Khanna v. BC Ministry of Finance and another, 2025 BCHRT 69
Date Issued: March 12, 2025
File: CS-003813
Indexed as: Khanna v. BC Ministry of Finance and another, 2025 BCHRT 69
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:
Vivek Khanna
COMPLAINANT
AND:
His Majesty the King in Right of the Province of British Columbia as represented by the Ministry of Finance, BC Liquor Distribution Branch
RESPONDENTS
REASONS FOR DECISION
APPLICATION TO DISMISS A COMPLAINT
Sections 27(1)(c)
Tribunal Member: Edward Takayanagi
Counsel for the Complainant: Christopher A. Siver
Counsel for the Respondent: Bobby Sangha, Zachary Ansley
I INTRODUCTION
[1] Vivek Khanna alleges that his employer BC’s Liquor Distribution Branch, discriminated against him based on physical disability in the area of employment contrary to section 13 of the Human Rights Code . Specifically, Mr. Khanna says he has a chronic kidney disease that puts him at increased risk of complications from COVID-19. He says the Branch did not adequately accommodate him during the pandemic between March 2020 to April 2022 because it did not find him an alternate job he could perform during this time.
[2] The Branch denies discriminating. It applies to dismiss the complaint under s. 27(1)(c) because it says it is reasonably certain to establish at a hearing that it accommodated Mr. Khanna to the point of undue hardship, so the complaint has no reasonable prospect of success.
[3] For the reasons that follow, I allow the application and dismiss Mr. Khanna’s complaint. I am satisfied the Branch is reasonably certain to prove at a hearing that it met its duty to accommodate. As a result, Mr. Khanna’s complaint has no reasonable prospect of success. 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
[4] Mr. Khanna was a senior store manager for a liquor store operated by the Branch. His role was to oversee the operation of the store which included interacting with the public, coaching and supervising staff, and managing the inventory of the store.
[5] Mr. Khanna has a chronic kidney condition requiring him to take immunosuppressant medications that place him at significant risk of hospitalization or death from viral infections.
[6] On March 17, 2020, the Provincial Health Officer declared a public health emergency in light of the COVID-19 pandemic. On that day, Mr. Khanna emailed a regional manager saying he would “be off work for the time being.” He said he was “willing to assist from home during the pandemic.” He attached a note from his doctor saying Mr. Khanna was “unable to work due to medical reasons” and estimated that he could return to work in six weeks. The Branch approved Mr. Khanna’s leave.
[7] On March 26, 2020, the Public Health Office issued a list of essential services that “should and are encouraged to remain open” during the pandemic. Retail liquor stores were included in the list of essential services.
[8] On April 21, 2020, a case manager with the Branch phoned Mr. Khanna to discuss his leave. She noted that his doctor’s note saying he was unable to work seemed to contradict his assertion that he could assist from home and requested additional information about his restrictions and limitations.
[9] On May 4, 2020, in response to the Branch’s request for additional information, Mr. Khanna submitted an occupational fitness assessment completed by his doctor which stated he has a kidney condition and was taking immunosuppressant medication. His doctor stated Mr. Khanna is able to do full duties from home. Mr. Khanna explained to his superiors that his condition put him at serious risk of death or hospitalization if he contracted COVID-19.
[10] On June 11, 2020, the Branch accepted Mr. Khanna’s explanation that he was unable to work in stores with the public because of a physical disability. They placed Mr. Khanna on a paid leave, effective retroactively to March 17, 2020. The Branch noted that because a key responsibility of Mr. Khanna’s position is to manage staff in the store, they would require additional information about his limitations and requested he attend an independent medical examination (IME).
[11] On August 27, 2020, Mr. Khanna attended an IME. The doctor confirmed Mr. Khanna was vulnerable to complications from COVID-19 and opined that he “should be restricted from working with the general public and co-workers in-person.”
[12] Mr. Khanna remained on paid leave for the period of March 17, 2020, to October 5, 2020. During this time Mr. Khanna contacted the Branch on May 11, 2020, June 11, 2020, and September 26, 2020, asking if there were jobs he could perform remotely and suggesting alternate roles he thought might be suitable for him. The Branch responded on each instance to Mr. Khanna that there were no fully remote jobs available that were suitable within the Branch.
[13] On October 6, 2020, the Branch informed Mr. Khanna that it had identified temporary projects that he could work on remotely. Mr. Khanna worked on these projects from October 6, 2020, to January 9, 2021, when the projects were completed.
[14] Between January 10, 2021, and May 29, 2021, the Branch told Mr. Khanna it had no other work Mr. Khanna could perform remotely. The Branch told Mr. Khanna that it would hold his position of store manager open until the COVID-19 pandemic ended. Mr. Khanna applied for and received short term illness and injury plan benefits (STIIP) during this time.
[15] On or about May 28, 2021, the Branch informed Mr. Khanna that it had identified a way that he could perform some of the duties of store manager by working alone after the store closed to the public. Mr. Khanna agreed to this accommodation and worked night shifts from May 30, 2021, to September 18, 2021.
[16] On September 23, 2021, Mr. Khanna requested a leave of absence and provided a doctor’s note stating he was experiencing fatigue, concentration problems, and depression due to working night shifts. The Branch approved Mr. Khanna’s leave.
[17] From September 2021 to April 5, 2022, the Branch was unable to find work for Mr. Khanna that would not require him to work nights and would not expose him to risk of contracting the COVID-19 virus. During this time Mr. Khanna received STIIP benefits and long-term disability benefits.
[18] In or about March 2022, Mr. Khanna requested to return to work in-person as the store manager because many people in the province had been vaccinated against COVID-19, and the case numbers were lessening. The Branch agreed to have Mr. Khanna return.
[19] Mr. Khanna returned to work as the store manager on April 6, 2022.
III DECISION
[20] The Branch applies to dismiss Mr. Khanna’s complaint on the basis that it has no reasonable prospect of success: Code, s. 27(1)(c). The onus is on the Branch to establish the basis for dismissal.
[21] Section 27(1)(c) is part of the Tribunal’s gate-keeping function. It allows the Tribunal to remove complaints which do not warrant the time and expense of a hearing.
[22] The Tribunal does not make findings of fact under s. 27(1)(c). Instead, the Tribunal looks at the evidence to decide whether “there is no reasonable prospect that findings of fact that would support the complaint could be made on a balance of probabilities after a full hearing of the evidence ” : Berezoutskaia v. British Columbia (Human Rights Tribunal) , 2006 BCCA 95 at para. 22, leave to appeal ref’d [2006] SCCA No. 171. The Tribunal must base its decision on the materials filed by the parties, and not on speculation about what evidence may be filed at the hearing: University of British Columbia v. Chan , 2013 BCSC 942 at para. 77.
[23] 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.
[24] To prove his complaint at a hearing, Mr. Khanna will have to prove he has a characteristic protected by the Code , he was adversely impacted in employment, and his protected characteristic was a factor in the adverse impact: Moore v. British Columbia (Education) , 2021 SCC 61 at para. 33. If he does that, the burden shifts to the Branch to justify the impact as a bona fide reasonable justification. If the impact is justified, there is no discrimination.
[25] From the materials before me, I understand Mr. Khanna’s allegation is that the Branch discriminated because it failed to accommodate him with alternative remote work duties between March 2020 to April 2022.
[26] The elements of Mr. Khanna’s case under the Moore framework are not in dispute. Rather, the Branch says the complaint has no reasonable prospect of success because it is reasonably certain to prove a defence at a hearing, that it satisfied its obligation to accommodate Mr. Khanna by placing him on paid leave, identifying ways that he could perform his duties remotely or without risk of infection, and holding his position open until he returned: Purdy v. Douglas College and others , 2016 BCHRT 117 at para. 50.
[27] The standard for accommodation is not perfection. It is reasonableness. Reasonable accommodation is satisfied where a respondent “could not have done anything else reasonable or practical to avoid the negative impact on the individual”: British Columbia (Public Service Employee Relations Commission) v. BCGSEU , 1999 CanLII 652 (SCC) at para. 38. What constitutes reasonable accommodation short of undue hardship is fact-specific and will turn on the particular circumstances of each case: Central Okanagan School District No. 23 v. Renaud , 1992 SCR 970. On an application to dismiss under s. 27(1)(c) the Tribunal will be alert to shortfalls in the evidence regarding relevant considerations and situations where the evidence requires testing through cross-examination: Purdy at para. 63.
[28] The parties do not appear to dispute that the standard the Branch adopted for senior store managers was requiring them to physically attend work. They also do not appear to dispute that the standard was adopted in good faith and is rationally connected to the performance of the job. The parties appear to agree that the only issue in this application is whether it is reasonably certain that the Branch will be able to establish at a hearing that it accommodated Mr. Khanna to the point of undue hardship.
[29] I am persuaded that the Branch will be able to establish that it accommodated to the point of undue hardship and therefore the complaint has no reasonable prospect of success for the following reasons.
[30] There is evidence before me of the steps taken by the Branch in the accommodation process. The Branch inquired about Mr. Khanna’s limitations, reviewed medical information, arranged an IME, found remote and isolated work Mr. Khanna could perform, and held his position until he could return to in-person work.
[31] The documentary evidence by way of the correspondence between the parties, including the occupational fitness assessment and IME, show the Branch actively attempted to understand the nature of Mr. Khanna’s disability and what jobs he could perform. The undisputed evidence is that during Mr. Khanna’s leave, the Branch maintained communication with him, inquiring about his limitations or restrictions in light of the developing understanding of how COVID-19 is spread.
[32] Mr. Khanna argues that the Branch failed to engage him in discussions of alternate positions he could fulfill and says he suggested duties he could perform remotely which were not considered. The documentary evidence contradicts Mr. Khanna’s assertion and shows that the Branch actively considered his suggestions for jobs. The correspondence shows that the Branch considered Mr. Khanna’s suggestions but ultimately concluded that there were no existing positions nor was there a fully remote position that could be created from bundling duties Mr. Khanna might be able to perform.
[33] I appreciate that Mr. Khanna believes that the Branch could have done more to accommodate him and says they could have created remote positions for which he would have been suitable. However, the evidence before me shows the Branch considered this possibility, reviewed the jobs Mr. Khanna could have performed, and ultimately concluded that they could not create such a role that would be productive and not simply a “make work project.” An employer must investigate alternative approaches to the point where “only unreasonable or impractical options for accommodation remain”: Council of Canadians with Disabilities v. Via Rail , 2007 SCC 15 at para. 130.
[34] In this case, on the whole of the evidence before me, I am satisfied that the Branch is reasonably certain to prove at a hearing that it reasonably accommodated Mr. Khanna to the point of undue hardship during the pandemic where Mr. Khanna’s disability prevented him from working in-person with others. I am therefore persuaded that Mr. Khanna’s complaint has no reasonable prospect of success and so I grant the Branch’s application to dismiss the complaint under s. 27(1)(c) of the Code .
IV CONCLUSION
[35] Mr. Khanna’s complaint has no reasonable prospect of success. I dismiss it under s. 27(1)(c) of the Code .
Edward Takayanagi
Tribunal Member