Cooney v. Healthy Essentials Clinic, 2025 BCHRT 60
Date Issued: March 5, 2025
File CS-002142
Indexed as: Cooney v. Healthy Essentials Clinic, 2025 BCHRT 60
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:
Melissa Cooney
COMPLAINANT
AND:
Healthy Essentials Clinic
RESPONDENT
REASONS FOR DECISION
APPLICATION TO DISMISS A COMPLAINT
Section 27(1)(c)
Tribunal Member: Devyn Cousineau
Counsel for the Complainant: Lawrence Robinson
Counsel for the Respondent: Kimberly D. Darling
I INTRODUCTION
[1] This is a decision about whether to dismiss Melissa Cooney’s human rights complaint without a hearing.
[2] Ms. Cooney worked for the Healthy Essentials Clinic as an office administrator/medical office assistant. She has two young children. When the COVID-19 pandemic hit in March 2020, she started to work remotely. In May 2020, the Clinic asked Ms. Cooney to return to working in the office. She says she could not do that, because her children had not yet returned to school and she had no childcare. On June 18, Ms. Cooney agreed to take an unpaid COVID-related leave of absence. Four days later, the Clinic terminated her employment. In this human rights complaint, Ms. Cooney alleges that, by requiring her to return to work in person and then terminating her employment, the Clinic discriminated against her based on her family status, in violation of s. 13 of the Human Rights Code.
[3] The Clinic denies discriminating. It says that the nature of Ms. Cooney’s job responsibilities required her to work at the Clinic, and that she was not working effectively from home. It says that there were many problems with Ms. Cooney’s performance throughout her employment, which got worse while she was working remotely. It says that Ms. Cooney did not make reasonable efforts to find childcare for her children. Finally, it says it terminated Ms. Cooney’s employment because of conduct which the Clinic’s Director felt was the “last straw”. In this application, it asks the Human Rights Tribunal to dismiss the complaint because it has no reasonable prospect of success: Code, s. 27(1)(c).
[4] For the following reasons, the application is denied. In my view, there are important disputes in the evidence which can only be resolved at a hearing. This is not a prediction that the complaint will be successful but rather reflects my discretionary assessment that Ms. Cooney’s complaint warrants the time and expense of a hearing.
II ISSUES
[5] The issue in this application is whether Ms. Cooney’s complaint should be dismissed because it has no reasonable prospect of success. The onus is on the Clinic to establish the basis for dismissal.
[6] To assess whether a complaint has no reasonable prospect of success, the Tribunal looks at all the evidence to decide whether “there is no reasonable prospect that findings of fact that would support the complaint could be made on a balance of probabilities after a full hearing of the evidence ” : Berezoutskaia v. British Columbia (Human Rights Tribunal) , 2006 BCCA 95 at para. 22, leave to appeal ref’d [2006] SCCA No. 171. The Tribunal must base its decision on the materials filed by the parties, and not on speculation about what evidence may be filed at the hearing: University of British Columbia v. Chan , 2013 BCSC 942 at para. 77 . It does not make findings of fact.
[7] A dismissal application is not the same as a hearing: Lord v. Fraser Health Authority , 2021 BCSC 2176 at para. 20 ; SEPQA v. Canadian Human Rights Commission , [1989] 2 SCR 879 at 899. The threshold to advance a complaint to a hearing is low. In a dismissal application, a complainant does not have to prove their complaint or show the Tribunal all the evidence they may introduce at a hearing. They only have to show that the evidence takes their complaint out of the realm of conjecture: Workers’ Compensation Appeal Tribunal v. Hill, 2011 BCCA 49 at para. 27 .
[8] Many human rights complaints raise issues of credibility. This is not, by itself, a sufficient reason to deny an application to dismiss: Evans v. University of British Columbia , 2008 BCSC 1026 at para. 34 . However, if there are foundational or key issues of credibility, the complaint must go to a hearing: Francescutti v. Vancouver (City) , 2017 BCCA 242 at para. 67.
[9] Ms. Cooney’s allegation of discrimination is rooted in her family caregiving responsibilities. The law on discrimination based on family caregiving responsibilities has been clarified since the parties filed their submissions on the application. Specifically, in British Columbia (Human Rights Tribunal) v. Gibraltar Mines Ltd., 2023 BCCA 168 [ Gibraltar Mines ], the BC Court of Appeal clarified that a complainant is not required to prove that family status discrimination flowed from a change in the terms or conditions of employment: see e.g. para. 67. This means that the Clinic’s argument that the complaint should be dismissed because there was no change in the terms or conditions of Ms. Cooney’s employment cannot ultimately succeed. For the purpose of this application, however, I have considered that argument briefly below. For the rest of the analysis, I apply the law as it has been clarified in Gibraltar Mines . In doing so, I am satisfied there is no prejudice to the parties because the analysis substantially reflects the case law they have cited.
[10] To prove her complaint at a hearing, Ms. Cooney must first prove that the ground of family status is engaged in relation to her caregiving responsibilities. The definition of “family status” under the Code is meant to be flexible: Gibraltar Mines at para. 91. In a caregiving context, the ground is engaged by the substantial interests (i.e., duties, obligations, responsibilities) that flow from a person’s status as a family member: see Gibraltar Mines at paras. 62, 70, 77, 95, 97-98, and 99-101; see also Bach v. BC Ministry of Finance, 2024 BCHRT 145 at para. 17.
[11] Second, Ms. Cooney must prove that she was adversely impacted in her employment. Here, she alleges two adverse impacts: the requirement that she return to work at the Clinic which resulted in an unpaid leave, and the termination of her employment.
[12] Finally, Ms. Cooney must prove that her family status (the substantial obligation flowing from her status as a family member) was a factor in the alleged adverse impacts in employment: Gibraltar at para. 101; Moore v. BC (Education), 2012 SCC 61 at para. 33. To establish this connection regarding the requirement that she return to work in person, Ms. Cooney would have to prove that this requirement amounted to a “serious interference” with her family caregiving responsibilities: Gibraltar Mines at paras. 62, 70, 77, 88, and 101 .
[13] If Ms. Cooney proves the elements of her case, then the burden would shift to the Clinic to justify the adverse impacts by proving the elements of a bona fide occupational requirement:
a. Valid purpose: it was applying a workplace standard adopted for a purpose rationally connected to the performance of the employee’s job or function.
b. Good faith: it adopted the workplace standard in an honest and good faith belief that it was necessary to fulfil its valid purpose.
c. Reasonable necessity and accommodation: the standard was reasonably necessary to accomplish its purpose and the Clinic discharged its duty to accommodate Ms. Cooney to the point of undue hardship.
British Columbia (Public Service Employee Relations Commission) v. British Columbia Government and Service Employees’ Union (Meiorin Grievance), [1999] 3 SCR 3 at para. 54; Ciliberto v. Tree Island Industries Ltd., 2024 BCHRT 87 at para. 27
[14] For the purposes of this application, Ms. Cooney’s complaint has no reasonable prospect of success if she has no reasonable prospect of proving the elements of her complaint, or if the Clinic is reasonably certain to prove its defence: Purdy v. Douglas College and others, 2016 BCHRT 117 at para. 50.
[15] With those general principles in mind, I turn to a brief background of the events giving rise to this complaint. In doing so, I rely on the material filed by the parties. I make no findings of fact.
III Background
[16] The Clinic is a health clinic that provides interdisciplinary, holistic health services to its clients. Its clients are “people struggling with mental health and health care issues who need quality integrated care from multiple practitioners”. Christina Camilleri is the Clinic’s founder and owner. She works as the Clinic’s Director and maintains her own practice in clinical nutrition and behavioural counselling.
[17] Ms. Camilleri hired Ms. Cooney in August 2019 as an office administrator/medical office assistant. Ms. Cooney’s job responsibilities included: helping doctors and practitioners with referrals and in office services; answering phones and taking messages; greeting clients and directing them to their appointment; scheduling; taking payments and invoicing; overseeing office supplies/inventory; in house signage; and some light marketing duties.
[18] In the fall of 2019, Ms. Cooney’s two children were 8 and 9 years old. Ms. Camilleri says that she knew Ms. Cooney had children from the outset. She says – and there appears to be no dispute – that she offered some flexibility to account for Ms. Cooney’s childcare responsibilities, including allowing Ms. Cooney to adjust her work hours during summer holidays.
[19] Ms. Camilleri says that, by November 2019, she started to have concerns about Ms. Cooney’s performance. These concerns related to timeliness, failure to follow instructions and complete assigned work, and not properly managing client referrals. Ms. Cooney denies that there were performance issues at this time and says that her three-month review in November was entirely positive.
[20] In December 2019, Ms. Cooney says that she experienced a traumatic incident at work. She agrees that, in the immediate aftermath, she was struggling at work.
[21] Ms. Camilleri says that, by January 2020, her impression was that Ms. Cooney was distracted, unproductive, not taking initiative, and not dedicated to her job. She says that, on numerous occasions, Ms. Cooney left work early or arrived late without notice and was doing personal tasks during work hours. The parties appear to agree that Ms. Camilleri did not discuss these concerns at this time. Ms. Camilleri says that she was busy caring for a very ill family member, and so she was not actively managing Ms. Cooney. She says she was hoping that Ms. Cooney would improve her work and attitude. For her part, Ms. Cooney says that Ms. Camilleri never discussed performance concerns with her.
[22] In March 2020, BC declared a state of emergency in response to the COVID-19 pandemic. The Clinic was an essential service, and it stayed open to serve its clients. Ms. Camilleri says that, during this period, the Clinic lost about 70% of its business. She says that she kept Ms. Cooney on full time, even though she did not have full time work for her to do. Ms. Cooney disputes that her workload decreased.
[23] Ms. Camilleri says that, on March 25, 2020, Ms. Cooney left work without notice, later explaining that she needed to work from home that afternoon. Ms. Cooney disputes that she unilaterally left the Clinic, and says she left work in accordance with public health orders which applied to all staff.
[24] There is no dispute that, at this point, schools were closed, and Ms. Cooney’s two young children were at home full time.
[25] According to Ms. Camilleri, Ms. Cooney decided she would work remotely. Ms. Camilleri says that she never agreed to this arrangement, because there was work that needed to be done in the Clinic. After discussion, Ms. Camilleri says that they agreed that Ms. Cooney could work temporarily from home, while she was without childcare, subject to certain conditions. Those conditions included that Ms. Cooney would meet with Ms. Camilleri first thing every morning, track her time on a shared calendar, and go into the office every other day to take care of in-office tasks.
[26] Ms. Camilleri says that, while she was working at home, Ms. Cooney did not comply with these conditions and did not complete tasks that she had been assigned. She says that she sometimes could not reach Ms. Cooney at all during business hours. She says that Ms. Cooney was not working full time hours but continued to submit time sheets claiming a 40-hour work week. Ms. Camilleri was not happy with the situation.
[27] For her part, Ms. Cooney says that it was an unfortunate reality that she had to adjust her work hours to balance caring for her children. She says this included starting work earlier and working in the evening. She says that she continued to perform her duties remotely, without incident. She agrees with Ms. Camilleri that the arrangement was temporary but says that her return was “contingent on it being necessary in the eyes of the British Columbia government and safe for me and my family”.
[28] Between May 11 and 14, 2020, Ms. Camilleri spoke to Ms. Cooney several times about her expectation that Ms. Cooney would return full time to the office on May 19, 2020. Ms. Camilleri says that she picked this date because this is when the government had announced it would be reopening schools and childcare for children of essential service workers. Ms. Camilleri says that Ms. Cooney told her that she had no interest in sending her children back to school and insisted on continuing to work remotely. For her part, Ms. Cooney says that the local school was small, and had told them it did not have capacity “to have many children in attendance” and there were no childcare options available. She says that, at this point, public health guidelines clearly stated that people should work remotely if possible. She also says that she was cautious about limiting her interactions with people outside the home, given certain health conditions of her children.
[29] Ms. Camilleri says that she told Ms. Cooney to provide her with a work plan that set out what hours she would be in the office and what hours she would work from home, but that Ms. Cooney would not commit to being at the Clinic for any set hours. Ms. Camilleri says that this made it difficult to schedule in person appointments for the Clinic’s clients.
[30] On May 28, Ms. Cooney and Ms. Camilleri met in person. Ms. Camilleri said that she needed Ms. Cooney back in the office full time. She says that they discussed the issues with Ms. Cooney’s performance, including that she was often unavailable, not completing assigned tasks, and just generally not doing what she asked. There is no dispute that, during this conversation, Ms. Camilleri asked Ms. Cooney whether she really wanted to be a working mother at this time. From Ms. Camilleri’s perspective, she asked the question out of genuine concern, with her “counsellor hat on”, to try to help Ms. Cooney undertake some self-reflection.
[31] Ms. Cooney argues that this question demonstrates that Ms. Camilleri had a “hostile attitude” towards her family status. She says that Ms. Camilleri did not appreciate that she lived in a rural area, without the childcare options that may be available in other parts of the province. She says that she tried to find childcare and summer camps for the children, but there were no feasible options. She says that one of her children has Autism, which further narrowed the options available to them.
[32] Ms. Camilleri says that Ms. Cooney was unwilling to talk about a plan for returning to the office or commit to a schedule. Ms. Camilleri says that she offered several options, including job sharing or being laid off to collect EI or CERB. She says that Ms. Cooney was “disrespectful, argumentative, and took the afternoon and the next day off stating she was ill”.
[33] On June 1 and 2, Ms. Cooney’s children returned to school for two days per week. There was no childcare and no school bus, so Ms. Cooney left work early to pick them up and take them home. Ms. Camilleri says that she still submitted time sheets for a full day.
[34] On June 2, the parties met again. Ms. Camilleri says that Ms. Cooney said she had not investigated any childcare options and would not commit to time in the office. She says that Ms. Cooney felt it was unnecessary to be in the office since most appointments were still virtual. Ms. Cooney expressed that she felt Ms. Camilleri was being unreasonable in the context of the COVID-19 pandemic. Ultimately, this discussion did not progress, and they agreed to talk again the next week.
[35] On June 3, Ms. Camilleri says that Ms. Cooney removed all her personal items out of the office filing cabinet, deleted internal communications, and asked another Clinic practitioner for permission to communicate by private email.
[36] On June 5, Ms. Camilleri says that Ms. Cooney came into her office and told her she did not appreciate the “tactics and schemes to get her to come back to work”. Ms. Camilleri says she was shocked by this. Ms. Cooney left work early that day, and Ms. Camilleri called her in the evening. At the end of the call, Ms. Camilleri asked Ms. Cooney to send an email with the times she planned to be in the office the following week. She did not do so.
[37] On June 10 and 11, Ms. Camilleri says that Ms. Cooney again worked less than full time hours and was not available for all the hours when practitioners had clients in the office. On June 11, she says that Ms. Cooney failed to do an important task that impacted a vulnerable client. That day, she says that Ms. Cooney left early and left her laptop at the office but nevertheless submitted a time sheet for a full days’ work.
[38] The parties met again on June 15. Ms. Camilleri raised the option of a COVID-19 unpaid leave. She says that they discussed the challenges that had been raised by Ms. Cooney’s absence from the office, and that Ms. Cooney agreed that work was not getting done. Ms. Camilleri says she made it clear that Clinic staff were all back in the office, and Ms. Cooney’s position was a full-time, in office position. She says that she told Ms. Cooney that, if she took an unpaid leave, she would be able to return to her job. Ms. Camilleri says that Ms. Cooney then proposed working part time in a shared position.
[39] On June 15, Ms. Camilleri says she sent Ms. Cooney two letters. The first was a ‘recall notice’, setting out the expectation that Ms. Cooney would return to working full time at the office. Ms. Cooney says that she did not receive this letter until this human rights complaint. The second letter, which Ms. Cooney says she did receive, provided Ms. Cooney the option of an unpaid COVID leave. It said:
We understand these are unusual times and HEC recognizes that you have personal circumstances to manage and has accommodated your inconsistent schedule and limited in office duties/responsibilities since re-opening May 19 th , 2020. HEC has worked to inform you of your options as an essential service worker and has waited patiently for you to provide a return to work plan in writing or through verbal confirmation. To date, HEC has not received anything that outlines a return to work plan. HEC can see that your personal circumstances are a struggle for you. Thus, HEC has decided to support you in an unpaid COVID 19 leave so that you are free to meet your personal circumstances. In today’s meeting you stated that you need time to consider an unpaid COVID 19 leave. HEC respectfully requests an answer by Thursday June 18, 2020. Please note that a return date from this leave is unknown as you were clear that your personal circumstances are dependent on community services like schools, bussing, availability of day camps all returning to normal.
[40] On June 18, Ms. Cooney confirmed that she would take the unpaid leave.
[41] The next day, Ms. Cooney asked Ms. Camilleri if she could be present when Ms. Camilleri told the other clinicians about her leave. She explained that she felt this was important for maintaining her relationship with the clinicians and wanted it to be clear that she was not “‘quitting’ or giving up on my accountabilities to them all”. Ms. Camilleri says she found this request inappropriate. Later that day, a Clinic contractor told Ms. Camilleri that Ms. Cooney was planning to announce to the staff that Ms. Camilleri had given her the choice to take a COVID leave or find daycare. Ms. Camilleri says this was “absolutely my tipping point”. She says that it was clear to her that Ms. Cooney was planning to “throw me under the bus” by telling the staff that she was forcing her to take an unpaid leave. She says she considered this to be “insubordination and team splitting”, and a violation of the Clinic’s values of trust, respect, and integrity. In response, Ms. Cooney says this reaction is confusing to her and she had never engaged in any “team splitting” behaviour.
[42] On June 22, Ms. Camilleri terminated Ms. Cooney’s employment. In the termination letter, Ms. Camilleri said that the termination was for “frustration of contract”. However, in her affidavit she says that was a mistake and in fact it was a without cause termination.
[43] On September 22, 2020, Ms. Cooney filed this human rights complaint.
IV DECISION
[44] Based on the material before me, I am satisfied that Ms. Cooney has taken the elements of her case out of the realm of conjecture.
[45] At the outset, I acknowledge the Clinic’s argument that Ms. Cooney’s complaint has no reasonable prospect of success because any adverse impacts did not flow from a decision by the employer to change her working conditions. This requirement for a change in the terms and conditions of employment was based on an interpretation of Health Sciences Assoc. of B.C. v. Campbell River and North Island Transition Society, 2004 BCCA 260 that has since been overtaken by the Court’s decision in Gibraltar Mines. I have not found it necessary to seek further submissions from the parties on this point because, in my view, Ms. Cooney’s complaint does include evidence of a change to her working conditions. She has presented evidence that all Clinic staff began working remotely at the outset of the COVID-19 pandemic. The requirement that she return to the office then, arguably, was a change to her working conditions in place at the time. Even based on the Clinic’s interpretation of the law before Gibraltar Mines, I am not satisfied that this element of Ms. Cooney’s complaint would have no reasonable prospect of success.
[46] I also acknowledge, as the Clinic argues, that “almost every work-related requirement has the potential to interfere, to some degree, with an employee’s family obligations”: Miller v. British Columbia Teachers’ Federation, 2009 BCHRT 34 at para. 26; Envirocon Environmental Services ULC v. Suen, 2019 BCCA 46 at para. 32. This interference, on its own, is not proof of discrimination contrary to the Code. Something more is required. That “something more” has been defined in the case law and is reflected in the legal test for family status discrimination, which I have described above. I turn now to the elements of that test, which Ms. Cooney would bear the burden of proving at a hearing.
1. Family status engaged
[47] The first element Ms. Cooney must prove is that the ground of family status is engaged in relation to her caregiving responsibilities. Ms. Cooney says that her family status as a mother is engaged by her obligation to care for her two school-aged children during the COVID-19 pandemic, when schools were closed and there were no childcare options available in her rural area. She says that one of her children has Autism, which further limited the options available for childcare, and required that she maintain as much stability for him as possible. In my view, this may be the type of substantial family caregiving obligation that engages the protection of s. 13 of the Code. It is enough to take this element of the complaint out of a realm of conjecture.
[48] The Clinic argues that the children could have stayed home with Ms. Cooney’s husband. Ms. Camilleri says that she was told that the husband was working from home. Ms. Cooney says that is not true. She has submitted a letter from her husband’s employer who says that, apart from a period between March 17 and 27, 2020, her husband has worked on the premises of the business. In light of this evidence, I cannot conclude that Ms. Cooney has no reasonable prospect of proving that she had obligations to provide care for her children.
[49] Next, Ms. Cooney must prove that she was adversely impacted in her employment and her family status was a factor in that adverse impact. I consider her allegations regarding the requirement to return to the office, and her termination, separately.
2. Requirement to return to office
[50] The Clinic argues that Ms. Cooney has no reasonable prospect of proving that its requirement that she return to work in the office after May 19 rises to the level of a “serious interference” with her family caregiving responsibilities. In my view, Ms. Cooney has also raised this element of her complaint out of a realm of conjecture.
[51] The circumstances of this complaint arose in a rural area of the province, in the very unique context of the early months of the COVID-19 pandemic. There is no dispute that schools across the province were closed until May 19, when they partially reopened for the children of essential workers. The parties do dispute whether, at this point, Ms. Cooney’s children could have returned to school. The Clinic says they could have, but Ms. Cooney refused to consider that option. Ms. Cooney says this is untrue. She says that her school “only has approximately 200 full-time attendees and we were advised by the administration that they did not have capacity to have many children in attendance and there were no daycare options available in my vicinity”. This is an important factual dispute that I cannot resolve in this application. In my view, a work requirement that Ms. Cooney work in the office during periods where her young children needed her to care for them could be a serious interference with a substantial parenting obligation. Ms. Cooney says that the outcome of this conflict was that she was required to take an unpaid leave, which is an adverse impact in employment. This element of her case is out of the realm of conjecture.
3. Termination
[52] There is no dispute that the termination of Ms. Cooney’s employment was an adverse impact. However, the Clinic argues that Ms. Cooney has no reasonable prospect of proving that her family status was a factor in the decision to terminate her employment. It says that it is reasonably certain to prove that the termination was based only on Ms. Cooney’s poor performance, and the “final straw” which was Ms. Camilleri’s perception that Ms. Cooney was going to throw her under the bus with other clinicians, by suggesting that she was being unfairly forced to take an unpaid leave.
[53] At a hearing, Ms. Cooney only has to prove that her family status was one factor in her termination; it does not have to be the only or main factor: Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Bombardier Inc. (Bombardier Aerospace Training Center), 2015 SCC 39 at para. 52. Again, the material before me raises this connection above a realm of conjecture. Even if the Clinic proves that it had legitimate concerns about Ms. Cooney’s performance – and I acknowledge the significant evidence of such – the termination happened in direct response to her request to be present when Ms. Camilleri shared the news that she would be taking a leave. Given that Ms. Cooney’s leave, and at least some of Ms. Camilleri’s performance concerns, directly connected to her parental responsibilities, it is possible that she could connect her termination to her family status. The evidence before me is insufficient to allow me to conclude, with reasonable certainty, that the Tribunal would draw a bright line between all the conversations, concerns, and conflict regarding Ms. Cooney’s parental obligations, and her termination, to find that the termination was exclusively for reasons unconnected to Ms. Cooney’s family status.
4. Bona fide occupational requirement
[54] The Clinic did not directly argue that the complaint should be dismissed because it was reasonably certain to justify any adverse impacts as a bona fide occupational requirement. At this stage, it does not appear that this defence would apply to the termination, because the Clinic’s position is that Ms. Cooney’s family status was not factor in the termination. However, the Clinic argues that its requirement that Ms. Cooney work in the office was necessary for the job, and to continue to allow Ms. Cooney to work remotely would have given rise to undue hardship. This engages the justification analysis for a bona fide occupational requirement.
[55] The parties did not make any submissions about the first two elements of the justification analysis and so, for the purpose of this application, I accept that the Clinic is reasonably certain to prove that it adopted this workplace rule in good faith for a valid purpose. At this stage, the dispute concerns whether the Clinic took all reasonable and practical steps to accommodate Ms. Cooney up until her termination.
[56] The Clinic argues that it will prove it reasonably accommodated Ms. Cooney between March and June 2020, by allowing her to work from home and continuing to pay her for full-time work. It argues that it tried to engage constructively with Ms. Cooney to discuss options that would have allowed her to return to the office on a predictable schedule, including through options of job sharing and part time work. It says that Ms. Cooney failed to fulfill her obligations in the accommodation process, by refusing to pursue available options for childcare. It cites Ziegler v. Pacific Blue Cross, 2020 BCHRT 125, where the Tribunal held that the complainant had made insufficient efforts to arrange alternate daycare which would allow her to work an evening shift.
[57] As I have said, the issue of whether Ms. Cooney refused or made insufficient efforts to seek out childcare which would have allowed her to return to the office is disputed. Ms. Cooney disputes Ms. Camilleri’s evidence about when her children’s school was reopening, and whether there were childcare options available. She says that, when her children were permitted to go back to school, it was only for two days a week and there were no school buses or after school care available, meaning she had to pick up and drop off her children and then care for them after school. She says she contacted several organizations to inquire about childcare and summer camp, but there were no feasible options. She says that the children’s grandparents live in a different province, and the children could not travel there due to the pandemic. In my view, this issue requires findings of fact at a hearing.
[58] The Clinic also argues that, in light of Ms. Cooney’s position and job responsibilities, allowing her to continue to work from home would have given rise to undue hardship. There is evidence to support this, particularly considering that many of Ms. Cooney’s duties relate to tasks that can only be performed in person. Ms. Camilleri has also pointed to evidence that could support a finding that, contrary to Ms. Cooney’s evidence, the remote working arrangement was not working out and was giving rise to challenges with oversight and performance. However, again, this critical evidence is contested. Ms. Cooney says that, during this time, most appointments were virtual and she was able to effectively do most of her work at home. She says that she was making up time in the mornings and evenings. Finally, she says that Ms. Camilleri did not raise performance concerns with her.
[59] In sum, there are critical disputes in the evidence which require findings of fact that can only be made at a hearing: Francescutti at para. 67. Applying the low bar of s. 27(1)(c), I am not satisfied that Ms. Cooney’s complaint has no reasonable prospect of success. This is not a prediction that the complaint will be successful; it is simply an assessment that the issues it raises warrant the time and expense of a hearing. The application to dismiss the complaint is denied.
V CONCLUSION
[60] The application to dismiss the complaint is denied. The case manager will contact the parties to schedule a hearing.
Devyn Cousineau
Vice Chair