Costa v. Northern Health Authority and another, 2025 BCHRT 78
Date Issued: April 1, 2025
File: CS-006383
Indexed as: Costa v. Northern Health Authority and another, 2025 BCHRT 78
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:
Anthony Joseph Costa
COMPLAINANT
AND:
Northern Health Authority and Michael Moran
RESPONDENTS
REASONS FOR DECISION
APPLICATION TO DISMISS A COMPLAINT
Sections 27(1)(a), 27(1)(c), 27(1)(d)(ii), and 27(1)(e)
Tribunal Member: Andrew Robb
Counsel for the Complainant: Lindsay A. Waddell
Counsel for the Respondent Northern Health Authority: Melissa Perry
Counsel for the Respondent Michael Moran: David J. Bell
I INTRODUCTION
[1] Dr. Anthony Joseph (Joe) Costa filed a complaint against Dr. Michael Moran and Northern Health Authority [ NHA ]. Dr. Costa and Dr. Moran are both orthopedic surgeons who practiced in a hospital operated by NHA. Dr. Costa says he had a disability which prevented him from fully participating in the hospital’s on-call schedule for orthopedic surgeons. He says the respondents are responsible for failing to modify the schedule to accommodate his medical needs, and for removing some of his hospital privileges, including access to operating rooms, because he was not fully participating in the on-call schedule. He says this was discrimination regarding his employment, contrary to s. 13 of the Human Rights Code .
[2] The respondents deny discriminating. They say they did not have an employment relationship with Dr. Costa, he did not have a disability requiring accommodation, and, despite that, they reasonably accommodated him and his scheduling needs. They each apply to dismiss the complaint for several reasons, in addition to their argument that Dr. Costa has no reasonable prospect of proving a contravention of the Code . NHA says it would not further the purposes of the Code to proceed with the complaint against NHA because NHA remedied the alleged discrimination. Dr. Moran says it would not further those purposes to proceed with the complaint against him because he is an individual respondent who was acting in the course of his employment. Both respondents say the complaint was filed for improper motives, including punishing them and forcing changes to the on-call schedule. Finally, NHA says the complaint is not within the Tribunal’s jurisdiction because, under the Hospital Act , the complaint is within the exclusive jurisdiction of the Hospital Appeal Board.
[3] Dr. Costa responded to the applications to dismiss his complaint, and the respondents filed reply submissions. After the reply submissions were filed, Dr. Costa applied to file a further submission. For the reasons set out below, I have decided to grant Dr. Costa’s application to file a further submission, in part, and I have decided to deny the respondents’ applications to dismiss his complaint. Specifically:
a. I am not satisfied that Dr. Costa has no reasonable prospect of proving he was an employee of NHA.
b. I am not satisfied that Dr. Costa has no reasonable prospect of proving Dr. Moran’s conduct was sufficiently connected to Dr. Costa’s employment, to establish discrimination under the Code .
c. I am not satisfied that Dr. Costa has no reasonable prospect of proving a connection between his disability and the adverse impacts alleged in his complaint, and I am not satisfied that the respondents are reasonably certain to prove they reasonably accommodated him.
d. The respondents have not established that it would not further the purposes of the Code to proceed with the complaint, against both respondents.
e. The respondents have not established that Dr. Costa filed the complaint for improper purposes or in bad faith.
f. The Hospital Act does not oust the Tribunal’s jurisdiction. The Tribunal has jurisdiction over the complaint.
[4] This decision is only about the complaint filed July 16, 2021, and amended January 3, 2023. On August 9, 2022, Dr. Costa filed a separate complaint, alleging that NHA and Dr. Costa and another individual retaliated against him for filing this complaint. At this time, the two complaints are proceeding separately in the Tribunal’s process. This decision does not address the retaliation complaint.
[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.
II BACKGROUND
[6] NHA is a regional health authority, governed by a board of directors. NHA operates the University Hospital of Northern BC [the Hospital ]. Dr. Costa was a member of the Hospital’s Division of Orthopaedics [the Division ]. The Division is part of the Hospital’s Department of Surgery. The Division’s members are NHA medical staff with a speciality in orthopedic surgery who have privileges at the Hospital. These privileges include access to the Hospital’s operating rooms and other Hospital-based clinical services for their patients.
[7] Dr. Costa’s wife, Dr. Denise Mackey, was also a member of the Division. In addition to being members of the Division, Dr. Costa and Dr. Mackey had a private medical practice. They both joined the Division in 2013, each of them on a 0.5 full time equivalent [ FTE ] basis, in a kind of job-share arrangement. Between the two of them, they shared one FTE position, including shared allotment of operating room [ OR ] time and on-call duties.
[8] Dr. Moran was also a member of the Division. During most of the events described in Dr. Costa’s complaint, Dr. Moran was Head of the Division. As Division Head, his role included acting as a liaison between Division members and Hospital and NHA administrators, and organising and presiding over Division meetings.
[9] Dr. Costa was paid by the provincial Medical Services Plan, not NHA, for the services he provided to patients at the Hospital. NHA says it did not pay him a salary or benefits, but it did make some payments to him. NHA made payments to Dr. Costa, and other Division members, as a premium for physicians in rural practice. NHA says these payments were made under an agreement between the provincial government and the provincial medical association, with the funds for the payments provided by the Ministry of Health and administered by NHA.
[10] NHA also made payments to Dr. Costa, and other Division members, under the Medical On-call Availability Program [ MOCAP ]. MOCAP refers to a contract between NHA and medical staff under which medical staff agree to provide on-call availability for emergency care of patients.
[11] Under MOCAP, NHA pays members of the Division to provide 24/7 on-call availability, so that there is always someone available to respond to service calls directed to the Division. The Medical Services Plan pays Division members for any services provided to patients while on call.
[12] At some point before the events described in the complaint, Division members agreed on an on-call schedule, to ensure the Division provides 24/7 on-call availability. The schedule consists of a rotation in which each 1.0 FTE member of the Division was on call for seven days, in total, out of every seven weeks. In any given week, one member of the Division was on call Monday and Tuesday, a second member on Wednesday and Thursday, and a third member from Friday to Sunday. Since Dr. Costa and Dr. Mackey were each 0.5 FTE members of the Division, they shared their call responsibilities. The two of them, together, were on call for the same amount of time as each 1.0 FTE member of the Division, with their days on call shared between them at their own discretion.
[13] NHA says each member of the Division is responsible for their own on-call shifts. They can agree to swap shifts, on an ad hoc basis. NHA sometimes appoints locum physicians to facilitate on-call coverage when an on-call physician is absent. NHA says the responsibility for finding a locum is generally up to the absent physician, but NHA can assist physicians to secure locum arrangements.
[14] Under NHA’s MOCAP contract with the Division, Division members are required to take calls from the Prince George region. NHA’s evidence is that there was, during the time period of the complaint, a “manpower resource deficit for orthopedic surgery” in NHA’s North West and North East regions. Consequently, NHA asked Division members to take calls, while they were on call, from these regions, in addition to Prince George. This created extra work for Division members, including more calls, more patient transfers to the Hospital, and more emergency surgeries. Dr. Costa says this became a contentious issue in the Division, and there were ongoing discussions about how to structure on-call responsibilities.
[15] Starting in May 2019, Dr. Costa went on leave from work, for about 14 weeks. He says this was due to symptoms of depression related to the issue of how on-call responsibilities should be structured. Dr. Moran says he understood Dr. Costa’s leave was due to stress related to the responsibilities of being on call. Dr. Moran says that while Dr. Costa was on leave, other members of the Division, not including Dr. Mackey, covered Dr. Costa’s on-call shifts.
[16] Dr. Costa returned to work in August 2019, and re-joined the Division’s regular on-call rotation. He says he continued to experience stress related to on-call responsibilities.
[17] Shortly after his return to work, Dr. Costa obtained funding from the provincial medical association’s Specialist Services Committee for a project aimed at improving the quality of care provided by orthopedic surgeons [the SSC Project ]. Dr. Costa says Division members later signed a memorandum of understanding about the SSC Project, and agreed to work together on it, with Dr. Costa as the project lead.
[18] Starting around February or March 2020, Dr. Moran says Dr. Costa refused to take calls from the North West or North East regions of NHA, when he was on call.
[19] On March 5, 2020, Dr. Costa sent an email to NHA administrators, saying he was concerned about the Division being required to provide on-call services to the North West and North East regions of NHA, in addition to Prince George. His email said this had resulted in a large increase in the number of emergency orthopedic cases at the Hospital, without additional funding or resources to manage these patients. Dr. Moran was copied on the email and responded to Dr. Costa, saying, “I agree with what you are saying. Keep pushing.”
[20] In May 2020, Dr. Costa’s family physician, Dr. T, recommended that Dr. Costa be relieved of on-call duties for the next seven-week on-call rotation. Dr. Moran says other members of the Division, not including Dr. Mackey, covered Dr. Costa’s on-call shifts during this time. While relieved from his on-call responsibilities, Dr. Costa continued with the rest of his practice, including his OR time at the Hospital and his work on the SSC Project.
[21] On July 6, 2020, a lawyer retained by Dr. Costa and Dr. Mackey sent a letter to Dr. Moran and other members of the Division. The letter referred to the requirement for on-call members of the Division to cover calls from the North West and North East regions. The letter said this was unfair, and invited Division members to discuss the issue at their next meeting, with a view to arriving at a consensus position to be presented to NHA. The letter did not refer to Dr. Costa’s stress or any mental health issues related to the on-call schedule.
[22] On July 16, 2020, Dr. Moran emailed Dr. Costa to say he understood that Dr. Costa would be returning to the on-call schedule in August 2020. Dr. T later contacted Dr. Moran and recommended that Dr. Costa be relieved from on-call duties for a further seven-week rotation. Once again, Dr. Moran says other members of the Division, not including Dr. Mackey, covered Dr. Costa’s on-call shifts during this time.
[23] Dr. T later revised her recommendation again, and said Dr. Costa should not return to the on-call rotation until December 2020.
[24] Dr. Costa’s complaint says that on September 23, 2020, Dr. Moran called him and said he planned to put him back on the on-call schedule. Dr. Costa says he asked Dr. Moran to be more supportive of his mental health, and Dr. Moran said, “now you’ve pissed me off,” and “why don’t you just quit like you said you would?” Dr. Moran’s application to dismiss does not address this allegation.
[25] On September 24, 2020, Dr. Moran spoke to the Hospital’s Chief of Medical Staff, Dr. B, about the Division’s desire to get Dr. Costa back on the on-call schedule. They discussed the possibility of bringing in a mediator. Dr. Moran wrote an email saying he was open to this, but “…frankly I can’t see a way out. I still plan to place him back on the call schedule as of Jan 1, 2021, with no caveats. He only does 3 ½ day shifts every 7 weeks so the call burden is not huge. My ‘goodwill’ has run out.”
[26] NHA continued to allocate OR time to Dr. Costa from April 2020 to January 2021, even though he was relieved from on-call duties during that time. There is evidence that other Division members believed it was unfair that Dr. Costa continued to receive OR time at the Hospital, without contributing to the on-call schedule.
[27] NHA says the Hospital manages OR time to best meet the community’s clinical service needs. NHA says it has traditionally allocated elective (i.e. non-urgent) OR time to members of the Division on a basis roughly proportionate to their on-call contribution. NHA says other factors are also considered, like the length of a member’s waitlist, and provincial targets for wait times for surgery.
[28] On October 8, 2020, Dr. B emailed Dr. Costa, requesting a plan for his return to full on-call duties, and a medical evaluation in support of his plan.
[29] In a letter dated October 8, 2020, Dr. T wrote that Dr. Costa had been diagnosed with a major depressive episode, and his treatment included work restrictions that entailed removing him from the on-call schedule, as it was making his symptoms worse. The letter said Dr. Costa had outlined a number of conditions for returning to the on-call schedule. The letter did not describe these conditions but said they would reduce his workload, and limit sleep deprivation. The letter said these conditions were not medical restrictions, but would likely reduce the risk of relapse and benefit Dr. Costa’s mental health long term.
[30] On October 21, 2020, Dr. Moran emailed Dr. B to say he planned to put Dr. Costa back on the on-call schedule as of January 2021, without restrictions. The email said Dr. Moran had spoken to Dr. T that day, and she said Dr. Costa was medically fit to return to his on-call responsibilities subject to certain conditions, which she apparently did not specify. Dr. Moran’s email to Dr. B said Division members were unlikely to accept any conditions, as “our goodwill has expired regarding us covering his call and it is time for him to be doing his share of the work.”
[31] In a letter dated October 20, 2020, Dr. Costa’s psychiatrist said he had been diagnosed with major depressive disorder, and his condition could be worsened by sleep deprivation associated with on-call work. It went on to say, “returning to the same on-call situation as before would likely precipitate a relapse of depression… Both practice changes to his on-call demands and absence of undue pressure regarding these changes by his colleagues would be requisite for Dr. Costa to recover from depression and avoid future relapse.”
[32] In October 2020, Dr. Costa, the Division, and NHA agreed to appoint a mediator to address Dr. Costa’s return to the on-call schedule and related issues, including allocation of OR time. The parties participated in mediation, and on January 18, 2021, the mediator issued a report. The mediator’s report found that trust and communication between Dr. Costa and other Division members had broken down, and some members doubted he had a medical condition that warranted relief from his on-call obligations, especially since he continued to perform other duties like surgery and work on the SSC Project.
[33] The mediator’s report said members of the Division were not prepared to continue covering Dr. Costa’s on-call shifts indefinitely, and were frustrated with him. The mediator found that addressing Dr. Costa’s request for accommodation was not within Dr. Moran’s authority or expertise. She recommended that any decisions about how to proceed should be based on an independent medical examination [ IME ] of Dr. Costa, and he should be relieved from his on-call duties pending the IME. The parties later agreed that an IME would be appropriate, and NHA and Dr. Costa agreed on a physician to conduct the IME.
[34] Regarding OR time, the mediator’s report said NHA should ensure that the way it offers OR time to the Division is fair and transparent.
[35] On January 15, 2021, shortly before the date of the mediator’s report, Dr. Moran emailed other members of the Division to say he had met with NHA administrators and “sorted out an approach” regarding Dr. Costa. The email said that after February 8, 2021, Dr. Costa’s OR time would be reallocated to other members of the Division.
[36] In February 2021, NHA reallocated Dr. Costa’s OR time to other Division members, pending the result of the IME. NHA provided evidence that it did this for two reasons: 1) out of fairness to other members who covered Dr. Costa’s on-call shifts, and 2) because NHA was uncertain whether he was able to perform surgery safely, since his treating physicians found he could not perform on-call duties. NHA informed Dr. Costa’s patients who had surgery scheduled in the following months that their surgeries were canceled because Dr. Costa was unavailable.
[37] NHA says Dr. Costa was entitled to appeal the decision to reallocate his OR time, to NHA’s board or to the Hospital Appeal Board [ HAB ], but he did not do so.
[38] The SSC Project was terminated in March 2021. The project had been suspended since October 2020, apparently due to interpersonal problems in the Division. Dr. Costa says the project was ultimately terminated because Division members could not agree on how to proceed.
[39] On March 3, 2021, members of the Division voted to remove Dr. Costa as a member of the Division. Dr. Costa provided an audio recording of a Division meeting, which appears to show that Division members discussed his disability before voting to remove him. The respondents did not address the recording, in their submissions.
[40] NHA says the Division did not have authority to remove Division members, and NHA did not support the Division’s attempt to remove Dr. Costa. NHA says the Division’s vote had no effect on Dr. Costa’s membership in NHA’s medical staff, or in the Division. NHA’s Medical Director at the time, Dr. F, later sent an email to Dr. Costa, confirming that the Division did not have authority to remove him.
[41] The IME took place on April 6, 2021. The physician who performed the IME issued a report on April 18, 2021. Among other things, the report said:
a. Dr. Costa developed an adjustment disorder in 2020 due to work-related issues. He did not have major depressive disorder.
b. Dr. Costa was fit to practice, with no restrictions on his duties, including on-call duties.
c. The most effective treatment would be to resolve his work issues by further mediation, or change his employment.
[42] Despite the IME report, Dr. Costa did not return to the Division’s normal on-call schedule. After receiving the report, NHA says it continued to try to find a workable solution for Dr. Costa. It says it engaged in discussions with him about returning to practice and on-call duties during the following months.
[43] On June 10, 2021, members of the Division met with NHA administrators to discuss Dr. Costa’s return to practice. Division members suggested that Dr. Costa should return to normal on-call duties, in the Division’s rotation system. They suggested that if he had specific scheduling needs, he should be responsible for finding a Division member to swap shifts with him on an ad hoc basis, and if he was on-call and there was no other coverage in the North East and North West regions, he should be responsible for arranging for a secondary on-call surgeon to take calls from those regions. Division members said OR time should be allocated to Dr. Costa on a basis commensurate with his commitment to the on-call schedule.
[44] On July 8, 2021, NHA wrote a letter to members of the Division. The letter said NHA would work with the Division to develop a plan to return Dr. Costa to “adjusted” on-call duties. It said that effective immediately, Dr. Costa would be allocated 0.5 days per month of OR time, which the letter described as “a minimal amount” of OR time. The letter said this allocation could be revisited if Dr. Costa did not return to on-call duties, as adjusted, within three months, and if he did return to adjusted call duties within three months, his OR time could be increased. There is no evidence before me about how much OR time was actually allocated to him, after August 2021.
[45] Dr. Costa proposed to return to the on-call rotation on a schedule that would have ensured he was never on call for more than 24 hours at a time, and never on a shift adjacent to one of Dr. Mackey’s on-call shifts. NHA proposed on-call schedules for the Division that accommodated these conditions, but members of the Division would not agree to NHA’s proposals. Dr. Moran says they rejected one proposal because it would have required some members to be on call two or three out of every seven weekends, and they rejected another proposal because it would have required some members to be on call for three consecutive weekdays. Dr. Moran says Division members were not willing to make these changes.
[46] NHA says it could not compel Division members to change the on-call schedule, so it committed to assisting Dr. Costa to secure locum physicians to cover on-call shifts, where needed, to accommodate his requested schedule. Dr. Costa disputes this. His complaint says the Division objected to NHA’s plan to hire locum physicians to accommodate his schedule, and the plan did not proceed.
[47] Dr. Costa returned to on-call duties in August 2021. NHA says it successfully negotiated a plan that was acceptable to Dr. Costa and the Division. NHA says Dr. Costa never had to be on call on consecutive days after August 2021. Dr. Costa disputes this. It appears that NHA initially accommodated his request not to be on call for more than 24 hours at a time, but the amendment to his complaint says that in November 2021, NHA imposed an on-call schedule that required him to be on call for 48 hours at a time in January 2022.
[48] Dr. Costa resigned from NHA in December 2021. He says he resigned because of the respondents’ failure to accommodate his disability, and NHA’s failure to provide a discrimination-free workplace.
III DECISION
A. Application to file a further submission
[49] After the respondents filed their replies to Dr. Costa’s response to the applications to dismiss, Dr. Costa applied to file a further submission. His further submission responds to both NHA’s reply and Dr. Moran’s. The Tribunal did not invite the respondents to respond to the application to file a further submission, and the respondents did not do so.
[50] Generally speaking, the Tribunal’s application process involves three submissions: the application, the response, and the reply: Tribunal Rules of Practice and Procedure , Rule 28(2). The Tribunal may accept further submissions where fairness requires that a party be given an opportunity to respond to new issues raised in reply: Rule 28(5); Kruger v. Xerox Canada Ltd . (No. 2), 2005 BCHRT 24 at para. 17. The overriding consideration is whether fairness requires an opportunity for further submissions: Gichuru v. The Law Society of British Columbia (No. 2) , 2006 BCHRT 201, para. 21.
[51] For the following reasons, I find that fairness requires me to consider Dr. Costa’s further submission in response to NHA’s reply submission, but not his further submission in response to Dr. Moran’s reply.
a. Dr. Costa’s response to NHA’s reply
[52] NHA’s reply submission includes, among other records, an email from Dr. Costa to the Head of the Hospital’s Department of Surgery, dated July 30, 2019, while Dr. Costa was on leave from work. The email says Dr. Costa would be returning to work soon, and would be “looking for ways to cause trouble”. The email goes on to discuss some of Dr. Costa’s ideas for changes to the Division’s intake and referral practices, and refers to software that could streamline referrals and track wait times.
[53] NHA says the email supports its argument, under s. 27(1)(e) of the Code , that Dr. Costa filed the complaint for an improper purpose. The email was not included in NHA’s original application to dismiss, and NHA does not explain why not. I find that fairness requires that Dr. Costa be provided an opportunity to respond to this new evidence in NHA’s reply. Dr. Costa’s application to file a further submission includes contextual information about the July 30, 2019 email, including additional emails in the same thread, which were not included in NHA’s reply submission. I have considered this information in my decision.
[54] Dr. Costa’s further submission objects to the final two paragraphs of NHA’s reply submission. He says they contain improper reply because they expand on points already made in NHA’s application to dismiss, thereby splitting NHA’s case for dismissal and creating unfairness for Dr. Costa. Some of the information cited in these paragraphs is from medical records that were attached to NHA’s application to dismiss, but not referred to in NHA’s original submissions in support of the application. I accept that this could create unfairness to Dr. Costa. To cure that unfairness, I find it is fair and appropriate to consider his arguments in response to NHA’s reply, and I have considered them.
b. Dr. Costa’s response to Dr. Moran’s reply
[55] Dr. Costa also objects to the final two paragraphs of Dr. Moran’s reply submission. Regarding the penultimate paragraph, which says it would be unjust if Dr. Moran was held to be in an employer-like relationship with Dr. Costa just because he communicated the Division’s views, Dr. Costa says this does not reply to anything new raised in Dr. Costa’s response to the application to dismiss. Dr. Costa says I should either disregard this paragraph, or consider his own submission in response, which is that the alleged injustice to Dr. Moran is not relevant to the legal question of whether Dr. Moran may be liable for a breach of s. 13 of the Code .
[56] Dr. Costa says the final paragraph in Dr. Moran’s reply, which summarises uncontroversial legal principles in applications under s. 27(1)(c) and states that the complaint against Dr. Moran should be dismissed, simply repeats arguments made in the application to dismiss. Dr. Costa says I should disregard this paragraph.
[57] In my view the two paragraphs in question can be characterised as a final summing-up of Dr. Moran’s submissions under s. 27(1)(c). They do not add anything of substance to Dr. Moran’s argument. For this reason, I find that fairness does not require me to consider Dr. Costa’s further submission in response to these paragraphs.
B. Section 27(1)(c) – No reasonable prospect of success
[58] The respondents apply to dismiss Dr. Costa’s complaint under s. 27(1)(c) of the Code , on the basis that it has no reasonable prospect of success. 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. The onus is on the respondents to establish the basis for dismissal.
[59] 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. 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.
[60] 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 .
[61] 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.
[62] To prove his complaint at a hearing, Dr. Costa will have to prove he has a characteristic protected by the Code , he was adversely impacted in employment as a result of the respondents’ conduct, and his protected characteristic was a factor in the adverse impact: Moore v. British Columbia (Education) , 2012 SCC 61 at para. 33. If he did that, the burden would shift to the respondents to justify the impact as a bona fide occupational requirement.
[63] Before turning to the Respondents’ arguments, it is helpful to understand what Dr. Costa’s complaint alleges. He summarizes this at the beginning of his response to the applications to dismiss. In short, he alleges that the respondents discriminated against him regarding employment, on the basis of his mental disability, by:
a. Failing to accommodate his medical needs for modification of the on-call schedule;
b. Reallocating his OR time partly due to his mental disability, and failing to return his OR time after the IME report; and
c. Ejecting him from the Division.
[64] As I understand the respondents’ argument, they say Dr. Costa has no reasonable prospect of proving he had an employment relationship with either respondent, for the purposes of s. 13 of the Code . In the alternative, they say he has no reasonable prospect of proving a connection between his disability and any adverse impact he experienced. In the further alternative, they say they are reasonably certain to prove their conduct was justified because they accommodated him to the point of undue hardship.
[65] For the following reasons I am not persuaded that I should use my discretion under s. 27(1)(c) to dismiss the complaint. I will first address the issues related to whether Dr. Costa had an employment relationship with the respondents, for the purposes of the Code . Then I will address whether he has no reasonable prospect of proving a connection between his disability and any adverse impact he experienced, and whether the respondents are reasonably certain to prove their conduct was justified. Finally, I will address the allegations about his removal from the Division and the termination of the SSC project.
a. Employment under the Code
[66] The respondents say Dr. Costa has no reasonable prospect of proving he was an employee, for the purposes of the Code , during the events described in his complaint.
[67] In McCormick v. Fasken Martineau DuMoulin LLP , 2014 SCC 39, the Supreme Court of Canada held that determining whether a complainant is an employee, for the purposes of the Code , depends on the degree of control over the complainant’s working conditions and financial benefits exercised by the alleged employer, and the corresponding dependency on the complainant’s part.
[68] In McCormick the Court referred to factors set out in Crane v. British Columbia (Ministry of Health Services) (No. 1) , 2005 BCHRT 361, which may be helpful in assessing the extent of control and dependency in the relationship between parties. These factors include whether the alleged employer gained some benefit from the complainant, whether they exercised control over the complainant’s wages, conditions of employment, or the nature of the work performed, whether they were responsible for remunerating the complainant, and whether they have the ability to remedy any discrimination. The Court emphasised that the main issue is whether the alleged employer controls working conditions and remuneration, resulting in dependency on the part of the complainant: McCormick at para. 24.
[69] In British Columbia Human Rights Tribunal v. Schrenk , 2017 SCC 62 [ Schrenk ], the Supreme Court of Canada held that the Code prohibits discrimination against employees whenever that discrimination has a sufficient connection with the employment context, even if the respondent is not the complainant’s employer. In assessing whether the connection is sufficient, the Tribunal conducts a contextual analysis that considers all relevant circumstances, which may include whether the respondent was integral to the complainant’s workplace, whether the alleged discrimination occurred in the workplace, and whether the complainant’s work performance or environment was negatively affected: Schrenk at para. 67.
[70] For the following reasons, I am not satisfied that Dr. Costa has no reasonable prospect of proving he was an employee of NHA, for the purposes of the Code . I am also not satisfied that he has no reasonable prospect of proving Dr. Moran’s conduct had a sufficient connection with the employment context to establish discrimination under the Code .
i. Was Dr. Costa an “employee” of NHA?
[71] To prove his complaint, Dr. Costa must establish that he was an employee of NHA, to engage the protection of s. 13 of the Code. To succeed in their applications to dismiss on this basis, the respondents must persuade me that he has no reasonable prospect of doing so. As set out above, I am not so persuaded.
[72] There is no dispute that Dr. Costa maintained a private office practice, outside of the Hospital. However, as an orthopedic surgeon, it appears that much of his private practice depended on access to OR time at the Hospital. It does not appear that he had access to an OR anywhere other than the Hospital, during the events described in his complaint.
[73] Dr. Moran says all physicians who worked at the Hospital were independent contractors of NHA, not employees. He says all Division members have contracts with NHA which refer to them as independent contractors. This may be a relevant factor, but it is not determinative: McCormick at para. 22.
[74] There is evidence that NHA exercised a degree of control over the work conditions of physicians who provide medical services to patients at the Hospital. Medical staff at NHA are subject to bylaws and rules created by NHA, which set out the conditions under which physicians on NHA’s medical staff provide services to patients and to NHA, and there is no dispute that Dr. Costa was required to abide by these bylaws and rules. As Dr. Costa points out, the bylaws and rules provide that NHA may evaluate the performance of medical staff, review concerns about the professional conduct of medical staff, and discipline medical staff in some circumstances. This suggests NHA had some control over the working conditions of medical staff, including Dr. Costa.
[75] There is evidence that NHA controlled Dr. Costa’s OR time. NHA says OR time does not belong to a particular surgeon or division, but to the patients for whom surgery is scheduled. But NHA does not appear to dispute that it had the ability to reallocate OR time that had been allocated to Dr. Costa’s patients, as it did in February 2021, and that this prevented him from performing surgery. This evidence suggests that NHA had control over the facilities Dr. Costa needed in order to perform surgery, and it exercised that control when it restricted his access to those facilities.
[76] There is no dispute that, as a member of the Division, Dr. Costa shared responsibility with other members for fulfilling the Division’s service obligations to NHA. The parties agree that NHA paid him for on-call availability, under MOCAP, and paid him a premium for practicing in a rural area. NHA says these payments were made using funds provided by the Ministry of Health, and NHA itself had no control over the conditions of payment. NHA describes itself as a “flowthrough entity” that merely administered funds received from the Ministry. But NHA does not deny that it benefited from Dr. Costa’s on-call availability (when he was able to perform on-call duties) and from the fact that he practiced in a rural area.
[77] The respondents say the Supreme Court of Canada has suggested, in obiter , that where a relationship between a physician and a hospital consists solely of admitting privileges, that is not sufficient to establish an employment relationship for the purpose of human rights laws: Stoffman v. Vancouver General Hospital , [1990] 3 SCR 483. NHA cites an Alberta case which similarly found that a physician with admitting privileges at a hospital is not an employee of the hospital, for the purpose of human rights laws: Bugis v. University Hospitals , 1989 CanLII 3139 (AB KB).
[78] Dr. Costa argues that Stoffman and Bugis are outdated and irrelevant. He says his relationship with the Hospital did not consist solely of admitting privileges, but also included other duties, which I understand to be a reference to his on-call duties. While the extent to which he was able to perform on-call duties is at issue in this complaint, there is no dispute that he was expected to do them, as a normal part of his work in the Division. This suggests that his relationship with the Hospital consisted of more than just admitting privileges and access to OR time.
[79] Considering that Stoffman and Bugis were decided before McCormick , and that the relevant comments in Stoffman were in obiter , and considering the apparent factual differences between Dr. Costa’s situation and that of the physicians in Bugis and Stoffman , I am not persuaded that these cases mean there is no reasonable prospect that Dr. Costa could be found to be an employee of NHA, under the Code .
[80] Dr. Moran relies on Peterson v. The Mutual Fire Insurance Company of BC , 2017 BCHRT 21, where the Tribunal found it had no jurisdiction over a complaint because the complainant was not in an employment relationship under the Code . The complainant was one of eight elected directors on the respondent’s board. The Tribunal noted that the complainant’s submissions were sparse and did not expressly address whether he was in an employment relationship with the respondent. The Tribunal found his role as a director was similar to that of an equity partner in a law firm, as in McCormick , because he provided general direction to the respondent, and was not vulnerable to the respondent’s direction and control.
[81] There is evidence that Dr. Costa had some director-like responsibilities within the Division, since all Division members appear to have contributed to governance of the Division. But there is no evidence that he provided general direction to NHA. Unlike the complainants in McCormick and Peterson , it does not appear that he had any authority over the respondent to his complaint. As described above, there is evidence that he was vulnerable to NHA’s direction and control, at least in relation to his OR time.
[82] There is evidence that NHA provided some remuneration to Dr. Costa, that it gained some benefit from his work, especially when he performed on-call duties, and that it exercised control over some of his work, in its allocation of OR time. Considering these factors, and the low threshold that applies in an application under s. 27(1)(c), I am not satisfied that Dr. Costa has no reasonable prospect of proving he was an employee of NHA, for the purposes of the Code .
ii. Was Dr. Moran’s conduct sufficiently connected to Dr. Costa’s employment?
[83] Dr. Moran says Dr. Costa has no reasonable prospect of proving he was Dr. Costa’s employer. Dr. Moran says he had no control over Dr. Costa’s employment, and Dr. Costa was not dependent on him. He had no contractual arrangement with Dr. Costa, he was not responsible for hiring or evaluating Dr. Costa, and he had no authority over Dr. Costa’s pay, hours, or work conditions. Dr. Moran says all members of the Division were equals. He says he did not receive any compensation for acting as Division Head. Dr. Moran and NHA say he was not appointed as Division Head by NHA or the Hospital, but selected by members of the Division, and he had no authority to make decisions on behalf of other members, or on behalf of NHA.
[84] Dr. Moran provided sworn statements from five other members of the Division that corroborate his position. They say they did not view Dr. Moran as their employer or supervisor, while he was Division Head, and no member of the Division has authority over other members.
[85] I do not understand Dr. Costa’s argument to be that he was an employee of Dr. Moran, under the McCormick analysis. I understand the argument to be that he was an employee of NHA, and Dr. Moran’s conduct had an adverse impact on him that was sufficiently connected to his employment to establish discrimination under the Code . Dr. Costa says that as a fellow member of the Division, and particularly as the head of the Division, Dr. Moran was capable of discriminating against Dr. Costa regarding his employment.
[86] NHA’s rules appear to indicate that heads of divisions within the Hospital’s Department of Surgery are responsible for the operation of their divisions. Despite this, there is evidence before me that Dr. Moran’s role as Division Head did not give him any actual authority over Dr. Costa or other Division members. But there is also evidence suggesting Dr. Moran had some influence over NHA decisions about Dr. Costa: it appears that Dr. Moran told NHA, in 2020, that it was unfair that Dr. Costa continued to get OR time despite not performing on-call duties. When NHA reallocated Dr. Costa’s OR time, in 2021, it cited this unfairness as one of the reasons for the decision. I also consider the evidence that Dr. Moran told NHA that his “goodwill” regarding accommodating Dr. Costa had expired, and that he told Dr. Costa he should just quit, in September 2020. And I consider the audio recording of the March 3, 2021 Division meeting, which appears to show that Dr. Moran played an active role in the Division’s attempt to remove Dr. Costa.
[87] In my view, a contextual analysis must consider the evidence that Dr. Moran’s role as head of the Division entailed some formal authority over the operations of the Division, under NHA’s rules, as well as the evidence that he did not have any actual authority over Division members. A contextual analysis must also consider that Dr. Costa’s allegations against Dr. Moran—including that Dr. Moran was responsible, in part, for failing to accommodate his needs in relation to the on-call schedule, for reallocating his OR time, and for removing him from the Division—occurred in Dr. Costa’s workplace, and negatively affected his ability to perform his duties. For these reasons, and once again considering the low threshold that applies under s. 27(1)(c), I am not satisfied that Dr. Costa has no reasonable prospect of proving that Dr. Moran’s alleged conduct had a sufficient connection to Dr. Costa’s employment, to establish discrimination under s. 13 of the Code .
b. Connection to disability and justification
[88] Next I turn to the respondents’ arguments that Dr. Costa has no reasonable prospect of proving a connection between his disability and the adverse impact he experienced, and that the respondents are reasonably certain to prove they reasonably accommodated him.
i. Was there a connection between Dr. Costa’s disability and an adverse impact on his employment?
[89] As I understand the respondents’ argument, they do not deny Dr. Costa had a disability, but they say he did not face disability-related barriers to participating in the on-call schedule, so his disability was not a factor in any adverse impact he experienced as a result of not doing on-call duties.
[90] For the following reasons I am not satisfied that Dr. Costa has no reasonable prospect of proving he experienced an adverse impact on his employment, which was connected to his disability.
[91] The evidence before me shows that NHA’s decision to reallocate Dr. Costa’s OR time was based, in part, on NHA’s concern that he may have been unable to safely perform surgery, due to the medical issues that he said prevented him from participating in the on-call schedule. In other words, there is evidence suggesting that NHA’s perception of Dr. Costa’s disability was a factor in the reallocation of his OR time. In my view, this is sufficient to take the connection between his disability and the adverse impact arising from the reallocation of his OR time, out of the realm of conjecture.
[92] In addition to the reallocation of his OR time, Dr. Costa says the discrimination against him included the respondents’ refusal to modify his on-call schedule, based on his medical needs. The evidence shows that, in 2021, Dr. Costa sought adjustments to his schedule so that he was never on call for more than 24 hours at a time, and never on a shift adjacent to one of Dr. Mackey’s shifts. He also sought accommodation so that he did not have to take calls from NHA’s North East or North West regions. The medical evidence that Dr. Costa relies on does not specifically say he could not be on call for more than 24 hours at a time, or that he could not take calls from other regions, but it does suggest that a return to the Division’s normal on-call schedule could aggravate his symptoms and cause a relapse of depression.
[93] The respondents say Dr. Costa’s requests to modify his on-call schedule were based on his own preferences or principles, not reasons related to his disability. They say the medical evidence shows he was able to perform on-call duties, without restrictions, at all material times. They point to the following evidence:
a. Dr. Costa’s family doctor, Dr. T, said the accommodations sought by Dr. Costa were not medically necessary but were changes he wanted as a matter of principle.
b. The IME report said he was able to perform his on-call duties with no restrictions and no accommodations.
[94] There is some dispute in the medical evidence about whether Dr. Costa experienced disability-related barriers to full participation in the on-call schedule. The IME report said he could return to the on-call schedule without restrictions whereas Dr. Costa’s psychiatrist’s letter said doing so could aggravate his condition. Specifically, the psychiatrist’s letter said the sleep deprivation associated with being on-call worsened Dr. Costa’s depression, and that “returning to the same on-call situation as before would likely precipitate a relapse of depression.”
[95] As Dr. Moran notes, the psychiatrist’s letter indicates that Dr. Costa’s on-call shifts could last up to 72 hours. Dr. Moran says that was not correct because Dr. Costa was able to split these shifts with Dr. Mackey. On the evidence before me, it is not clear that Dr. Mackey was always available to split shifts with Dr. Costa. Even if she was, the psychiatrist referred to the duration of on-call shifts as one of several factors that made on-call work overwhelming for Dr. Costa, including the volume of referrals, the competing demands between different services he was covering, and the unpredictable nature of on-call work. For these reasons I do not accept that the psychiatrist’s reference to 72-hour shifts supports a finding that Dr. Costa has no reasonable prospect of proving he faced disability-related barriers to being on call.
[96] Dr. T’s opinion is more ambiguous than the psychiatrist’s. Dr. Moran argues that Dr. Costa agreed with Dr. T that the accommodations he wanted were not for medical conditions. This argument appears to be based on a note written by Dr. T, dated September 24, 2020, which said, “Joe and I have discussed that these conditions are not medical conditions but are personal issues that he feels he must stand up for.” I do not accept that this necessarily means Dr. Costa agreed with Dr. T—discussing an issue is not the same as agreeing about it. But the note does suggest that the barriers to Dr. Costa returning to on-call duties were based on his principles, rather than his disability.
[97] Dr. T’s letter dated October 8, 2020, says the unpredictable nature of on-call work, and the sleep deprivation that is often associated with being on call, aggravated the symptoms of Dr. Costa’s depression. The letter goes on to say the accommodations sought by Dr. Costa “are not medical restrictions,” but would reduce the risk of relapse and benefit his mental health long term. However, in a letter dated October 28, 2020, Dr. T says she agrees with the psychiatrist’s opinion that minimising sleep deprivation would be important to Dr. Costa’s mental wellness. Despite her statement that the accommodations sought by Dr. Costa were not medical restrictions, Dr. T’s letters appear to corroborate the psychiatrist’s opinion that returning to the normal on-call schedule could cause sleep deprivation, which could aggravate Dr. Costa’s condition.
[98] Considering all the medical evidence, I am not satisfied that Dr. Costa has no reasonable prospect of proving the adjustments he sought to his on-call duties—so that he was never on call for more than 24 hours at a time, and he did not have to take calls from the North East or North West—were based solely on his preferences or principles. There is medical evidence that returning to the normal on-call schedule could have caused a relapse of his depression, and that the sleep deprivation associated with being on-call aggravated his symptoms. It stands to reason that a shorter period on call, and a smaller geographic catchment area, would reduce the number of calls received and the risk of sleep deprivation.
[99] In my view, the letters from Dr. T and from Dr. Costa’s psychiatrist support Dr. Costa’s allegation that he faced disability-related barriers to full participation in the on-call schedule. While the IME report appears to contradict this claim, and Dr. T’s note dated September 24, 2020, creates some ambiguity about her opinion, I cannot resolve this conflict in the medical evidence, in the context of an application to dismiss. While the IME report might ultimately be accepted by a Tribunal Member hearing the complaint, I am not persuaded that it is sufficient to conclude that Dr. Costa has no reasonable prospect of proving he faced disability-related barriers to full participation in the on-call schedule, in light of the other medical evidence.
[100] For these reasons, I am not satisfied that Dr. Costa has no reasonable prospect of proving he faced disability-related barriers to full participation in the on-call schedule, or that he has no reasonable prospect of establishing a connection between his disability and the adverse impact arising from the reallocation of his OR time.
ii. Did the respondents reasonably accommodate Dr. Costa?
[101] The next question is whether the respondents are reasonably certain to prove their conduct was justified. If the respondents show they are reasonably certain to prove a defence at the hearing, then the complaint has no reasonable prospect of success: Purdy v. Douglas College and others , 2016 BCHRT 117 at para. 50. To justify any adverse impacts that were connected to Dr. Costa’s disability, the respondents would have to prove their conduct was based on a standard they adopted in good faith, for a purpose rationally connected to Dr. Costa’s performance of his job, and the standard is reasonably necessary to the accomplishment of that legitimate purpose. This last element encompasses an employer’s duty to accommodate employees 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 [ Meiorin ].
[102] The respondents’ submissions do not address the first two steps of the Meiorin analysis, and they do not identify the standard upon which their conduct was based, for the purpose of that analysis. Dr. Costa says he does not concede that the respondents will establish the first two steps of the Meiorin analysis, but his submissions focus on the third step of the analysis, and the issue of whether he was reasonably accommodated.
[103] NHA says the decision to reallocate Dr. Costa’s OR time was justified because there was medical evidence that he was unable to perform all his on-call duties, and NHA needed to be satisfied that he could safely perform other aspects of his role as an orthopedic surgeon, without restriction. Based on NHA’s argument, I understand NHA applied a standard requiring Dr. Costa to provide independent medical evidence of his fitness to perform surgery, in light of the evidence from his treating doctors that he was unable to perform on-call duties. For the purpose of this decision, and without any argument to the contrary, I will accept that NHA is reasonably certain to prove this standard was adopted in good faith, for a purpose related to patient safety. But on the evidence before me, I am not persuaded that NHA is reasonably certain to prove the requirement for independent evidence of Dr. Costa’s fitness to perform surgery was reasonably necessary for the accomplishment of that purpose.
[104] Dr. Costa says there was never any evidence that he was unfit to perform surgery. The medical evidence before me addresses the connection between his disability and the barriers to being on call, but does not suggest any connection between his mental disability and his ability to perform surgery. Dr. T’s letter dated October 8, 2020, said she had no reason to doubt he could continue performing scheduled surgeries, and a letter from Dr. Costa’s psychiatrist, dated December 23, 2020, said she never had any concerns about his fitness to practice medicine.
[105] NHA has not explained how Dr. Costa’s ability to perform on-call duties was connected to his ability to perform surgery. Without more information about this connection, and considering the medical evidence of his fitness to perform surgery that was provided to NHA before January 2021, I am not satisfied that NHA is reasonably certain to prove the requirement for independent evidence of his fitness to perform surgery was reasonably necessary to ensure patient safety.
[106] I also note that NHA originally told the Division the reallocation decision was temporary, pending the IME report. In April 2020, NHA received the IME report, confirming Dr. Costa could return to work without restrictions, yet NHA did not return his OR time until August 2020, and even then, it only allocated him “a minimal amount” of OR time. This suggests that NHA’s concerns about his fitness to perform surgery were less important, in the decision to reallocate his OR time, than concerns about the unfairness of Dr. Costa getting OR time without doing on-call duties.
[107] For these reasons, I am not satisfied that NHA is reasonably certain to prove the reallocation of Dr. Costa’s OR time was justified.
[108] Next I turn to whether the respondents are reasonably certain to prove they reasonably accommodated Dr. Costa’s medical needs in relation to the on-call schedule. At this stage I assume that Dr. Costa will prove he faced disability-related barriers to participation in the normal on-call schedule.
[109] NHA says it accommodated Dr. Costa by allowing him to stop doing on-call work in 2020, without taking away his OR time, by funding and participating in the mediation, and by obtaining the IME report. Dr. Moran says Division members accommodated Dr. Costa by engaging in mediation, and covering his on-call shifts when he was relieved from on-call duties in 2020. But the respondents do not explain how these steps addressed Dr. Costa’s request for modifications to the on-call schedule in 2021.
[110] NHA says it made all reasonable efforts to craft an on-call schedule which accommodated Dr. Costa’s requested adjustments, even though the IME report said no accommodations were necessary. NHA says it ultimately negotiated an on-call schedule that Dr. Costa and the Division could accept, and it was in the process of implementing that schedule when Dr. Costa resigned. But Dr. Costa denies that NHA negotiated a schedule that accommodated his needs. He says NHA imposed a schedule that required him to be on call for 48 hours at a time starting in January 2022, contrary to his requested adjustments to the schedule. NHA does not appear to deny this.
[111] Dr. Moran says he and other Division members attempted to accommodate Dr. Costa’s requested modifications to the schedule by offering to trade on-call days with him on an ad hoc basis, and allowing him and Dr. Mackey to decide how to divide their on-call time at their own discretion. But it appears this would have amounted to returning Dr. Costa to the same on-call situation that existed before he was relieved from on-call duties in 2020. Dr. Costa’s psychiatrist said that returning to the same on-call situation as before would likely precipitate a relapse of his depression. The IME report suggested otherwise but, as I already noted, I cannot resolve this conflict in the medical evidence, in an application to dismiss. In light of the psychiatrist’s opinion, I am not persuaded that the respondents are reasonably certain to prove the Division’s proposal would have been a reasonable accommodation.
[112] Dr. Moran says Division members would have experienced undue hardship if the on-call schedule was modified as Dr. Costa requested, because this would have created scheduling conflicts, and it would have required Division members to be on call more often than they could tolerate. Dr. Costa suggests NHA could have brought in locum physicians to support his participation in the on-call schedule, without requiring other Division members to spend more time on call.
[113] In its reply submission, NHA said it committed to assisting Dr. Costa to secure locums to cover some of his shifts, so as to accommodate his requested adjustments to the schedule. But Dr. Costa says NHA never brought in a locum to assist with accommodating his disability. The evidence before me includes an email from NHA’s Medical Director to Dr. Costa, dated August 18, 2021, showing that NHA found another physician to support Dr. Costa with calls from the North East on at least one occasion, on or about August 19, 2021. But it is not clear whether this support was available on other days when Dr. Costa was on call. An email from the Medical Director to the Division, dated August 15, 2021, shows that NHA expressed an intention to arrange locum coverage to support Dr. Costa’s amended call schedule, but there is no other evidence before me that substantiates NHA’s claim that it hired locums for this purpose, or assisted Dr. Costa to do so.
[114] If NHA hired locum physicians so that Dr. Costa could remain on the on-call schedule—and continue to have more than “minimal” OR time—while accommodating at least some of his requested modifications to the schedule, that could support a finding that he was reasonably accommodated. But the evidence before me suggests that NHA provided locum coverage on only one occasion, in August 2021, and only to cover calls from the North East. In light of the conflicting evidence about whether NHA provided assistance securing locum coverage, beyond this one occasion, I am unable to find that NHA is reasonably certain to prove it did this.
[115] While there is evidence that the respondents took some steps to accommodate Dr. Costa, I am not satisfied they are reasonably certain to prove they reasonably accommodated him.
c. Removal from the Division and termination of SSC project
[116] For the following reasons, I find it is not necessary for me to decide whether Dr. Costa’s allegation about his removal from the Division, or his allegation about the termination of the SSC project, have no reasonable prospect of success. Since I have decided that the complaint will proceed to a hearing, based on Dr. Costa’s allegations about the on-call schedule and the reallocation of his OR time, I do not see how any efficiency could be gained by parsing out and dismissing these specific allegations, and I find there is a risk that doing so could foreclose otherwise appropriate findings at a hearing: Byelkova v Fraser Health Authority , 2021 BCSC 1312 at para. 115.
[117] I note that on the material before me, it is not clear that either of these allegations could establish discrimination. Dr. Costa’s response to the application to dismiss says the Division’s decision to remove him from the Division was discriminatory, but he does not explain how this decision affected him. NHA had already reallocated his OR time before the purported removal. NHA says the Division had no authority to remove him, and the attempt to do so did not have any effect on him. NHA provided evidence that its Medical Director confirmed this to Dr. Costa in an email dated September 2, 2021.
[118] As for the SSC project, it is not clear to me whether Dr. Costa is alleging the respondents’ actions in relation to the project were discriminatory. He refers to the termination of the SSC project in his complaint, and in his response to the application to dismiss. But the response begins with a statement of how the respondents discriminated against him, which does not refer to the SSC project.
[119] Both the SSC project and the removal from the Division are parts of the factual matrix of the complaint. They could be relevant to how Division members, including Dr. Moran, responded to Dr. Costa’s accommodation requests. It may be possible for Dr. Costa to prove discrimination based, in part, on his allegations about the SSC project and his removal from the Division. But I do not find it necessary to decide whether the parts of the complaint about these allegations have a reasonable prospect of success. I decline to dismiss these parts of the complaint.
[120] I dismiss the applications under s. 27(1)(c).
C. Section 27(1)(d)(ii) – Proceeding would not further the purposes of the Code
[121] Section 27(1)(d)(ii) allows the Tribunal to dismiss a complaint where proceeding would not further the purposes of the Code . Deciding whether a complaint furthers those purposes is not only about the interests in the individual complaint. It may also be about broad public policy issues, like the efficiency and responsiveness of the human rights system, and the expense and time involved in a hearing: Dar Santos v. UBC , 2003 BCHRT 73 , at para. 59 , Tillis v. Pacific Western Brewing and Komatsu , 2005 BCHRT 433 at para. 15, Gichuru v. Pallai (No. 2) , 2010 BCHRT 125, at paras. 113-118.
[122] The respondents each apply to dismiss the complaint under s. 27(1)(d)(ii) of the Code , for different reasons. NHA says it would not further the purposes of the Code to proceed because the evidence shows Dr. Costa did not have a disability requiring accommodation, and in any event his on-call schedule was modified as he requested, in 2021, even though there was no medical basis for doing so.
[123] The Tribunal may dismiss a complaint under s. 27(1)(d)(ii) where the alleged discrimination has already been remedied: Williamson v. Mount Seymour Park Housing Co-operative and others , 2005 BCHRT 334. However, for essentially the same reasons set out in my decision under s. 27(1)(c), I am not persuaded that this is such a case. The evidence before me does not establish that NHA modified the on-call schedule in a way that allowed Dr. Costa to return to full participation, such that he could regain his pre-2021 allocation of OR time. As described above, Dr. Costa denies NHA’s claim that it hired locums to support his requested adjustments to the on-call schedule, and I am not persuaded by NHA’s evidence on this issue.
[124] Dr. Moran argues that it would not further the Code’s purposes to proceed against him because he is an individual respondent who was acting in the course of his employment: Daley v. BC (Ministry of Health) , 2006 BCHRT 341 .
[125] There are strong policy reasons that favour complaints against individual respondents. As the Supreme Court of Canada has acknowledged, “the aspirational purposes of the Code require that individual perpetrators of discrimination be held accountable for their actions”: Schrenk at para. 56 .
[126] On the other hand, naming individual respondents can complicate and delay the resolution of complaints, exacerbate feelings of personal animosity, and cause needless personal distress to individuals who are accused of discrimination: Daley at para. 54 . Because employers and institutional respondents may be liable for the acts of their agents, they are generally responsible for any remedy ordered by the Tribunal: Code , s. 44(2); Robichaud v. Canada , [1987] 2 SCR 84. In some situations, the remedial aims of the Code may be most fairly and efficiently fulfilled without holding individuals liable.
[127] The Tribunal balances all these considerations to decide whether the purposes of the Code are best served by having a complaint proceed against individuals as well as an institutional respondent, or against the institutional respondent only. The Tribunal’s case law has identified the following factors as relevant:
a. whether the complaint names an institutional employer as a respondent and that respondent has the capacity to fulfill any remedies that the Tribunal might order;
b. whether the institutional respondent has acknowledged the acts and omissions of the individual as its own and has irrevocably acknowledged its responsibility to satisfy any remedial orders which the Tribunal might make in respect of that individual’s conduct; and
c. the nature of the conduct alleged against the individual, including whether it took place within the regular course of their duties, whether they are alleged to have been the directing mind behind the discrimination, and whether the individual’s alleged conduct has a measure of individual culpability:
Daley at paras. 60-62 .
[128] The first factor appears to be satisfied; the parties do not dispute that NHA has the capacity to fulfil any remedies the Tribunal may order. The second factor is more complicated. NHA has not acknowledged Dr. Moran’s acts as its own and has not undertaken to satisfy any orders the Tribunal may make in respect of his conduct.
[129] Dr. Moran says NHA has effectively accepted responsibility for his and the Division’s actions. He says NHA informed the Division, in a letter dated July 8, 2021, that the Division was not required to accommodate Dr. Costa, and that changes to the on-call schedule were a matter of goodwill. Dr. Moran says he should not be held responsible for following this direction from NHA. NHA did not make any submissions about this part of Dr. Moran’s argument.
[130] I do not accept that the July 8, 2021 letter from NHA was tantamount to an acknowledgement of responsibility for Dr. Moran’s actions in relation to Dr. Costa. The letter said NHA would not ask the Division to make “wholesale” changes to the on-call rotation, but it said NHA expected Division members to work with NHA staff to come up with a plan to return Dr. Costa to on-call duties. I do not read it as absolving Dr. Moran, or other Division members, of any obligation to accommodate Dr. Costa. Nor does the letter say anything about satisfying any remedial orders that the Tribunal might make in this complaint, which had not yet been filed. Dr. Moran did not cite any authority suggesting the Tribunal could find that an institutional respondent can make such an undertaking implicitly, by its conduct before a complaint is filed.
[131] Regarding the third Daley factor, Dr. Moran argues that he was not personally culpable for any failure to accommodate Dr. Costa and he was not a directing mind with the authority to unilaterally change the on-call schedule. He emphasises that he had no control over other members of the Division. He says that even if he had supported the accommodations sought by Dr. Costa, he still would have been outvoted by other members.
[132] The complaint alleges Dr. Moran was the directing mind behind much of the discrimination. Dr. Moran acknowledges this allegation, in his reply submission, but he says there is no evidence to support it. He says that despite his role as Division Head, he was merely as spokesperson for other Division members.
[133] I note that the third Daley factor focuses on the allegations in a complaint, rather than the evidence before the Tribunal. In any event, I do not agree that there is no evidence supporting a claim that Dr. Moran was a directing mind behind the alleged discrimination. As noted above, there is some evidence that Dr. Moran played a part in NHA’s decision to reallocate Dr. Costa’s OR time, for reasons of fairness to other Division members. I also note that in the evidence before me, Dr. Moran does not deny that in September 2020, in a discussion about getting Dr. Costa back on the on-call schedule, Dr. Moran said, “why don’t you just quit?” Nor does Dr. Moran deny Dr. Costa’s allegation, in his amendment to the complaint, that he encouraged other Division members to reject Dr. Costa’s requested accommodations, in July 2021.
[134] Taking all these factors into consideration, I am not satisfied that the Code ’s purposes are best served by dismissing the complaint against Dr. Moran.
[135] I dismiss the applications under s. 27(1)(d)(ii).
D. Section 27(1)(e) – Complaint made for improper purposes or in bad faith
[136] The respondents say that at all material times Dr. Moran knew the complaint had no merit, and he only filed it as a way to punish Dr. Moran and coerce NHA to change the Division’s on-call schedule.
[137] Under s. 27(1)(e), the Tribunal may dismiss a complaint that was filed for improper motives or in bad faith. Dismissal under this section requires a finding of wrongdoing: Mokhtari v. Hain-Celestial Canada and others , 2007 BCHRT 196 at para. 7. This is a difficult standard to meet on a preliminary application, where parties are not subject to cross-examination.
[138] To establish an improper motive or bad faith, a respondent must show the complainant did not have an honest belief that the Code was violated, or was motivated by some “ulterior, deceitful, vindictive, or improper” purpose that is inconsistent with the Code : Stopps v. Just Ladies Fitness (Metrotown) and D. (No. 2) , 2005 BCHRT 359 at para. 13. This issue is assessed objectively, because it is rarely possible to know the mind of the complainant: Johnson v. Cheng and another , 2012 BCHRT 408 at para. 57.
[139] The respondents say the Tribunal may dismiss a complaint, even if a complainant honestly believes they have been discriminated against, if the complainant’s overriding purpose is to punish another party: Lungu v. B.C. (Min. of Children and Family Development) (No. 2) , 2011 BCHRT 341 at paras. 19-21; Yaniv v. Various Waxing Salons (No. 2) , 2019 BCHRT 222 at paras. 105-107.
[140] Dr. Moran says Dr. Costa must have known, at all material times, that he was not an employee under the Code , and he must have known, at least since the IME report, that he did not have a disability requiring accommodation. Dr. Moran argues that this means the complaint must have been filed in bad faith. Similarly, NHA says Dr. Costa has known since September 2020 that the accommodations he requested were not medically required, and that NHA’s treatment of him was not discriminatory. NHA says he filed the complaint as a way to pressure NHA and his colleagues to change the way orthopedic surgery services were provided, and to punish NHA for not addressing his concerns about this.
[141] In Dr. Costa’s sworn statement in response to the application to dismiss, he denies filing the complaint to punish NHA. He says he believes he was entitled to the accommodations he sought, and he believes the respondents discriminated against him.
[142] I do not accept that Dr. Costa must have known his complaint had no merit. The question of whether he was an employee under the Code is a legal one. No one suggests he had legal training, and there is no evidence before me about the legal advice he received. I have rejected, on the evidence before me, the argument that Dr. Costa has no reasonable prospect of proving his relationship with NHA satisfies the legal test for employment. In these circumstances I cannot find he must have known he was not an employee under the Code .
[143] Turning to the question of whether he knew he did not have a disability requiring accommodation, I consider, once again, that there is conflicting evidence before me on this point. The IME says he faced no medical restrictions to returning to full participation in the on-call schedule, while the letters from Dr. T and his psychiatrist suggest that doing so could aggravate his depression. In light of this dispute in the medical evidence about whether he faced disability-related barriers to full participation in the on-call schedule, I cannot find that he must have known he did not. Although he is a medical doctor, there is no evidence that he has expertise on mental health, or the ability to accurately diagnose his own mental disability.
[144] Dr. Moran says the evidence shows Dr. Costa had a strong personal animus towards the Division and Dr. Moran in particular. Dr. Moran says this is supported by Dr. T’s notes showing that Dr. Costa’s negative interactions with the Division caused serious mental health issues, and that on one occasion in August 2020, Dr. Costa’s motivations were “vindictive”. NHA’s reply submission cites additional evidence from Dr. T’s notes, which show that Dr. Costa said the Division rebuffed his efforts to improve its organisation, and that he became preoccupied with work issues, and unable to compromise or let things go. NHA also cites Dr. Costa’s email to the Head of the Department of Surgery, on July 30, 2019, where he said, “I’m planning to return to work shortly and will be looking for ways to cause trouble, I mean help fix our broken system (before it breaks me).”
[145] In my view, the statements in Dr. T’s notes, made in the context of what appear to be counseling sessions between Dr. Costa and his family doctor, are not sufficient to prove that the over-riding purpose of his complaint was to punish or coerce anyone. I also note that the tone of his email to the Head of the Department of Surgery was informal and friendly, and the content of the email suggests he was considering reasonable solutions to the problems that he perceived in the Division’s delivery of services.
[146] There is ample evidence that Dr. Costa was frustrated with aspects of the Division’s operations, especially the on-call schedule, but this is not sufficient to prove his frustration motivated him to want to punish Dr. Moran or NHA, or to otherwise file his complaint for an improper purpose. The only direct evidence before me about his motivation to file the complaint is his sworn statement, in which he denies any improper motive, and affirms his belief that he experienced discrimination. I am not satisfied that the evidence relied on by the respondents is sufficient to disprove his sworn statement.
[147] I dismiss the applications under s. 27(1)(e).
E. Section 27(1)(a) – No jurisdiction
[148] Section 27(1)(a) permits the Tribunal to dismiss all or part of a complaint that is not within its jurisdiction. NHA says Dr. Costa’s allegation about the reallocation of his OR time is not within the Tribunal’s jurisdiction because, under the Hospital Act , this allegation is within the exclusive jurisdiction of the HAB.
[149] Section 46 of the Hospital Act says the HAB may hear appeals from a decision of a hospital’s board of management that modifies, suspends, or revokes a physician’s permit to practice in a hospital, and may affirm, vary, reverse, or substitute its own decision for that of a board of management. The parties agree that NHA’s board of directors is the Hospital’s board of management, for the purpose of s. 46.
[150] Section 46(3) of the Hospital Act says the HAB “has exclusive jurisdiction to inquire into, hear and determine all those matters and questions of fact, law and discretion arising or required to be determined in an appeal under this section and to make any order permitted to be made.”
[151] The HAB may apply the Code , but is not required to do so. Under s. 46(4.2)(f) of the Hospital Act and s. 46.2 of the Administrative Tribunals Act , the HAB may decline jurisdiction to apply the Code , and may consider whether there is a more appropriate forum in which the Code may be applied.
[152] NHA says Dr. Costa should have brought his complaint to the HAB, rather than the Tribunal. NHA cites a case where the HAB determined issues related to elimination of a physician’s OR time and removal from an on-call schedule, and ordered the creation of a new on-call schedule: Andrew Campbell v. Provincial Health Services Authority , 2020 BCHAB 2 [ Campbell ], affirmed in Provincial Health Services Authority v Campbell , 2021 BCSC 823.
[153] Dr. Costa says s. 46 of the Hospital Act does not oust the Tribunal’s jurisdiction over his complaint for three reasons. I will deal with each argument in turn.
[154] First, Dr. Costa says the HAB does not have jurisdiction over his complaint because s. 46 only applies to decisions by a hospital’s board of management, and the evidence shows that the decision to reallocate his OR time was not made by NHA’s board. He relies on Dr. Moran’s email dated January 15, 2021, to members of the Division. The email indicates the reallocation decision was made in a meeting attended by Dr. Moran, the Hospital’s Chief of Medical Staff (Dr. B), the Hospital’s Vice-President of Medicine (Dr. C), the Head of the Hospital’s Department of Surgery (Dr. O), NHA’s Medical Director at the time (Dr. P), and two unnamed NHA lawyers. Dr. Costa says none of these people were members of NHA’s board, so it cannot be said that the decision was made by the Hospital’s board of management.
[155] In reply to this argument, NHA relies on Campbell , where the HAB found that if a decision regarding privileges is one that a hospital’s board of management has authority to make, then the HAB has jurisdiction over the decision, even if the board has delegated its decision-making authority to others: Campbell at paras. 63 and 67.
[156] I find Campbell to be a persuasive authority that a decision about a physician’s privileges at the Hospital is within HAB’s jurisdiction, even if the decision is made by NHA and Hospital staff, not NHA’s board. Dr. Costa does not cite any authorities to the contrary.
[157] Next, Dr. Costa says the HAB does not have jurisdiction because s. 46 only applies to decisions about a physician’s permit to practice in a hospital, and the reallocation of his OR time did not modify, suspend, or revoke his permit to practice in the hospital, within the meaning of s. 46 of the Hospital Act . Dr. Costa says his permit to practice in the Hospital remained unchanged from the time it was first issued until his resignation from NHA. He cites a letter written by NHA’s Vice-President of Medicine, addressed to Dr. Moran, dated February 10, 2021, saying the decision to reallocate Dr. Costa’s OR time was not disciplinary, and “his medical staff appointment and site privileges have not been suspended or altered in any way.”
[158] In reply to this argument, NHA again relies on Campbell , which shows the HAB has adopted a contextual definition of privileges, which may include access to OR time: Campbell at paras. 40-48. In Campbell , the HAB found it had jurisdiction over a decision not to allocate any cases to the appellant, even though his permit to practice in the hospital had not been formally revoked.
[159] Again, I find the HAB’s decision in Campbell to be persuasive. I accept that the HAB interprets its jurisdiction over decisions about physicians’ permits to practice in hospitals broadly. Although Dr. Costa’s permit to practice in the Hospital was not revoked, I am not persuaded that this takes the decision to reallocate his OR time out of the HAB’s jurisdiction.
[160] Finally, Dr. Costa says the Hospital Act does not oust the Tribunal’s jurisdiction in any event. He says s. 46 effectively creates concurrent or overlapping jurisdiction between the HAB and the Tribunal. Regarding this argument, NHA and Dr. Costa both rely on Northern Regional Health Authority v. Horrocks , 2021 SCC 42 [ Horrocks ], where the Supreme Court of Canada found that resolving jurisdictional contests between labour arbitrators and statutory tribunals involves two questions: whether the relevant legislation grants the arbitrator exclusive jurisdiction over some matters, and if so, whether the dispute between the parties fall within the scope of that jurisdiction: Horrocks at para. 39.
[161] NHA says the same analysis should apply in this case. It says the Hospital Act explicitly signals a legislative intention to give the HAB exclusive jurisdiction over questions arising under s. 46, and the reallocation of Dr. Costa’s OR time was within that jurisdiction. NHA goes on to say the Tribunal and the HAB have concurrent jurisdiction over alleged contraventions of the Code , but not over “privileging matters”, and where such matters are intertwined with contraventions of the Code , the starting point for a complainant must be an appeal to the HAB.
[162] Dr. Costa relies on para. 33 of Horrocks , where the Court used the Code as an example of a statute that allows for deferral of a complaint that could be dealt with by a labour arbitrator. The Court said this discloses a legislative intention for concurrent jurisdiction over disputes that could be addressed by labour arbitrators, despite a provision for mandatory arbitral dispute resolution in the Labour Relations Code . Dr. Costa’s argument suggests that this legislative intention for concurrent jurisdiction also applies to the HAB. NHA’s submissions do not address para. 33 of Horrocks .
[163] Dr. Costa also relies on s. 4 of the Code , which says that where there is a conflict between the Code and another enactment, the Code prevails. He cites case law to the effect that human rights legislation is not to be limited except by express legislative language, and he says the language of s. 46(3) of the Hospital Act does not expressly oust the Tribunal’s jurisdiction.
[164] I agree with NHA that the text of s. 46 suggests that the HAB has exclusive jurisdiction over questions arising under that section. However, to determine whether this provision ousts the Tribunal’s jurisdiction over Dr. Costa’s complaint, I must read the provision in the context of the Hospital Act as a whole, considering the object of the Act and the intention of the legislature: Rizzo & Rizzo Shoes Ltd. (Re) , [1998] 1 S.C.R. 27. This means I must consider the context and the purpose of the Act , in addition to the text of s. 46. Further, even if the Hospital Act indicates a legislative intention for jurisdiction to the exclusion of the Tribunal, I must also consider the legislative intention expressed in the Code.
[165] First, I do not agree that the Hospital Act discloses a legislative intention to grant the HAB jurisdiction over human rights disputes falling within its jurisdiction, to the exclusion of the Tribunal. The situation is not comparable to the jurisdiction of a labour arbitrator discussed in Horrocks . The relevant context includes the fact that the HAB may decline jurisdiction to apply the Code , and may consider whether there is a more appropriate forum in which the Code may be applied. This suggests that questions concerning the Code , even if they are within the HAB’s jurisdiction, may be addressed in a forum other than the HAB.
[166] I must also consider the purpose of the Hospital Act . The Act does not explicitly set out its purposes, and the parties did not make any submissions on this issue. In a general sense, the purpose of the Hospital Act is to provide for the administration of hospitals in the province. Reading the Act as a whole, it appears the purpose of s. 46 is to support the efficient operation of hospitals by ensuring that disputes about operational decisions affecting healthcare professionals who practice in a hospital are resolved expeditiously. This is supported by s. 46(3.2), which creates a 90-day time limit for practitioners to challenge decisions with which they are dissatisfied, and by s. 46(3.4), which says that unless the parties have waived an oral hearing, the HAB must schedule one as soon as practicable.
[167] I also consider that s. 46 does not appear to give the HAB authority to award damages or compensation, even if it reverses a decision about a practitioner’s privileges: Campbell at para. 19; Dr. Michael Butler v. Vancouver Coastal Health Authority , 2015 BCHAB 2 at para. 54. This suggests the purposes of the Hospital Act do not include providing a remedy where discriminatory or otherwise inappropriate decisions about a practitioner’s privileges have caused harm to the practitioner. The HAB does not appear to have authority to grant the remedies sought in Dr. Costa’s complaint.
[168] In short, NHA has not persuaded me that the Hospital Act indicates a legislative intention to create a body with jurisdiction in respect of human rights matters, to the exclusion of the Tribunal.
[169] This conclusion is also consistent with the legislative intention made clear in s. 25 of the Code , which allows the Tribunal to defer consideration of complaints that could be dealt with in proceedings under another statute. This is the provision referred to at para. 33 of Horrocks . It implies that the legislature intended that the Tribunal should have concurrent jurisdiction over disputes that could be dealt with in other statutory proceedings, such as proceedings before the HAB.
[170] Dr. Costa’s complaint alleges that NHA’s decision about Dr. Costa’s privileges contravened the Code , and seeks compensation for the effects of that decision. It appears that the HAB has discretion to defer to the Tribunal in relation to such allegations. Unlike the Tribunal, the HAB does not appear to have the authority to provide compensation. Considering the text, context, and purpose of the Hospital Act , I find that even if the HAB has exclusive jurisdiction over some matters pertaining to practitioners’ hospital privileges, it does not oust the Tribunal’s jurisdiction to address Dr. Costa’s complaint under the Code .
[171] I dismiss the application under s. 27(1)(a). I find the Tribunal has jurisdiction over the complaint.
IV CONCLUSION
[172] I deny the applications to dismiss Dr. Costa’s complaint. The complaint will proceed to a hearing.
Andrew Robb
Tribunal Member