AB v. City (No. 3), 2025 BCHRT 46
Date Issued: February 26, 2025
File: CS-000890
Indexed as: AB v. City (No. 3), 2025 BCHRT 46
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:
AB
COMPLAINANT
AND:
City
RESPONDENT
REASONS FOR DECISION
APPLICATION TO DISMISS A COMPLAINT
Section 27(1)(d)(ii)
Tribunal Member: Edward Takayanagi
Counsel for the Complainant: Johannes H. Schenk
Counsel for the Respondent: Gabrielle Scorer, Jaime H. Hoopes
I INTRODUCTION
[1] In this decision, I explain why I dismiss AB’s complaint under s. 27(1)(d)(ii) of the Human Rights Code , based on a reasonable settlement offer.
[2] AB filed a complaint against the City alleging discrimination in employment based on physical disability. AB says he has eye and spinal conditions which the City failed to accommodate during his employment. He also says the City denied him sick leave and vacation benefits.
[3] In advance of the scheduled hearing, the City made a with prejudice offer to AB to resolve the complaint. At the time of the offer, the City advised AB that if he rejected the offer, it may apply to dismiss the complaint under s. 27(1)(d)(ii) of the Code .
[4] AB did not accept the offer, and the City applied to dismiss the complaint on the basis that it would not further the purposes of the Code to proceed with the hearing in circumstances where it made a reasonable settlement offer.
[5] AB opposes the dismissal application and disputes that the offer presented by the City is reasonable.
[6] In this decision I consider whether the City’s settlement offer is reasonable and if so, whether it would further the purposes of the Code to allow the complaint to proceed where AB rejected the offer. I find the settlement offer was reasonable and it would not further the purposes of the Code to proceed.
[7] For the following reasons, I grant the application and dismiss the complaint. To make this decision, I have considered all the information filed by the parties. In these reasons, I only refer to what is necessary to explain my decision.
II BACKGROUND
[8] AB was employed with the City from 2005 to 2020. He is a business analyst, which is a sedentary position monitoring technical systems via a computer.
[9] AB suffered a spinal injury in 2014. AB says the City failed to accommodate his injury by providing a place for him to lie down. In addition, he says the City required him to work more than five hours per day contrary to his doctor’s recommendations.
[10] AB also alleges that because he took leaves of absence and irregular breaks related to his injury, the City failed to correctly calculate his vacation and sick leave benefits.
[11] AB filed his complaint on April 20, 2020.
[12] On June 26, 2024, the Tribunal issued its decision on the City’s application to dismiss AB’s complaint without a hearing. In AB v. City , 2024 BCHRT 196 [the ATD decision ] the Tribunal granted the application to dismiss in part and narrowed the scope of the complaint. The Tribunal dismissed portions of AB’s complaint as being late filed under s. 27(1)(g), and other allegations as having no reasonable prospect of succeeding at a hearing under s. 27(1)(c).
[13] The Tribunal allowed the following of AB’s allegations to proceed to a hearing:
a. The City denied him vacation and sick leave benefits.
b. The City failed to meet its duty to accommodate between November 30, 2015, to March 11, 2016, regarding a place for him to lie down.
c. The City failed to meet its duty to accommodate him between August 19, 2019, to April 20, 2020, regarding the requirement for him to work a seven-hour day.
[14] On December 8, 2024, AB filed his statement of remedy. On December 9, 2024, the City wrote to AB saying the statement of remedy was incomplete because AB did not state the amount he was seeking for injury to dignity. It also noted that AB had not disclosed any documents in support of the amount he was seeking for out-of-pocket expenses. Based on the materials filed the City understood AB to be seeking the following remedies:
a. An order that the City cease its contravention and refrain from committing similar contraventions.
b. A declaration that the conduct complained of is discriminatory.
c. An apology.
d. An award of $33,201.00 for expenses incurred because of the discrimination.
e. Compensation for injury to dignity, feelings, and self-respect of an unspecified amount.
f. Interest on the monetary awards.
[15] On December 16, 2024, the City wrote to AB and made a with prejudice offer to settle the complaint. Below, I summarize the terms of the offer.
a. A lump sum payment for loss of vacation and sick leave benefits: $4,754.48
b. An amount for injury to dignity, feelings, and self-respect: $20,000
c. Upon provision of reasonable proof that legal fees were incurred prior to filing the complaint, an amount for out-of-pocket legal expenses: $3,245.52
d. The offer remains open for acceptance notwithstanding the filing of the application to dismiss the complaint. The offer will expire two weeks following the Tribunal’s decision on the City’s application to dismiss.
[16] AB did not respond to the offer to settle. The City filed the present application to dismiss the complaint on January 3, 2025.
[17] On January 23, 2025, AB filed an amended statement of remedy. AB indicated he is seeking $50,000 for wage loss, $23,000 for out-of-pocket legal expenses, and an unspecified amount for injury to dignity, feelings, and self-respect. AB said he was unable to disclose any documents in support of the remedies sought because all documents are in the City’s possession.
[18] AB filed his response to the dismissal application on January 25, 2025, disputing that the City’s settlement offer is reasonable.
III DECISION
[19] The City applies to dismiss the complaint under s. 27(1)(d)(ii) because, it says, it would not further the purposes of the Code to proceed where it has made a reasonable offer to settle the complaint.
[20] There are two prerequisites for the Tribunal to consider dismissing a complaint based on a reasonable settlement offer. First, the settlement offer must be made “with prejudice” because the Tribunal cannot rely on information about settlement discussions that is inadmissible based on privilege: Dar Santos v. University of British Columbia , 2003 BCHRT 73 at para. 64; Carter v. Travelex Canada and Travelex UK (No. 3) , 2007 BCHRT 275 at para. 25. Second, the offer must remain open for the complainant’s acceptance even if the complainant initially rejects it and regardless of the outcome of the application to dismiss: Spina v. City of Kamloops (No. 2) , 2022 BCHRT 59 at para. 14. There is no dispute that both prerequisites are met in this case.
[21] In cases like this, where the prerequisites are met, the Tribunal engages in a two-step analysis to determine whether to dismiss the complaint. The first step is to assess whether the offer is reasonable: Dar Santos at para. 59. If it is, the next step is to address whether allowing the complaint to proceed would serve the purposes of the Code .
[22] I begin my analysis by determining whether the offer is reasonable.
A. Is the settlement offer reasonable?
[23] The Tribunal’s remedial powers under s. 37(2) of the Code include making cease and refrain orders against the person who discriminated, declarations regarding the discriminatory conduct, compensatory orders related to wage loss and out-of-pocket expenses related to the discrimination, and issuing a monetary award for injury to the complainant’s dignity, feelings, and self-respect.
[24] In assessing whether an offer is reasonable, the Tribunal assumes that the complainant will prove their allegations. At the same time, the settlement offer does not have to mirror exactly what the Tribunal would order and does not need to contain an admission of liability: Carter at para. 30. Rather, the offer must provide reasonable compensation and other remedies the Tribunal would likely order if the matter was to proceed to a hearing and be successful: Heitner v. BC Provincial Renal Agency and others (No. 3) , 2020 BCHRT 134 at para. 48.
[25] With respect to the non-monetary remedies noted in his statement of remedies, AB seeks a cease-and-desist order and declaratory order that the conduct is discrimination. While the settlement offer does not incorporate the orders sought, the absence of such orders does not in itself provide a basis for denying the dismissal application: McQueen v. Three Point Motors , 2017 BCHRT 120 at para. 33. Further, AB does not dispute that the offer fully addresses the allegations in the complaint and the available remedies.
[26] The sole issue the parties disagree about is whether the monetary amounts in the settlement offer fall within the range of what the Tribunal may award at a hearing. Therefore, I will consider each head of monetary award in turn.
1. Out-of-Pocket Legal Expenses
[27] Section 37(2)(d)(ii) of the Code gives the Tribunal discretion to compensate a person for expenses incurred because of discrimination. The Tribunal has held that reasonable legal fees incurred before filing a complaint are compensable: McGowan v. Pretty Estates , 2013 BCHRT 40 at paras. 40-42. Legal fees incurred after the filing of a complaint are not “expenses incurred” as a result of a contravention of the Code within the meaning of s.37(2)(d)(ii) and therefore not recoverable: Fraser v. BC (Ministry of Forests, Lands and Natural Resource Operations) , 2019 BCHRT 195, paras 16-20.
[28] The onus is on a complainant to substantiate a claim for out-of-pocket expenses, including legal fees. Here, AB has not provided particulars or documentary evidence in support of the amount he is seeking for legal fees. Despite the absence of information, the City offers an amount of $3,245.52.
[29] AB says the offer is not reasonable. He says the extent, duration, and complexity of work done by counsel warrants an award of $23,000. AB points to six pieces of correspondence sent by his counsel between July 17, 2018, and November 19, 2018, as examples of the work performed by counsel to facilitate his return to work.
[30] In my view, AB’s evidence is insufficient to establish that he incurred legal expenses of $23,000. Each correspondence is brief, at most three pages, and deal with AB’s request for accommodations for his return to work. Neither the number of correspondences nor their contents support a conclusion that the City’s offer of $3,245.52 falls outside the reasonable range of what the Tribunal might order if AB succeeds at the hearing.
[31] Based on the materials before me I find the City’s offer of $3,245.52 is well within the reasonable range the Tribunal might award.
2. Wage Loss
[32] Section 37(2)(d)(ii) of the Code gives the Tribunal discretion to award compensation to a successful complainant for all, or part, of any wages or salary lost because of a contravention.
[33] The purpose of such an award is to restore a complainant, to the extent possible, to the place that they would have been in had the discrimination not occurred: Gichuru v. The Law Society of British Columbia (No. 9) , 2011 BCHRT 185 at para. 300.
[34] The settlement offer includes an amount based on lost vacation pay of $1,754.48 and sick pay of $3,000.00. The City explains the offer compensates AB for his full entitlement for the period of August 15, 2019, when AB returned to work, to the end of his employment on April 23, 2020. The City provides calculations showing how they determined the amount AB would have been paid but for his disability-related leaves. It further says when calculating AB’s entitlement for sick pay it rounded its calculation up by $72.02 which should reasonably account for any potential award of interest on the award.
[35] AB does not dispute the City’s calculation of the vacation and sick pay but disputes that the amount falls within the reasonable range that the Tribunal might award in this case. He says the ATD decision did not temporally limit his entitlement to vacation and sick pay and therefore, a reasonable offer should reflect his losses for the period from October 2014, when he suffered his spinal injury, to the end of this employment on April 23, 2020. In his response to the application AB says an amount of $39,450.00 reflects his lost vacation and sick pay for the full period.
[36] I note that AB did not state he was seeking compensation for wage loss in his original statement of remedies dated December 8, 2024. It was only after the City made its settlement offer, and after the City filed its dismissal application that AB filed an amended statement of remedies on January 23, 2025, adding new claims for vacation pay of $45,500 and sick leave of “at least $6000.”
[37] I am concerned that the timing of AB’s amended statement of remedies created a moving target for the City. I need not say more about that, however, because for the following reasons I find the City’s lost wages offer is reasonable.
[38] I begin by considering whether the Tribunal defined the temporal scope of AB’s complaint and potential remedy in its ATD decision. If so, because it is undisputed that the City’s offer fully compensates AB for the period of August 15, 2019, to April 23, 2020, the offer would fall within the reasonable range of what the Tribunal might order if AB succeeds at a hearing.
[39] The analysis of the vacation and sick leave benefit allegations is set out in the ATD decision: AB at paras. 101-121. I will not repeat it here.
[40] In brief, the Tribunal found that because vacation entitlement is based on years of service, and because the City’s calculation denying AB full vacation entitlement factored in AB’s leaves, it could not say AB has no reasonable prospect of establishing that the denial of vacation entitlement was not connected to his disability and therefore discriminatory. The evidence shows that AB was on a full general leave from October 7, 2016, to March 6, 2017, and a partial leave during a graduated return to work from March 7, 2017, to October 27, 2017. The Tribunal considered the evidence that the City adjusted AB’s service dates in the years subsequent to his leaves to calculate his vacation entitlement.
[41] The ATD decision also considered AB’s allegation that he was denied sick leave benefits for the period of August 15, 2019, to April 23, 2020, because the City says he took irregular breaks despite working full-time hours. Here, the Tribunal was not persuaded that AB has no reasonable prospect of success because whether or not AB took irregular breaks was a foundational issue of credibility that could only be determined at a hearing.
[42] I find that the ATD decision delineates the temporal scope of the accepted allegations. The Tribunal understood AB’s allegation to be that he was denied vacation entitlement in subsequent years because of his disability related leaves in 2016 and 2017. Therefore, the allegations of being denied sick leave would start at the earliest, in the year subsequent to AB taking disability related leaves which is 2018. The allegation of being denied sick leave benefits is specifically for the period of August 15, 2019, to April 23, 2020, when AB is alleged to have taken irregular breaks.
[43] AB does not dispute that the City’s offer compensates him for vacation and sick pay for the period of August 15, 2019, to April 23, 2020. Therefore, the only difference between what the City offered and a potential award by the Tribunal is the portion of AB’s claim for vacation pay from January 1, 2018, to August 14, 2019. From his response submissions, I understand AB says he is owed a total of $10,750 for vacation pay for 2018 and 2019. AB has not provided an explanation or calculation to show how he arrives at this amount.
[44] Under the circumstances I find the City’s offer of $4,754.48 for lost vacation and sick pay to be within the reasonable range of what the Tribunal might award for the following reasons. First, wage loss awards are discretionary and contemplate compensation in full or in part. Second, the Tribunal narrowed the scope of the complaint and the remedies available in its ATD decision. Therefore, the upper range of what the Tribunal might award at a hearing is limited to the timeframe of 2018 to 2020. Third, AB has not provided additional information to support his argument. I have little evidence before me on which I could reasonably conclude that AB’s suggestion of an award is reasonable. Conversely, the City has provided calculations showing how they arrived at the amount in its offer. Finally, a reasonable settlement offer does not need to mirror exactly what the Tribunal might award.
3. Injury to dignity, feelings, and self-respect
[45] The Tribunal has the discretion to award compensation for injury to dignity: Code , s. 37(2)(d)(iii). The purpose of these awards is compensatory, not punitive. The amount of compensation depends on the specific facts and circumstances in a given case and relevant factors: Gichuru v. Law Society of British Columbia (No. 2) , 2011 BCHRT 185, aff’d in 2014 BCCA 396 at para. 260. At the same time, for the purposes of consistency and fairness, it is often helpful to consider the range of awards made in similar cases. In making an injury to dignity award the Tribunal often considers several factors including the nature of the discrimination; the complainant’s vulnerability; and the effect on the complainant: Oger v. Whatcott (No. 7) , 2019 BCHRT 58 at para. 225.
[46] The City offers a lump sum of $20,000 for injury to dignity, feelings, and self-respect.
[47] In his statement of remedies, and his response to the dismissal application AB requests an amount for injury to dignity but has not provided me with guidance by specifying the amount he is seeking. However, he says the City’s offer of $20,000 is unreasonable and lower than what the Tribunal may award.
[48] For the following reasons, I am persuaded that $20,000 falls within the reasonable range the Tribunal might award if AB was successful at a hearing.
[49] I find it appropriate to start with the Tribunal’s ATD decision which sets out the nature of the discrimination. In that decision the Tribunal found that the City was reasonably certain to establish that it met its duty to accommodate AB, except for two discrete periods: November 30, 2015, to March 11, 2016, regarding a place for him to lie down, and from August 19, 2019, to April 20, 2020, regarding the requirement for him to work a seven-hour day. Therefore, the nature of the discrimination is limited to two discrete periods of time and specific requests for accommodation during those times.
[50] AB says there are aggravating factors because employees of the City treated him poorly during his employment and there was an extended period where the City failed to accommodate him. However, these allegations are outside of the scope of the complaint before me. The ATD decision dismissed AB’s allegations about bullying and harassment and limited the scope of the complaint to the two discrete time periods noted above. Further, because the purpose of an injury to dignity award is compensatory and not punitive, AB’s argument about aggravating factors is not helpful to my analysis.
[51] Next, I consider AB’s vulnerability or the social context of the discrimination. The Tribunal has recognized that there is an inherent power imbalance between employers and employees that make employees vulnerable: Malin v. Ultra Care and another (No. 2) , 2012 BCHRT 158 at para. 198.
[52] Finally, I consider the effect of the discrimination on AB. AB says it was traumatizing to seek accommodation and caused him to be mentally exhausted. He says that he was afraid of being fired and tried his best to work his full hours despite the lack of adequate accommodations. He says that as a result, he was tired, nervous, and developed trouble sleeping at night.
[53] The parties have cited a number of cases in support of their positions. None of the cases cited by the parties mirror the exact circumstances of this case. However, I have reviewed and considered all of them in reaching my conclusion in relation to the range of reasonable injury to dignity awards AB might expect to receive after a hearing of his complaint.
[54] The cases cited by the City include awards for injury to dignity of between $5,000 and $15,000. The City acknowledges that these cases are dated, with the most recent case cited issued in 2020. The Tribunal’s trend for injury to dignity awards is trending upwards: Benton v. Richmond Plastics , 2020 BCHRT 82 at para 78. The City’s offer surpasses the cases it relies upon.
[55] The cases cited by AB include awards between $25,000 and $35,000. The offer is slightly less than in the cases he cites.
[56] Because AB’s allegations are limited to two discrete periods, I find the cases he cites involving discrimination over an extended period of time to be distinguishable: Kerr v. Boehringer , 2009 BCHRT 247 ($30,000); Davis v. Sandringham Care Centre and another , 2015 BCHRT 148 ($35,000).
[57] Some of the cases cited by AB are distinguishable and not helpful to my analysis. They are not complaints about accommodation of disability in employment. Instead, these cases concern allegations of discrimination in publication on the basis of gender identify: Oger and Whatcott (No. 7) , 2018 BCHRT 58 ($35,000); or in tenancy: Biggings obo Walsh v. Pink and others , 2018 BCHRT 174 ($35,000).
[58] Some of the cases cited by AB involve termination of employment which the Tribunal has recognized as meriting an award at the higher end; Benton v Richmond Plastics , 2020 BCHRT 82 ($30,000); Wells v Langley Seniors , 2018 BCHRT 59 ($30,000); Ford v Peak Products Manufacturing and another (No. 3) , 2010 BCHRT 155 ($25,000). Because AB’s discriminatory termination allegation was dismissed in the ATD decision these cases are somewhat helpful in providing an upper limit for a reasonable award. I find that the Tribunal is likely to order an amount less than cases involving discriminatory termination.
[59] In the circumstances of this case, I find that $20,000 is within the reasonable range the Tribunal might award. The amount acknowledges that AB suffered some negative impact from the discrimination. It also is less than complaints involving termination and is higher than the dated cases cited by the City involving a failure to accommodate a disability.
[60] In conclusion, looking at the entirety of the offer, I am satisfied that it fully addresses the allegations and available remedies and offers monetary compensation that is within the reasonable range of what the Tribunal might order. I find the offer reasonable.
[61] However, that does not end the inquiry because, as I noted above, the Tribunal may consider whether there are factors that weigh in favour of proceeding with the complaint, based on the purposes set out in s. 3 of the Code . While the parties have made no submissions on whether it would serve the purposes of the Code to proceed, I turn to that question next.
B. Will it serve the purposes of the Code to proceed despite the reasonable settlement offer?
[62] The assessment of whether proceeding with a complaint will further the purposes of the Code , involves more than an assessment of an individual complaint. It encompasses broader public policy issues including the efficiency and responsiveness of the human rights system, and the expense and time involved in processing a complaint to a hearing: Dar Santos at para. 59. In general, it does not further the purposes of the Code to proceed to a hearing where the respondent has made a reasonable settlement offer: Salanguit v. Parq Vancouver and another , 2024 BCHRT 119 at para. 47.
[63] Here, I find there are no factors that favour proceeding with the complaint in light of the City’s reasonable settlement offer. The Tribunal routinely hears and decides cases that concern disability accommodation in the workplace, and I am not persuaded that the present complaint engage broader public policy issues. Further, considerable resources would be required for a five-day hearing, and the Tribunal encourages parties to resolve their disputes in good faith on a voluntary basis. Allowing this complaint to proceed would not further the purpose of a just and timely human rights system.
IV CONCLUSION
[64] The City’s settlement offer is reasonable. It would not further the purposes of the Code to allow the complaint to proceed where AB has rejected this offer. I grant the application and dismiss the complaint in its entirety under s. 27(1)(d)(ii) of the Code .
[65] As set out in the City’s materials, AB has two weeks following the date of this decision to accept the offer.
Edward Takayanagi
Tribunal Member