Lavoie v. Fraser Health Authority, 2025 BCHRT 8
Date Issued: January 8, 2025
File: CS-005590
Indexed as: Lavoie v. Fraser Health Authority, 2025 BCHRT 8
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:
Kyle Lavoie
COMPLAINANT
AND:
Fraser Health Authority
RESPONDENT
REASONS FOR DECISION
APPLICATION TO DISMISS A COMPLAINT
Section 27(1)(c)
Tribunal Member: Edward Takayanagi
On their own behalf: Kyle Lavoie
Counsel for the Respondent: Annie Olson
I INTRODUCTION
[1] Kyle Lavoie is a registered nurse employed by Fraser Health Authority. He says Fraser Health discriminated in the area of employment based on the ground of physical disability contrary to s. 13 of the Human Rights Code when he was placed on a leave of absence because he did not get vaccinated against COVID-19.
[2] Fraser Health denies discriminating and has filed an application to dismiss the complaint under s. 27(1)(c) of the Code . It argues that there is no reasonable prospect the complaint will succeed because Mr. Lavoie has not provided evidence of a disability.
[3] Mr. Lavoie did not respond to the application to dismiss. The Tribunal set a schedule for submissions by a letter dated September 13, 2024. Fraser Health filed their application to dismiss on October 18, 2024, and sent a copy to Mr. Lavoie. Mr. Lavoie did not file a response by the deadline of November 22, 2024, or at all. Fraser Health emailed Mr. Lavoie on November 27, 2024, copying the Tribunal, to confirm that Mr. Lavoie had not filed a response to the application. Mr. Lavoie did not respond to the email. In these circumstances, I am satisfied that Mr. Lavoie had notice of the application and ample opportunity to file a response submission. Therefore, I find there is no unfairness in making this decision on the materials before me.
[4] For the reasons set out below, I allow the application. To make this decision, I have considered all the information filed by the parties, including Mr. Lavoie’s original complaint and his additional complaint submissions. In these reasons, I only refer to what is necessary to explain my decision. I make no findings of fact.
II BACKGROUND
[5] Mr. Lavoie is a registered nurse employed by Fraser Health.
[6] On September 13, 2021, the Provincial Health Office of British Columbia (PHO) announced that all employees in the health sector would be required to be fully vaccinated against COVID-19 by October 26, 2021. Fraser Health informed its employees, including Mr. Lavoie, of this impending requirement and warned employees that failure to comply could result in being placed on unpaid leave and/or termination of employment.
[7] On October 14, 2021, the PHO issued the Hospital and Community (Health Care and Other Services) COVID-19 Vaccination Status Information and Preventive Measures Order , which required all health sector staff to receive at least one dose of the COVID-19 vaccine by October 25, 2021, unless they qualified for a medical exemption to vaccination.
[8] Mr. Lavoie did not comply with the vaccination requirement. He did not inform Fraser Health that he was exempt for medical reasons, nor did he say that he has a disability preventing him from being vaccinated.
[9] Because Mr. Lavoie did not comply with the vaccination requirement, Fraser Health placed him on an unpaid leave of absence effective October 26, 2021.
[10] Mr. Lavoie received a COVID-19 vaccination on November 23, 2021, and returned to work.
III DECISION
[11] Fraser Health applies to dismiss Mr. Lavoie’s complaint under s. 27(1)(c) because, it says there is no reasonable prospect that Mr. Lavoie could establish that he has a disability. I am satisfied, on a review of the whole of the materials before me, that this is the case.
[12] 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.
[13] 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. It is up to the parties to give the Tribunal the information necessary for it to make a decision: Bell v. Dr. Sherk and others , 2003 BCHRT 63 at paras. 25-26.
[14] 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.
[15] To prove his complaint at a hearing, Mr. Lavoie will have to prove that he has a disability, he was adversely impacted in employment, and his protected characteristic was a factor in the adverse impact: Moore v. British Columbia (Education) , 2012 SCC 61 [ Moore ] at para. 33.
[16] A claim of disability discrimination arising from a requirement to be vaccinated must begin by establishing that the complainant has a disability under the Code . The Code does not protect people who refuse to get vaccinated as a matter of personal preference, because they do not believe in the efficacy of vaccinations, or because they disagree with the requirement to be vaccinated. The Code only protects people from discrimination based on certain protected characteristics, including disability.
[17] Fraser Health disputes that Mr. Lavoie could prove he has a disability within the meaning of the Code . It says Mr. Lavoie has not provided them with any evidence of a disability and he does not allege that he has a disability in his complaint.
[18] In his complaint, Mr. Lavoie says that he has a “family history of clotting, including severe heart attacks and strokes.” Mr. Lavoie does not say that he himself has had heart attacks, strokes, or clotting issues; rather, he only alleges that he has this family history. In my view, this assertion, on its own, is not enough to take Mr. Lavoie’s allegation that he has a disability out of the realm of conjecture.
[19] In the absence of any submissions from Mr. Lavoie about his alleged disability and the absence of any documentation – medical or otherwise – to reasonably demonstrate that Mr. Lavoie has a disability, Fraser Health has persuaded me that there is no reasonable prospect that Mr. Lavoie could succeed in proving he has a disability under the Code . Mr. Lavoie has not disclosed any information from which the Tribunal could reasonably infer that there is a reasonable prospect that it could find at a hearing that he has a disability. A broad assertion about family history is not enough. Therefore, the complaint has no reasonable prospect of success.
[20] In my view, Mr. Lavoie has not taken the first element of the Moore test out of the realm of conjecture. I am therefore satisfied there is no reasonable prospect Mr. Lavoie will succeed in his complaint.
IV CONCLUSION
[21] The application to dismiss the complaint is granted. The complaint is dismissed.
Edward Takayanagi
Tribunal Member