted the reason for referral as “For WCB claim. For foreign sensation on the L eye.” The letter stated that Mr. Garnier had noticed something in his left eye for two weeks, some sharp pain, some scratchy sensation, no vision problem, and some discharge at the beginning now gone. During his testimony about the eye injury and Dr. Kwong’s letter, Mr. Garnier stated that he thought he had a piece of steel in his eye and that it was removed somehow or fell out and that it was now okay.

[83] In his June 10, 2019, letter to Flavelle, Mr. Garnier wrote, “My left eye got a sharp object inside but after 2 weeks was feeling OK.” Mr. Garnier did not provide further evidence regarding the eye injury.

[84] Flavelle argues that, on Mr. Garnier’s own evidence, any issue with his eye had been resolved and cannot be the basis for a disability protected under the Code . Flavelle argues that the evidence shows that any issue with his eye was temporary, did not prevent Mr. Garnier from attending work, and did not impact his ability to drive 36 hours to and from Fort Nelson after seeing Dr. Kwong. When asked about the use of his eyes in cross-examination, Mr. Garnier agreed that driving to Fort Nelson, turning off the water system and water pump, and working at the other mill all required use of his eyes.

[85] Mr. Garnier’s response to the Motion does not address the arguments advanced by Flavelle about his eye injury or whether it meets the definition of disability under human rights law. Rather, he focuses on the assertion that he needed a break from work for reasons including time to heal the alleged injuries to his eye and hand.

[86] When I consider Mr. Garnier’s evidence regarding the eye injury in the most favourable light, there is no reasonable basis on which I could conclude that it amounts to a disability under the Code . I agree with Flavelle that, on his own evidence, the eye injury was temporary, not severe, and did not impair his ability to carry out the normal functions of life including working and driving.

[87] Next, I consider Mr. Garnier’s references to stress.

[88] I begin by noting that the Tribunal has frequently held that stress, in itself, is not a disability for the purposes of the Code and workplace stress on its own is not sufficient to demonstrate a disability: Matheson v. School District No. 53 (Okanogan Similkameen) and Collis , 2009 BCHRT 112, at para. 14 and Young v. Vancouver Coastal Health Authority , 2018 BCHRT 27 at para. 117.

[89] Mr. Garnier did not refer to stress as an alleged disability in the complaint. The only references to stress in the complaint are found in the parts describing the alleged adverse impacts of the termination and losing his health benefits.

[90] At the hearing, Mr. Garnier testified and introduced documents that refer to the stress he was experiencing at the time he requested the leave of absence. Mr. Garnier agreed in cross-examination that the first time he told Flavelle about stress was in his June 10, 2019, letter where he referred to stress as one of three reasons he needs a leave of absence. In that email, Mr. Garnier stated that the stress was related to the management of the filing room.

[91] The documents show that Mr. Garnier had told the Union earlier that he was experiencing “too much stress” because of poor management at the mill. His May 30, 2019, email to the Union, advised that he was going to ask his doctor to put him on a stress leave. In his subsequent correspondence with the Union and Flavelle Mr. Garnier raised a number of issues that he says caused him stress including job postings, wages, unsafe working conditions, and being screamed at by the Head Filer.

[92] During cross-examination, Mr. Garnier agreed that the stress he referred to in his emails to Flavelle and the Union related to his disagreement with how the company ran the business. He also stated that it related to what he considered unsafe work conditions, and the conduct of the Head Filer.

[93] Flavelle argues that the stress claimed by Mr. Garnier is not a disability for the purposes of the Code . Flavelle argues that it was generally related to the Head Filer telling Mr. Garnier how to do his job; and that he did not provide any medical evidence of this alleged disability; and did not describe how stress impacted any other aspect of his life.

[94] Mr. Garnier’s response to the Motion does not address the arguments advanced by Flavelle about stress or whether it meets the definition of disability under human rights law. Rather, he focuses on the fact he told the Union and Flavelle that stress was one of the reasons he wanted a leave of absence.

[95] When I consider Mr. Garnier’s evidence regarding stress in the most favourable light, there is no reasonable basis for a finding that it amounts to a disability under the Code . Mr. Garnier did not provide evidence about the symptoms of his stress, including its severity or duration. The evidence shows that it did not prevent him from working between May 21 and May 30, or from driving 36 hours to and from Fort Nelson to turn of the water pump and water system after he left work on May 30, 2019. It also did not prevent him from working at a nearby mill doing similar work in July 2019. Lastly, Mr. Garnier did not present any evidence to show he discussed stress with his health care providers. There is no reference to stress in the medical records he entered as exhibits. I observe that the letter from Dr. Yau, recommending a medical leave, refers to Mr. Garnier being assessed and treated for his “injury.” There is nothing in the evidence before me to suggest this was a mental injury. I also observe that the complaint was not brought or accepted in the area of mental disability.

[96] Having found that the evidence about Mr. Garnier’s eye injury and stress do not reasonably support a conclusion that either was a disability under the Code , I now turn to the finger injury.

[97] In the complaint, Mr. Garnier described an injury to his right-hand index finger as follows: dislocated finger, occupational arthritis, pain and swelling, and that it rendered him unable to do his job.

[98] At the hearing, Mr. Garnier testified about how the issue with his finger began. He said that mill management decided to shut down the water system on the quad saw and this made it harder for him to fix the saw. He described hammering saws every day and that his fingers felt the consequences.

[99] Mr. Garnier testified that around the time he texted the Head Filer in November 2018 about his finger pain, Dr. Yau had prescribed some cream for the pain.

[100] As set out above, Mr. Garnier continued to work as usual through the end of 2018 and into 2019. On the day he left his three-month leave request on the board in the filing room, Mr. Garnier was at work, and he continued to work as usual up to the day he intended to begin the leave (i.e., he continued working for more than a week between May 21 and May 30, 2019). There is no evidence that Mr. Garnier missed work prior to May 30, 2019, due the finger injury, other than to attend a medical appointment on November 14, 2018.

[101] On his last day of work, Mr. Garnier raised the issue of his finger injury after his leave request was denied by mill management.

[102] Mr. Garnier testified and produced several documents that indicate he wanted to take the leave of absence for several reasons, one of which was to have time for his finger injury to recover. For example, in his June 10, 2019, letter to Flavelle, Mr. Garnier wrote that his finger was swollen, dislocated, and causing pain. In his earlier May 30, 2019, email to the Union, Mr. Garnier referred to finger joint inflammation.

[103] Mr. Garnier saw two doctors about his finger.

[104] First, he saw Dr. Kwong at the walk-in clinic on the day he left the mill. Mr. Garnier testified that Dr. Kwong issued a requisition for an x-ray of his hand. There is nothing in the materials from Dr. Kwong that describes or otherwise provides information about the finger injury. On that point, I have Mr. Garnier’s testimony about the condition of his finger on May 30, 2019, his last day of work.

[105] Mr. Garnier testified that he was experiencing pain and inflammation in his finger on May 30 and had been since the fall of 2018. As set out above, he testified about the pain cream that did not help. At the same time, Mr. Garnier agreed in cross-examination that he worked as usual, and without any accommodation, up to and including May 30, 2019. Mr. Garnier did not give evidence about if or how his finger injury impacted other areas of his life. On the contrary, he agreed in cross-examination that he had the use of both hands to drive to and from Fort Nelson immediately after seeing Dr. Kwong, and that while in Fort Nelson he used both hands to shut off the water system and water pump on his property.

[106] Mr. Garnier testified that he went to see Dr. Yau, on June 10, 2019. Dr. Yau recommended that Mr. Garnier try physiotherapy and splinting for his finger. His letter stated that Mr. Garnier was off work for medical reasons between June 1 and June 28, 2019. The letter does not provide information about the nature or extent of the injury, including when it began, only that he is off work, being treated, and will be reassessed.

[107] The next information I have about the finger injury is from early July 2019. Mr. Garnier had an x-ray and sonogram on July 2 and had a physiotherapy appointment on July 4. The report from the x-ray and sonogram confirm that Mr. Garnier was experiencing pain, and the findings are set out above at paragraph 43. It is not clear, however, what those findings mean in terms of the severity of the injury.

[108] Mr. Garnier testified that his injury prevented him from doing other jobs for which he has qualifications, including as a welder and commercial transportation mechanic because he could not use a wrench. I understand that both are physically demanding jobs.

[109] Within three weeks of getting the x-ray and sonogram, Mr. Garnier returned to work as a saw filer at a different sawmill. After two weeks doing that work, he decided that he could not continue due to pain and inflammation in his finger.

[110] Mr. Garnier’s evidence was that he continued to try various treatment options including physiotherapy and splinting. He testified that none fixed the problem with his finger.

[111] Mr. Garnier testified that he returned to the workforce in around 2022 and worked at a different sawmill where he did a less physically demanding job, teaching others about how to use, fix, and manage bench saws.

[112] Flavelle argues that Mr. Garnier’s evidence about his finger injury does not demonstrate that it was of a severity, permanence, or persistence that it was a disability for the purposes of the Code . It also argues that his admitted actions on and after May 21, 2019, are inconsistent with him having a disability. Flavelle points to the evidence that Mr. Garnier did not miss work leading up to May 30, 2019, and did not give evidence to suggest he was unable to perform his work as a result of the injury. Flavelle also notes that during the three-month period he told Flavelle that he needed time off to take care of his hand, Mr. Garnier engaged in physical work including driving to Fort Nelson, shutting off the water system, and working at another sawmill for two weeks in a physically demanding job. Flavelle relies on Li v. Aluma Systems and another , 2014 BCHRT 270, where the Tribunal dismissed a complaint on the basis that the complainant’s “medical condition lacked the severity, or permanence or persistence which would qualify it as a physical disability within the meaning of the Code ” (para. 41).

[113] In short, Flavelle argues that, at best, the finger injury was temporary and there is no medical evidence before the Tribunal to suggest the injury is a permanent or severe condition.

[114] Mr. Garnier’s submission was not responsive to Flavelle’s arguments that directly challenge the sufficiency of his evidence to establish a physical disability under the Code .

[115] Mr. Garnier argued that he ought to have the opportunity to cross-examine Flavelle’s witnesses. However, Mr. Garnier did not explain what, if any, evidence he was expecting to elicit from those witnesses regarding his finger injury, including why it constitutes a disability under the Code . In circumstances where Mr. Garnier does not allege a fairness issue or that he requires the evidence of Flavelle’s witnesses to prove this part of his case, and the information about his injury is clearly within his possession and control, I have not considered this argument further.

[116] At the core of Mr. Garnier’s argument is his belief that it ought to be sufficient that he provided a copy of a medical note from a medical doctor that prescribed a medical leave of absence. Specifically, he argues that the proof of his disability is found in the letters, requisitions, and recommendations issued by Dr. Kwong and Dr. Yau, on May 30 and June 10 respectively, including the one-month prescribed medical leave. He also refers to the letters from WorkSafeBC. However, I note that neither letter from WorkSafeBC refers to a specific injury nor do they confirm or deny whether any injury claim has been accepted. Making a claim to WorkSafeBC in itself is not evidence of a disability.

[117] Mr. Garnier also points to his evidence that he suffered and still suffers from damage to his right index finger because of the hammering, and he needed the leave of absence to allow his hand to heal. Mr. Garnier points specifically to the evidence about the condition of his hand, including pain, flare-ups, and inflammation.

[118] For the following reasons, I am not satisfied that the evidence presented by Mr. Garnier at the hearing, taken at its highest, reasonably supports a conclusion that he had a disability as contemplated by the Code at the relevant time.

[119] Below, I summarize the most favourable evidence regarding the finger injury. As required in a no evidence motion, I do so without conducting a full assessment or weighing of the evidence.

a. In the fall of 2018 Mr. Garnier was using cream prescribed by his doctor to address pain and inflammation in his finger.

b. Mr. Garnier took time off work on November 14, 2018, to see his doctor about the condition of his finger.

c. Mr. Garnier hoped that an extended time away from work in the summer of 2019 would allow his finger injury to heal.

d. Dr. Yau recommended a one-month medical leave from work between June 1 and 28, 2019, although he did not provide information about the nature or extent of the injury. Dr. Yau recommended that Mr. Garnier try physiotherapy and splinting.

e. Mr. Garnier tried physiotherapy and splinting without improvement to his finger.

f. A July 2, 2019, report from the sonogram and x-ray confirms that Mr. Garnier was experiencing finger pain and “Moderate synovial hypertrophy and capsular thickening of the second and third MCP joints with associated osteophytes, compatible with osteoarthritis.” No further information was provided to understand what the findings mean in terms of Mr. Garnier’s limitations or restrictions, if any.

g. Dr. Yau continued to recommend that Mr. Garnier try physiotherapy in September 2019.

h. Mr. Garnier complied with Dr. Yau’s recommendations.

i. In January 2020, Mr. Garnier continued to report finger pain and attend physiotherapy to treat the chronic pain. The documentation from this period does not provide any other information about Mr. Garnier’s limitations or restrictions, if any.

[120] In the above summary, I did not include Mr. Garnier’s evidence regarding other visits to his doctor between May 21 and 30, 2019. This is because I found that evidence untrustworthy. Mr. Garnier did not provide this evidence until the cross-examination, and he could not explain why he did not mention it sooner, particularly given the importance of medical evidence about his injury. And, when asked about the claimed appointments, his evidence was shifting and vague. I also observe that it was unsupported by documents as compared to the other medical appointments that he testified about.

[121] Even when I consider only the most favourable evidence regarding the finger injury, I am not persuaded that there is a reasonable basis on which to conclude that it was disability under the Code . This is because the information is quite limited. One can reasonably conclude, based on the evidence, that Mr. Garnier was at least temporarily impaired from working due to his finger injury. However, the evidence is less clear in terms of the injury’s severity and persistence, and what functional limitations and specific barriers Mr. Garnier faced.

[122] Where I agree there is no reasonable basis in the evidence to conclude that Mr. Garnier had a disability within the meaning of the Code at the relevant time, it is not necessary for me to consider the other elements of his case.

[123] In the event that I am wrong in my conclusion about the evidence regarding his injury, I would also have dismissed the complaint based on insufficient evidence to reasonably conclude that Mr. Garnier’s disability was a factor in the termination decision. My analysis of that issue follows.

2. Adverse Impact and Connection to Disability

[124] Flavelle argues that there is no reasonable basis upon which the Tribunal could conclude that Mr. Garnier’s alleged disability was a factor in the termination of his employment. Flavelle says that, on his own evidence, Mr. Garnier walked off the job when his request for a three-month leave was denied, he refused all requests to meet, did not ask for any accommodation, was warned that his job was in jeopardy, and never returned to work despite encouragement from his Union to do so.

[125] The question in this case is whether Mr. Garnier’s evidence reasonably supports a conclusion that (1) his leave was related to a disability and (2) the disability-related leave was a factor in the decision to terminate.

[126] For the purposes of this alternative analysis, I accept that there is a reasonable basis in the evidence to establish that Mr. Garnier’s finger injury amounts to a disability under the Code .

[127] I begin with Mr. Garnier’s main argument that it is illegal for an employer to terminate an employee when they are on a medical leave and have a certificate from a doctor. Mr. Garnier relies on s. 239.1(1) of Canada Labour Code for this proposition. The Canada Labour Code is federal legislation that applies to federal not provincially regulated employees: Canada Labour Code , s. 4. In these circumstances, I have not considered his arguments under the Canada Labour Code further.

[128] I turn then to Mr. Garnier’s assertion that Dr. Yau’s June 10, 2019, medical certificate granted him a medical leave of absence such that the termination was connected to his disability.

[129] I am not persuaded that the evidence reasonably supports a conclusion that Mr. Garnier was granted a medical leave of absence. When it was put to him in cross-examination that only the employer can grant or deny leaves of absence, Mr. Garnier disagreed, relying on “federal law”, which I take to be a reference to the above section of the Canada Labour Code which does not apply here. I also observe that a medical certificate is not equivalent to an employer’s leave approval. Employers approve leaves of absence for illness and injury. Often those approvals are based on information contained in medical notes.

[130] Further, Mr. Garnier does not dispute that the communications from Flavelle and the Union following the submission of his medical note consistently advised him that he was not on an approved leave of absence, and he needed to meet with Flavelle to discuss his absence.

[131] Mr. Garnier also argues that the timing of the termination supports a conclusion that his injury was a factor. He highlights that the termination letter was issued eight days after he provided the June 10, 2019, letter from Dr. Yau prescribing a medical leave.

[132] I agree with Mr. Garnier that timing can support an inference of discrimination where the termination of employment occurs during a medical leave of absence. See, for example, Senyk v. WFG Agency Network (No. 2) , 2008 BCHRT 376, where the Tribunal noted that anytime an employer terminates an employee due to absenteeism related to disability, a case of discrimination on the basis of disability is established.

[133] When I consider the full context of Mr. Garnier’s evidence, taken at its highest, I find that the timing of the termination relative to the provision of the medical note does not reasonably support an inference that Mr. Garnier’s disability was a factor in the termination of his employment. I summarize that evidence below.

a. Mr. Garnier had requested three months of leave as vacation. On May 30, Flavelle denied the leave request, even after Mr. Garnier told them he needed time off because of his hand injury.

b. Mr. Garnier did not report to work on June 3.

c. When Flavelle’s Mill Manager contacted him on June 5, Mr. Garnier mentioned his medical issue. The Mill Manager wrote to him that he was absent without leave and required him to meet on June 12 or his employment would be terminated.

d. Mr. Garnier provided the medical note on June 10; the note did not explain the nature or extent of his injury; his letter that accompanied the note referred to a host of reasons for taking time off including poor management at the mill, stress, and injuries to his eye and finger.

e. Mr. Garnier declined to meet or communicate with Flavelle about his absence once he had provided Dr. Yau’s medical note. In his view, he was not legally required to do so.

f. Flavelle terminated Mr. Garnier’s employment on June 19.

[134] Despite warnings from Flavelle and the Union that being on an unapproved leave put his job in jeopardy, Mr. Garnier was adamant that it was wrong and illegal for Flavelle to ask him to meet while he was on a medical leave. There is no reasonable basis in the evidence, however, to support a finding that it was unreasonable for Flavelle to require Mr. Garnier to meet.

[135] Mr. Garnier’s initial request for time off was for vacation, he did not apply for short-term disability benefits, and did not pursue his claim for WorkSafeBC benefits.

[136] Mr. Garnier acknowledged that he knew Flavelle considered him as absent without leave on June 5, 2019, before he saw Dr. Yau.

[137] Mr. Garnier raised his medical issue and provided medical notes; however, there is no reasonable basis in the evidence to conclude that Flavelle had information from Mr. Garnier about the nature and extent of his injury and his need for a medical leave, including whether there was a possible return to work with an accommodation.

[138] Mr. Garnier’s evidence is that he refused to comply with Flavelle’s requirement that he meet regarding his absence, and that he refused to do so against the advice of his Union. He said that it was a choice not to meet or communicate with Flavelle for reasons including that he was not legally obligated to do so, and because meeting with Flavelle management caused him stress.

[139] The difficulty here is that the evidence points to the termination being based on factors other than the disability, specifically being absent without leave and refusing to attend required meetings (as set out in Flavelle’s June 5, June 13, and June 19, 2019, letters). In these circumstances, the provision of the medical notes on June 10 does not provide a reasonable basis to draw an inference of discrimination.

[140] In all of these circumstances, I am not persuaded that Mr. Garnier’s evidence reasonably supports a finding that his disability-related absence was a factor in the termination decision.

[141] Where I agree there is no reasonable basis in the evidence to conclude that Mr. Garnier’s alleged disability was a factor in the termination decision, it is appropriate to grant the Motion.

V CONCLUSION

[142] I grant the no evidence motion and dismiss the complaint.

Kathleen Smith

Tribunal Member