'Reasonable' to find no link between worker's protected ground and dismissal: Court of Appeal
The British Columbia Court of Appeal has upheld a decision by the province’s human rights tribunal dismissing a worker’s complaint of discrimination due to a lack of a connection between the worker’s protected grounds and her termination of employment.
The worker was employed as a security guard at the Pacific National Exhibition (PNE) in Vancouver for several years. Her employment was terminated on April 12, 2019, and she filed a human rights complaint four months later, naming the PNE and multiple co-workers as respondents.
The worker’s complaint alleged that she was discriminated against in her employment up to and including termination, based on the grounds of political belief, religion, marital status, family status, physical or mental disability, sex, gender identity or expression, and age. However, her application was vague on facts that could establish discrimination.
She claimed that a particular manager at the PNE was “always in the background” and reduced female staff at regular intervals. She also said that he prevented her from attending Occupational Health and Safety Committee meetings to “silence my voice” and he didn’t welcome her asking for washroom breaks or shelter from the elements when outside.
The worker also said that the manager started a “hate campaign” against her when she had a stint as a first aider that ended after a sexual harassment incident from a co-worker, who wasn’t disciplined.
The tribunal told the worker that it needed more information from her before deciding whether to accept her complaint for filing. It asked her how her protected characteristics were factors in her negative experience at the PNE, to provide more details about sexual harassment that appeared to have happened years previously and outside the BC Human Rights Code’s one-year time limit, and details about any denial of accommodation for a mental disability. Any individual she named as a respondent in her application had to have specific allegations against them, the tribunal said.
Worker denied mental disability
The worker responded with a letter setting out her employment history at the PNE and her relationship with the individual respondents. She mentioned that the PNE was concerned about the way she communicated with clients and a possible instance of sexual harassment “many years” ago that wasn’t worth pursuing. She also described a meeting with management about a possible issue with her foot, but she said she didn’t ask for accommodation.
The worker also said that PNE management had asked her about going to a doctor for possible mental health issues and at the termination meeting they said they thought something was wrong that was causing her “to make really disastrous decisions” and the “dysfunctional and chaotic” way she communicated. The worker denied having any mental health issues and said that she had some physical conditions in her hands, feet, and legs.
In March 2021, the tribunal rejected the complaint under s. 27(1)(b) of the code, which allows complaints to be dismissed without a hearing if the alleged actions could not constitute a breach of the code, even if proven.
The worker applied for judicial review focusing on the ground of disability, arguing that the tribunal failed to recognize that the PNE had perceived her as having a mental disability, and that this perception had influenced the termination of her employment. She also argued that the tribunal failed to recognize that the code protects against discrimination based on perceived disability, it erred in finding that the PNE didn’t end her employment because it perceived her as having a mental disability, and the tribunal’s process was unfair.
The chambers judge reviewing the decision found that the tribunal’s letter to the worker requesting more information about her mental disability and other grounds showed that the tribunal was open to considering discrimination based on perceived disability. The judge also found that it wasn’t unreasonable for the tribunal to determine that the PNE’s inquiries were for the purpose of potential accommodation, not discrimination. Ultimately, the chambers judge found the tribunal’s decision and process were reasonable and fair.
Accommodation argument introduced
The worker appealed the chambers judge’s decision, maintaining that it was incorrect. She also raised new grounds, including that the PNE denied her requests for accommodation of a physical disability and new arguments about the unfairness of the tribunal’s process. She said her former lawyer limited the complaint to mental disability when she had physical issues as well.
The Court of Appeal noted that the worker didn’t apply to introduce fresh evidence and it was otherwise inappropriate to do so because the tribunal had been tasked with determining if the allegations could contravene the code if proven, regardless of the evidence. In addition, the worker’s claims about ineffective legal representation didn’t meet the high threshold required for such cases, said the court.
The appeal court noted that the tribunal had to decide if the worker could demonstrate the three elements of discrimination – a protected characteristic, adverse treatment, and a link between the two – in her complaint. The tribunal covered all of these, stating that the worker didn’t provide information on specific examples of discrimination on any of her protected characteristics. Her main focus of a perceived mental disability didn’t include a link between it and her termination of employment, said the court, adding that the tribunal's decision focused on whether there was a connection between the alleged discriminatory grounds and the adverse treatment, rather than on any potential defence from the employer.
The court also found there was no procedural unfairness caused by a delay. The tribunal asked the worker for more information nine months after her complaint was filed and it issued its decision eight months after she responded. This delay wasn’t significant enough on its own to amount to procedural unfairness, the court said.
The Court of Appeal determined that the tribunal’s decision not to accept the worker’s complaint wasn’t "patently unreasonable" and that its process was fair. The tribunal’s decision was based on the lack of concrete facts in the worker’s complaint that could establish a link between the protected characteristics she claimed and the adverse treatment she experienced, said the Court of Appeal in dismissing the appeal.
