O’Brien-Hornsey v. British Columbia Ferry Services Inc., 2025 BCHRT 72
Date Issued: March 21, 2025
File: CS-003323
Indexed as: O’Brien-Hornsey v. British Columbia Ferry Services Inc., 2025 BCHRT 72
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:
Erin O’Brien-Hornsey
COMPLAINANT
AND:
British Columbia Ferry Services Inc.
RESPONDENT
REASONS FOR DECISION
APPLICATION TO DISMISS A COMPLAINT
Section 27(1)(c)
Tribunal Member: Kathleen Smith
Counsel for the Complainant: Erin O’Brien-Hornsey
Counsel for the Respondent: Nicole Toye and Madeline Lusk
I INTRODUCTION
[1] Erin O’Brien-Hornsey alleges that her former employer, British Columbia Ferry Services Inc. [ BC Ferries ], discriminated against her on the basis of physical disability and sex contrary to s. 13 of the Human Rights Code . She says that a culture of discrimination emerged in the last 18 months of her employment and that led to her being accused of misconduct, her version of events being dismissed, and ultimately to the suspension and termination of her employment.
[2] BC Ferries denies discriminating and asserts that it terminated Ms. O’Brien-Hornsey’s employment for reasons completely unrelated to her sex or physical disability. It says the decision was based strictly on repeat misconduct. BC Ferries asserts that the complaint has no reasonable prospect of succeeding at a hearing because it is based on speculation. BC Ferries applies to dismiss the complaint under s. 27(1)(c) of the Code .
[3] The question I must decide on this application is whether there is no reasonable prospect that Ms. O’Brien-Hornsey can prove at a hearing that her disability or sex were factors in the negative impacts she experienced in her employment.
[4] In this decision, I explain my reasons for dismissing the complaint in part. Specifically, I dismiss the discipline and termination allegations altogether. I also dismiss all other allegations related to disability. In short, I am satisfied, on the materials before me, that the discipline and termination allegations, as well as the disability-based allegations, have no reasonable prospect of success because they are too speculative. The allegations related to a culture of sexism in the workplace will proceed to a hearing.
[5] 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. I make no findings of fact.
II BACKGROUND
[6] BC Ferries provides ferry services for vehicles and passengers on twenty-five routes in BC.
[7] Ms. O’Brien-Hornsey worked for BC Ferries between 2008 and 2020. She was a Lead Operator and Supervisor on the Baynes Sound Connector [ BSC ], a ferry that operates between Buckley Bay on Vancouver Island and Denman Island. Throughout her employment, Ms. O’Brien-Hornsey was a member of the BC Ferry and Marine Workers’ Union [ Union ], and her employment was governed by a collective agreement between BC Ferries and the Union.
[8] Ms. O’Brien-Hornsey identifies as a woman with a disability. She describes the disability as a neurological impairment that causes some physical limitations. Ms. O’Brien-Hornsey’s disability is a result of a workplace injury that was later deemed permanent by WorkSafeBC. She now receives a permanent partial disability pension. As a result of her injury, Ms. O’Brien-Hornsey took several medical leaves between 2017 and 2019. The last medical leave started in June 2018. After completing a gradual return to work program, Ms. O’Brien-Hornsey returned to full-time work as a Lead Operator and Supervisor on the BSC in February 2019.
A. The Disability Allegations
[9] The complaint alleges that BC Ferries forced Ms. O’Brien-Hornsey to apply for long-term disability benefits [ LTD ] while she was on a return-to-work plan. Ms. O’Brien-Hornsey also alleges that in January 2019, BC Ferries told her that she had ten days to return to work or they would replace her. She says she was approved for LTD but did not accept the benefits because she was committed to returning to work. She alleges that these are examples of BC Ferries’ intention to remove her from her position due to the recurring nature of her injury and amount to disability-based discrimination.
[10] The other disability-related allegation relates to Ms. O’Brien-Hornsey’s access to benefits through WorkSafeBC. She alleges that, prior to December 2020, BC Ferries did not take responsibility for her injury and blocked her process at WorkSafeBC. She says she had to take her claim to the Workers’ Compensation Appeal Tribunal [ WCAT ], and it was only after she lost her job that BC Ferries accepted responsibility for her injury. Ms. O’Brien-Hornsey now receives a small permanent partial disability payment.
[11] BC Ferries says that it accommodated Ms. O’Brien-Hornsey’s disability-related needs reasonably and appropriately throughout her employment including by completing a full ergonomic assessment of her workstation and replacing certain equipment to prevent recurrence of her injury and supporting her medical leaves and returns to work. BC Ferries denies the allegations that it forced Ms. O’Brien-Hornsey to apply for LTD and told her she had ten days to return to work or her position would be filled. BC Ferries confirms that she returned to her previously held position of Lead Operator and Supervisor after her leaves, including in February 2019.
[12] BC Ferries also denies that it “blocked” Ms. O’Brien-Hornsey’s WorkSafeBC process as alleged. It says that it made submissions at WorkSafeBC and WCAT according to the applicable procedures and doing so is neither discriminatory nor improper.
B. Termination Allegations
[13] BC Ferries terminated Ms. O’Brien-Hornsey’s employment in April 2020. The parties disagree on the reasons behind the termination and offer differing perspectives on the events leading up to the termination. Two incidents are at the heart of the termination allegations: one on June 15, 2019 [the June 2019 incident ] and one on March 3, 2020 [the March 2020 incident ].
[14] Ms. O’Brien-Hornsey denies that the two incidents justified the termination of her employment and describes being “set up” by BC Ferries. She highlights that she was terminated from her employment some months after returning to work after a medical leave related to her injury and just after she asked BC Ferries for support to deal with conflict and challenging dynamics onboard the BSC.
[15] Ms. O’Brien-Hornsey says that she provided years of excellent service to BC Ferries and was promoted from casual deckhand to Lead Operator as a result of her superior performance, professionalism, leadership, and competency working with the public. She does not accept that her off-duty conduct during the June 2019 and March 2020 incidents justify the discipline imposed by BC Ferries.
[16] BC Ferries says that the termination decision was based solely on Ms. O’Brien-Hornsey’s inappropriate behaviour, including abuse of her authority. BC Ferries relies on the June 2019 and March 2020 incidents where they say Ms. O’Brien-Hornsey engaged in repeat off-duty misconduct. BC Ferries says that it investigated both incidents and concluded that not only had she engaged in misconduct, but that Ms. O’Brien-Hornsey had been dishonest during the investigations and failed to take accountability for her conduct.
[17] The parties agree that the Union grieved the termination. BC Ferries says that it reached a confidential settlement with the Union, but Ms. O’Brien Hornsey refused to sign the settlement agreement, and the Union withdrew the grievance.
[18] Ms. O’Brien-Hornsey alleges that there were issues with the settlement, and the Union refused to look at the big picture of the situation and withdrew their support.
C. Other Allegations
[19] In addition to the allegations described above, Ms. O’Brien-Hornsey makes several broader allegations regarding the workplace environment and culture, including misogyny. Below, I summarize the allegations related to a sexist environment.
[20] Ms. O’Brien-Hornsey alleges that:
a. BC Ferries placed men on her crew that were known to be sexually inappropriate and have problems taking direction from women.
b. She had to repeatedly speak to crew about not using foul language and making sexually inappropriate jokes.
c. A crew member told her that he would transfer if another woman were hired.
d. Male members of the crew with less seniority and responsibility challenged and undermined her authority.
e. The environment became toxic and stressful for her as a woman due to disrespect and insubordination.
f. She asked BC Ferries for assistance, including training and support to resolve conflict and low morale among the crew and received no response.
[21] Regarding the allegations of conflict and dysfunction among the crew, BC Ferries says that it initiated an investigation into concerns raised by employees working on the BSC about interpersonal conflicts among them in late June 2019. BC Ferries says that the investigation was conducted in the usual manner over the next several months. I refer to this as the BSC investigation.
[22] BC Ferries says that during the BSC investigation it met with Ms. O’Brien-Hornsey several times and at no point did she allege that she was experiencing sexual harassment or otherwise experiencing discrimination based on sex. It also denies placing men on her crew who were known to be problematic. BC Ferries says that to the extent Ms. O’Brien-Hornsey raised concerns about a specific employee, they were addressed and are unrelated to the discipline and dismissal decisions. At the same time, I observe that BC Ferries does not say what specific steps it took. It also does not provide any further details about what steps it took to investigate or address the other allegations related to a culture of misogyny and disrespect for women on the BSC.
[23] I pause here to note that the complaint contains other allegations against BC Ferries that do not allege contraventions of the Code . For example, there are several allegations related to favouritism and nepotism in regard to hiring and promotions at BC Ferries, as well as safety concerns. The complaint also contains allegations that do not concern Ms. O’Brien-Hornsey including interactions between third parties such as alleged extra-marital affairs, alleged harassment between co-workers, and alleged improper conduct towards community members. Where the allegations do not allege a contravention of the Code , I have not reproduced or considered them further.
III DECISION
[24] BC Ferries applies to dismiss Ms. O’Brien-Hornsey’s complaint on the basis that it has no reasonable prospect of success: Code, s. 27(1)(c). The onus is on BC Ferries to establish the basis for dismissal.
[25] 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.
[26] 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 .
[27] 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 .
[28] For her complaint to succeed at a hearing, Ms. O’Brien-Hornsey will have to prove that she has a characteristic protected by the Code , she was adversely impacted in employment, and her protected characteristic was a factor in the adverse impact: Moore v. British Columbia (Education) , 2012 SCC 61 at para. 33.
[29] There is no dispute in this case that Ms. O’Brien-Hornsey has the protected characteristics of sex and physical disability or that she experienced an adverse impact when BC Ferries terminated her employment.
[30] The parties disagree; however, on whether Ms. O’Brien-Hornsey’s sex or disability factored into the termination decision and the other alleged adverse impacts.
[31] I begin with the discipline and termination decision.
D. Discipline and Termination of Employment
[32] Ms. O’Brien-Hornsey alleges that her disability and sex were factors in the termination of her employment. She argues that her materials show that the complaint has a reasonable prospect of succeeding at a hearing.
[33] In support of her position, Ms. O’Brien-Hornsey attached an extensive amount of evidence to her response submission. It appears that she has reproduced materials that she prepared for the Union grievance process as well as for proceedings before WorkSafeBC and the Workers’ Compensation Appeal Tribunal. The documents before me include photographs, various notes (typed and handwritten), emails, certificates, videos, character references, witness statements, medical forms, phone records, and an audio recording from her WCAT hearing. Ms. O’Brien-Hornsey refers to some but not all of the documents in her submission to the Tribunal. Not all of the materials gathered for the grievance and workers’ compensation processes are relevant to the Tribunal’s process.
[34] BC Ferries argues that Ms. O’Brien-Hornsey’s protected characteristics played no part in its decision-making. It asserts that the entire complaint is based on speculation and not supported by evidence. Specifically, BC Ferries argues there is no reasonable prospect of proving the connection required to prove discrimination.
[35] In support of the application, BC Ferries included affidavits from the former Director of Employee Relations [ Director ] and the current Manager of Labour Relations, People & Culture.
[36] The Director says that she was involved in the investigation into misconduct allegations against Ms. O’Brien-Hornsey and the discipline decision. The Director also says that she approved the termination decision in April 2020 based on information gathered from BC Ferries’ investigations. The Director specifically denies that Ms. O’Brien-Hornsey’s sex or disability came up during the discussions about the appropriate disciplinary response.
[37] The Director attached extensive documentation to her affidavit relating to the discipline and termination decisions including:
a. Staff reports about Ms. O’Brien-Hornsey’s off-duty conduct.
b. A screenshot of Ms. O’Brien-Hornsey’s text message to a co-worker that BC Ferries considered to be threatening.
c. Written statements and notes gathered and prepared by the Employee Relations Manager during the investigations, including notes taken during meetings between BC Ferries and Ms. O’Brien-Hornsey regarding the June 2019 and March 2020 incidents.
d. The suspension letter dated July 22, 2019.
e. Screenshots from Twitter where a BC Ferries customer complained about Ms. O’Brien-Hornsey’s actions on March 3, 2020.
f. The transcript of a voicemail from Ms. O’Brien-Hornsey after the March 2020 incident.
g. The termination letter dated April 6, 2020.
h. Documents related to Ms. O’Brien-Hornsey’s medical leaves of absence and return to work.
i. A review decision from WorkSafeBC regarding Ms. O’Brien-Horsey’s entitlement to permanent partial disability benefits.
[38] For the following reasons, I am persuaded that the discipline and termination allegations have no reasonable prospect of success.
[39] I begin by observing that Ms. O’Brien-Hornsey’s response to the dismissal application focuses on challenging BC Ferries conclusions about her conduct and honesty rather than showing how her disability or sex factored into the decision-making. For example, she alleges that BC Ferries denied her a fair process during the investigations into her conduct. Her response includes allegations that BC Ferries altered facts, removed video evidence, and did not take a statement from a key witness who is also a woman. She also alleges that BC Ferries favoured the statements of men. In short, Ms. Hornsey-O’Brien argues that a more thorough review of the evidence is required to show that her evidence ought to be given more weight.
[40] The difficulty with Ms. O’Brien-Hornsey’s position is that the questions before the Tribunal are not whether the investigations reached fair and just conclusions or whether the termination was justified. Rather, the only question for this Tribunal is whether a protected characteristic factored into the discipline and termination decisions.
[41] In this section, I review the parties’ evidence regarding the discipline and termination decisions and consider whether Ms. O’Brien-Hornsey has taken her allegations of discrimination out of the realm of speculation. Specifically, whether the alleged connection between her protected characteristics and the decisions are based on more than mere speculation.
1. Ten-day suspension
[42] The June 2019 incident led to an investigation and resulted in BC Ferries issuing Ms. O’Brien-Hornsey a ten-day suspension.
[43] The parties offer different perspectives about what happened on June 15, 2019.
[44] BC Ferries asserts that while off-duty Ms. O’Brien-Hornsey engaged in behaviour that it considered inappropriate, disrespectful, and lacking in integrity. It also says that when confronted with witness accounts of her conduct, she was dishonest and failed to take accountability for her actions.
[45] BC Ferries says that Ms. O’Brien-Hornsey attended the Denman Terminal with another parent and their children intending to board as foot passengers. According to BC Ferries, the group missed the call for boarding and when they arrived at the passenger gate, the maximum passenger capacity had already been reached, and they were unable to board the BSC for that sailing.
[46] BC Ferries says that Ms. O’Brien-Hornsey became angry and yelled at deck crew in front of other customers; demanded that the crew remove already boarded vehicles or passengers so they could board; demanded that the Lead Operator look into the children’s eyes and tell them they would not be boarding; and later sent a threatening text message to the Lead Operator.
[47] BC Ferries says that it initiated an investigation after receiving a report from the Lead Operator. His email reported that Ms. O’Brien-Hornsey had been involved in an incident that was stressful for the crew and passengers and had delayed the sailing time by 15 minutes. In his words, she contested his decision not to let them on the ship in a confrontational manner and in full view of passengers.
[48] During the investigation, BC Ferries heard from the Lead Operator, Ms. O’Brien-Hornsey, and two members of the crew that day.
[49] BC Ferries says that following the investigation it concluded that Ms. O’Brien-Hornsey had behaved in a manner that was inconsistent with her role as a leader. BC Ferries issued a ten-day suspension, and the suspension letter set out expectations regarding her behaviour moving forward, including that any further incidents of this or similar nature may lead to further corrective action, including a review of her employment status.
[50] It is apparent from the suspension letter that BC Ferries did not accept Ms. O’Brien-Hornsey’s account of the June 2019 incident. Instead, it relied on witness accounts to conclude that she had engaged in unacceptable and inappropriate conduct including attempts to intimidate co-workers. BC Ferries also found her to be dishonest throughout the investigation. BC Ferries described the conduct in totality as lacking in integrity, and unethical.
[51] The main argument advanced by Ms. O’Brien-Hornsey regarding this incident is that she did not yell or use disrespectful language during the June 2019 incident. She believes that the crew members mistakenly attributed the angry outburst of the other parent to her. She also denies that her text message to a co-worker following the incident was threatening. She says her intent was to seek guidance from him as to whether the incident required follow up or documentation.
[52] From Ms. O’Brien-Hornsey’s perspective the incident was one of poor communication around ferry loading protocol. She asserts that there was a problem with the crew’s decision-making that day due to a lack of experience, situational awareness, connection to community, and creativity.
[53] In her response submission, Ms. O’Brien alleges that during both investigations BC Ferries made false accusations against her, did not give her version of events due consideration, and altered facts. It is not clear to me; however, which facts she is alleging were altered in relation to this incident. She also says that during the course of the investigations, BC Ferries dismissed the concerns she had raised previously about crew conduct and the dynamics onboard the BSC. I understand her to be referring to emails she sent on July 1, 2, and 3, requesting workplace conflict training and assistance with performance managing a specific member of her crew.
[54] Even when I take Ms. O’Brien-Hornsey’s evidence at its highest, it is not apparent to me that her sex or disability factored into the discipline decision, including how much weight was given to her version of events. She clearly disagrees with how her conduct was described by the crew members who gave statements to BC Ferries, the weight given to that evidence, and the completeness of the investigation. She also disagrees with the conclusion that she was not honest about her conduct towards her co-workers. However, she has not pointed out any evidence that could reasonably support a conclusion that her sex or disability were a factor in how BC Ferries approached the investigation and discipline decision. Ms. O’Brien-Hornsey also does not explain how her requests for training and support to manage onboard conduct and dynamics during this same period relates to the outcome of the investigation and/or connects to her protected characteristics.
[55] I find it relevant that Ms. O’Brien-Hornsey does not dispute that there was an exchange between members of her group and members of the crew that involved yelling and swearing. I also find it relevant that she acknowledges that the other parent had an angry outburst, and the Lead Operator had to become involved in the situation at the gate. Lastly, I find it significant that there is no dispute that the encounter at the foot passenger gate resulted in the ferry leaving 15-minutes behind schedule.
[56] In this decision it is not my role to decide whether Ms. O’Brien-Hornsey was directly responsible for the scene and delay. However, I do find it persuasive that the evidence before me confirms that Ms. O’Brien-Hornsey was present when the incident unfolded, and that a disturbance causing ferry delays is a serious matter. On her own evidence, Ms. O’Brien-Hornsey considered that the incident may require follow-up or documentation. I also find it persuasive that BC Ferries has put forward a substantial amount of evidence regarding the investigation and decision-making process to demonstrate a non-discriminatory explanation for the discipline.
[57] In contrast, Ms. O’Brien-Hornsey’s position that sex and disability factored into the disciplinary outcome appears to be based solely on speculation. Throughout her submission she uses language indicative of speculation including the “potential” of a human rights violation and the suggestion that certain conduct by BC Ferries “may” be based on sex or disability, and “may” indicate or constitute discrimination.
[58] There must be at least some evidence to support an inference that her sex or disability factored into the discipline decision. In my view, that evidence is lacking. It is not enough to say that she is a woman with a disability and BC Ferries preferred the evidence of the male witnesses, or that she is a woman, and the male witnesses made false accusations against her. In sum, Ms. O’Brien-Hornsey has not taken this allegation out of the realm of speculation. It therefore follows that this allegation has no reasonable prospect of success.
2. Termination
[59] The March 2020 incident led to an investigation and resulted in BC Ferries terminating Ms. O’Brien-Hornsey’s employment.
[60] The parties offer different perspectives about what happened on March 3, 2020.
[61] BC Ferries asserts that Ms. O’Brien-Hornsey engaged in off-duty misconduct while attending the Denman Terminal as a vehicle passenger. Specifically, BC Ferries says that Ms. O’Brien-Hornsey intimidated a ticketing agent, then cut in line ahead of other ferry passengers in order to be boarded on a priority basis. BC Ferries says that when she was confronted with reports of her behaviour, Ms. O’Brien-Hornsey denied any misconduct and blamed others.
[62] BC Ferries says it initiated an investigation after receiving reports from the Lead Operator and Ticketing Agent. It says that during the investigation, Ms. O’Brien-Hornsey agreed that she had removed a cone to enter Lane One for priority boarding. However, she denied behaving in an aggressive or intimidating manner. She characterized her interaction with the Ticketing Agent as a misunderstanding. BC Ferries says it gathered information from several employees during the investigation and ultimately accepted the version of events presented by the Ticketing Agent because it was corroborated by the reports of two other employees.
[63] The investigation concluded that Ms. O’Brien-Hornsey had abused her authority as a senior officer, acted in a manner intended to intimidate her colleagues, failed or refused to admit she had behaved inappropriately, blamed her colleagues for her misconduct, was dishonest, damaged or could have damaged BC Ferries’ reputation, and disregarded passenger safety.
[64] It is apparent from the termination letter that BC Ferries did not accept Ms. O’Brien-Hornsey’s account of events on March 3, 2020. BC Ferries concluded that her behaviour lacked professionalism, went against the company’s core values, and did not show improvement despite clear expectations. BC Ferries further concluded that there was an irreparable breach of trust based on both incidents and her conduct during both investigations.
[65] The main argument advanced by Ms. O’Brien-Hornsey regarding this incident is that she did not raise her voice and did not intend to intimidate the Ticket Agent to gain priority passage. As I understand her position, she asserts that her sex and/or disability were factors in her account of events being disbelieved.
[66] In this decision, it is not my role to decide whether or not Ms. O’Brien-Hornsey abused her authority to gain priority passage on the sailing, or whether her conduct justified the severe consequence of job loss.
[67] With respect to the investigation of the March 2020 incident and subsequent termination decision, I am not persuaded that Ms. O’Brien-Hornsey has taken this allegation out of the realm of speculation. I find it relevant that BC Ferries ultimately preferred the evidence of the Ticketing Agent, who is also a woman. I also find it relevant that Ms. O’Brien-Hornsey appears to acknowledge that she jumped the queue that day and caused problems for the Ticketing Agent. As I understand her argument, it was not her intention to do so, and that the situation likely resulted from confusion and miscommunication.
[68] As set out above, there must be at least some evidence to support an inference that her sex or disability played a part in the assessment of her conduct that day, including the termination decision. Again, the evidence is lacking. In these circumstances, Ms. O’Brien-Hornsey has not taken her allegation out of the realm of speculation. It follows that the allegation has no reasonable prospect of success.
3. Disability
[69] In this section I consider the other disability-based allegations.
[70] In her response to the dismissal application, Ms. O’Brien-Hornsey asserts that BC Ferries intended to remove her from her position from the time she returned to full duties in February 2019. In support of her position, Ms. O’Brien-Hornsey refers to the three events set out in the complaint: being forced to apply for LTD, being told that she had ten days to return to work or her position would be filled, and BC Ferries claiming no responsibility for her injury and blocking her process with WorkSafeBC.
[71] BC Ferries denies the specific allegations and argues generally that there is no evidence to support a conclusion there was discrimination based on disability.
[72] I begin with the allegations that BC Ferries forced Ms. O’Brien-Hornsey to apply for LTD and told her she had ten days to fully return to work or she would be replaced. As I understand it, these allegations are interconnected.
[73] Ms. O’Brien-Hornsey says that she had a conversation with a BC Ferries Employee Relations Manager in October 2018, who encouraged her to apply for LTD. She says she was confused because she was in the process of a gradual return to work plan and had no intention of going on LTD.
[74] With respect to the allegation that BC Ferries told her she had ten days to return to work or her position would be filled, Ms. O’Brien-Hornsey relies on notes provided by a Union representative regarding a meeting on January 5, 2019, and an email from the same Union representative written on September 17, 2023.
[75] I have reviewed the notes and the email. The January 2019 notes indicate that there was a meeting between Ms. O’Brien-Hornsey, the Employee Relations Manger, and the Captain about her ongoing injury. The notes indicate that Ms. O’Brien-Hornsey’s short-term disability [ STIIP ] benefits were ending, therefore she needs to either apply for LTD or return to work. The notes go on to state that Ms. O’Brien-Hornsey reported feeling able to return to work and that she would see her doctor to get approval for a return to full time work.
[76] The September 2023 email from the Union representative confirms that there was a conversation in January 2019 about her STIIP benefits ending. The Union representative wrote in her email that BC Ferries’ position was that Ms. O’Brien-Hornsey had to either return to work or go on LTD and they would post her job. The email also confirms that Ms. O’Brien-Hornsey wanted to return to work full time and would ask her doctor to clear her for full duties. The email does not provide any other context or information about what was meant by “posting her job.”
[77] BC Ferries specifically denies that it forced Ms. O’Brien-Hornsey to apply for LTD or told her she had ten days to return to work or her position would be filled. The Director attaches a copy of a letter from BC Ferries to Ms. O’Brien-Hornsey dated October 10, 2018, which provided information about her entitlement to STIIP and LTD. According to BC Ferries, this letter is in line with its usual practice. The letter indicates that Ms. O’Brien-Hornsey’ last day of entitlement to STIIP is November 10, 2018, and that she may be eligible for LTD if she is unable to return to work in an unrestricted capacity by then. The letter also notes that her medical benefits will end when her entitlement to STIIP ends, therefore, it is important to file for LTD immediately or risk being without medical benefits until the LTD claim is approved.
[78] According to BC Ferries, Ms. O’Brien-Hornsey applied and was approved for LTD benefits effective December 10, 2018. Then, on February 4, 2019, she returned to full duties. BC Ferries provided a copy of the Medical Assessment Forms completed by Ms. O’Brien-Hornsey’s doctor during her leaves, including one from January 29, 2019, that cleared her to return to full duties and hours without restriction.
[79] When I consider all of the evidence from the parties about the LTD benefits, I am not persuaded that there is a reasonable prospect of establishing that BC Ferries discriminated based on disability by forcing Ms. O’Brien-Hornsey to apply for LTD rather than support her return to work. On the contrary, the evidence before me reasonably indicates that BC Ferries informed Ms. O’Brien-Hornsey about important deadlines related to her benefits, her options, and the potential consequences if she did not apply for LTD promptly. Moreover, the evidence is clear that BC Ferries returned Ms. O’Brien-Hornsey to her position immediately after receiving information from her doctor that cleared her for a full return.
[80] I am similarly not persuaded that there is a reasonable prospect of establishing that BC Ferries discriminated by telling Ms. O’Brien-Hornsey that she had ten days to return to work or her position would be filled. The undisputed evidence before me shows that BC Ferries returned Ms. O’Brien-Hornsey to her same position after each medical leave based on the medical information she provided. The evidence also indicates that from the fall of 2019, Ms. O’Brien-Hornsey’s goal was to return to full duties and hours, her doctor cleared her to do so at the end of January 2019, and within days she was back at work full time.
[81] Lastly, I considered the allegation that positions taken by BC Ferries during the WorkSafeBC process amount to discrimination based on disability. The fact that BC Ferries did not initially support Ms. O’Brien-Hornsey’s claim for a permanent disability award on its own is not evidence of discrimination based on disability. Without something more, I find this allegation to be too speculative. As a result, this allegation has no reasonable prospect of success.
[82] In summary, there is no reasonable prospect, based on the materials before me, that the Tribunal would conclude that BC Ferries discriminated against Ms. O’Brien-Hornsey in the manner it accommodated her disability, including during the administration of benefits and return to work process.
4. Sex
[83] I have already dismissed the allegation that sex was a factor in the discipline and termination decisions. In this section, I consider the other sex-based based allegations.
[84] Ms. O’Brien-Hornsey alleges that during the last 18 months of her employment, a culture of misogyny and disrespect for women in authority emerged.
[85] She alleges that as one of the few women in a position of command, she experienced insubordination, deference to male counterparts, and sexually inappropriate jokes and language. Ms. O’Brien-Hornsey further alleges that she asked for help and BC Ferries management failed to support her in building a safe and professional team.
[86] BC Ferries’ primary argument is that Ms. O’Brien-Hornsey did not raise any allegations concerning sex or harassment during the BSC investigation in 2019, therefore the termination could not have been in response to raising such allegations.
[87] BC Ferries provided copies of emails that it collected during the BSC investigation. Below I summarize the main points contained in those emails.
[88] Emails from Ms. O’Brien-Hornsey included the following:
a. A request to send members of her team to a workplace conflict course or bring someone in to do shipboard training.
b. A report of recent concerns with a specific employee including language, sexual joking, not taking her direction seriously, performance and attitude issues, undermining her experience and knowledge. She asked for training and support to deal with his style of job performance.
c. A report about a specific employee’s attitude, mood, ignoring direction, and inconsistent and unpredictable job performance.
[89] Email from other crew members included reports of:
a. Toxic atmosphere amongst crew.
b. Recent history of discord and tension.
c. Stressful and unprofessional environment.
d. Employees calling in sick due to the atmosphere.
[90] BC Ferries says that all of the complaints were investigated thoroughly and produced copies of handwritten investigation notes in support of this position. I observe; however, that BC Ferries did not produce a report or other summary of relevant findings and actions taken, if any.
[91] Where BC Ferries does not specifically address the allegation that Ms. O’Brien-Hornsey was exposed to an emerging culture of sexism onboard the BSC, I am not persuaded to dismiss this aspect of her complaint. Particularly where she appears to have raised specific concerns about men on her crew using sexually inappropriate language, not taking her direction seriously, and undermining her as a female leader.
[92] My decision not to dismiss this part of the complaint means that Ms. O’Brien-Hornsey’s allegation that she was exposed to a growing culture of sexism onboard the BSC is more than mere speculation. In reaching this conclusion I am not commenting on her chances of success, only that she has met the low threshold required to proceed to a hearing.
IV CONCLUSION
[93] I grant the application to dismiss under s. 27(1)(c) in part.
[94] The discipline and termination allegations are dismissed.
[95] The disability-based allegations are dismissed.
[96] The allegation of a culture of sexism onboard the BSC will proceed to a hearing.
Kathleen Smith
Tribunal Member