Paine v. Gordon Food Service Canada Ltd. and another, 2024 BCHRT 177
Date Issued: June 7, 2024
File: CS-002148
Indexed as: Paine v. Gordon Food Service Canada Ltd. and another, 2024 BCHRT 177
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 Paine
COMPLAINANT
AND:
Gordon Food Service Canada Ltd. and Curtis Tateyama
RESPONDENTS
REASONS FOR DECISION
APPLICATION TO Dismiss a complaint
Sections 27(1)(c) and (d)(ii)
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Tribunal Member: |
Beverly Froese |
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Advocate for the Complainant: |
Emily Zarychta |
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Counsel for the Respondents: |
Ryan A. Anderson and Mark Bout |
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I INTRODUCTION
[1] In September 2020, Anthony Paine made a complaint against Gordon Food Service Canada Ltd. [Gordon Food] and Curtis Tateyama alleging discrimination regarding his employment contrary to s. 13 of the Human Rights Code. Specifically, Mr. Paine alleges that the Respondents failed to accommodate his disability while he was on medical leave and then terminated his employment.
[2] The Respondents deny discriminating against Mr. Paine and say their actions were justified. Specifically, the Respondents say that because Mr. Paine’s condition prevented him from performing the duties of his job, his employment contract was frustrated. They also say they accommodated Mr. Paine’s disability to the point of undue hardship.
[3] The Respondents apply to dismiss the complaint under s. 27(1)(c) of the Codeon the ground that it has no reasonable prospect of success. Alternatively, they apply under s. 27(1)(d)(ii) of the Codeto dismiss the complaint against Mr. Tateyama.
[4] For the reasons set out below, I deny the application under s. 27(1)(c). Based on the materials before me, I am persuaded it is reasonably certain that the Respondents would be able to establish that its employment contract with Mr. Paine was frustrated. However, I am not persuaded it is reasonably certain the Respondents would be able to establish that Gordon Food would otherwise not have been able to accommodate Mr. Paine’s disability without incurring undue hardship.
[5] For the reasons set out below, I grant the application under s. 27(1)(d)(ii). Based on the materials before me, I find it would serve the Code’s purposes to dismiss the complaint against Mr. Tateyama and proceed only against Gordon Food.
[6] To make this decision, I have considered all the information filed by the parties. In these reasons, I only refer to what is necessary to explain my decision. I make no findings of fact on the merits of the complaint.
[7] I apologize to the parties for the length of time it has taken the Tribunal to issue this decision.
II BACKGROUND
[8] Gordon Food is a food-service distributor that serves clients across North America. Its only food distribution facility and warehouse in British Columbia is in Delta. Over 700 employees work at the Delta location in three broad job categories: (1) commercial truck drivers; (2) warehouse employees; and (3) what the Respondents describe as “administrative/professional” staff, which includes positions in human resources and sales.
[9] Mr. Tateyama is Gordon Food’s Senior Human Resources Generalist.
[10] In November 2008, Mr. Paine was hired to be a Material Handler. The typical duties of a Material Handler include selecting customers’ orders, wrapping and loading pallets onto trucks, and receiving and restocking product. To perform their duties, Material Handlers are required to operate heavy equipment such as a forklift and pallet jack.
[11] Starting in May 2017, Mr. Paine took several approved absences for back pain. From mid-November to early December 2017, Mr. Paine attempted to return to work on a modified work plan but was not successful.
[12] Mr. Paine says that in early December 2017, he started to feel dizzy and light-headed, and like he might fall over. At that time, he provided Gordon Food with a note from his doctor stating he should not work for one week. Around late December 2017, Mr. Paine provided Gordon Food with another note from his doctor stating he had significant vertigo (dizziness) and that operating a motor vehicle would pose a risk to himself and others. The note also said that Mr. Paine would be seeing a specialist in early January 2018. The doctor recommended that Mr. Paine be put on light duties until his symptoms improved.
[13] Mr. Paine says that around this time, he asked Mr. Tateyama several times if he could return to work on light duties or in a different position. He says Mr. Tateyama told him he could only return to work in his original position of Material Handler. Mr. Paine says Mr. Tateyama told him that light duties were reserved for employees who had made a WorkSafeBC claim. The Respondents do not appear to dispute these allegations.
[14] In January 2018, Mr. Paine applied for short term disability [STD] benefits. At that time his primary diagnosis was vertigo, and he could not operate heavy machinery. In late January 2018, Mr. Paine saw a specialist who recommended some treatment exercises.
[15] In mid-February 2018, Mr. Paine’s application for STD benefits was approved. In late February 2018, Gordon Food received updated medical information from Mr. Paine’s doctor. At that time the doctor said Mr. Paine continued to suffer from vertigo and that operating heavy machinery posed a risk to him and others. The doctor also said that Mr. Paine had seen a specialist and started physiotherapy. As he did in December 2017, the doctor recommended that Mr. Paine return to work on light duties until his symptoms improved.
[16] Mr. Paine says that around this time, he asked Mr. Tateyama if there were any positions where he could return to work. He says Mr. Tateyama told him he could only return to work in his Material Handler position with his original duties. The Respondents do not appear to dispute these allegations.
[17] In early April 2018, Mr. Paine saw a neurologist. Shortly after that, Gordon Food received updated medical information from Mr. Paine’s doctor that said he continued to experience dizziness.
[18] In early May 2018, Mr. Paine’s doctor reported to Gordon Food that Mr. Paine was experiencing significant dizziness that was affecting his day-to-day life. The doctor also said Mr. Paine had been referred to a different specialist for a second opinion. In mid-May 2018, Mr. Paine’s application for long term disability [LTD] benefits was approved.
[19] In mid-June 2018, Gordon Food’s LTD benefits provider emailed Mr. Tateyama and said that Mr. Paine’s ability to operate any machinery or drive was still limited. The benefits provider also said they hoped to engage in return-to-work planning for Mr. Paine in early September 2018. Around mid-July 2018, the benefits provider emailed Mr. Tateyama and said Mr. Paine was still limited in activities such as bending and heavy lifting.
[20] In early August 2018, Gordon Food received updated medical information from a specialist stating that Mr. Paine could not work in a “dangerous area” because his symptoms were still regressing. The specialist also said that Mr. Paine and his doctor had discussed the possibility of Mr. Paine retraining for “a new work situation”. In late August 2018, the benefits provider informed Gordon Food that Mr. Paine’s ability to operate machinery was still restricted. The benefits provider also informed Gordon Food that it was anticipating Mr. Paine would make a full recovery and might be back to work by November 2018.
[21] In early September 2018, Mr. Paine’s doctor reported that although his symptoms had improved, Mr. Paine continued to experience dizziness and could not operate heavy machinery.
[22] Around mid-November 2018, the benefits provider informed Mr. Paine that a revised rehabilitation plan had been approved. That plan consisted of additional physiotherapy and a gradual return to work program starting in mid-December 2018. In late December 2018, the benefits provider informed Mr. Paine that the gradual return to work plan would start in mid-January 2019. Mr. Paine says the benefits provider was working with Gordon Food to try to find a suitable position for him, but Gordon Food only offered a return to his Material Handler position with reduced hours. He says that on his doctor’s advice, he did not return to his Material Handler position.
[23] Around mid-January 2019, Gordon Food received updated medical information from the specialist saying that Mr. Paine was still very unsteady on his feet. The specialist said that WorkSafeBC wanted Mr. Paine to return to work on a graduated basis but, in his opinion, it was time for Mr. Paine to get retraining. In late January 2019, the benefits provider informed Gordon Food that Mr. Paine was not able to start a graduated return to work because of his limitations around balance.
[24] Near the end of April 2019, the benefits provider informed Gordon Food that Mr. Paine’s “prognosis to return to his previous occupation is less likely”. The benefits provider also said they were working with Mr. Paine to explore other work options in the future and would follow up with him while he seeks new employment.
[25] In early June 2019, the benefits provider informed Gordon Food that Mr. Paine’s ability to drive forklifts and pallet jacks was still limited. The benefits provider also said they had identified alternative occupations for Mr. Paine and provided him with job search assistance.
[26] Around mid-July 2019, Mr. Paine was informed that his LTD benefits would end in mid-April 2020 because he was deemed capable of working in some capacity. Mr. Paine says that even though he was still restricted from operating heavy machinery and performing the duties of a Material Handler, he continued to make efforts to engage Mr. Tateyama in finding him an accommodated position. He says Gordon Food’s position remained that he could not return to work until he was able to perform his original job duties.
[27] Near the end of July 2020, Mr. Paine wrote to Gordon Food and said he was experiencing financial hardship. In his letter, Mr. Paine said that Gordon Food was required under the Code to consider his graduated return to work or explore alternative suitable positions. In his letter, Mr. Paine said Gordon Food rejected all previously proposed graduated return to work plans and had minimal contact with him. He also said there were a number of positions at Gordon Food to which he could transition without causing financial or operational hardship.
[28] In response, Mr. Tateyama told Mr. Paine that Gordon Food was willing to try a gradual return to work, but it would need his doctor to provide a detailed schedule and start date. Mr. Tateyama says Gordon Food asked for this medical information to ensure Mr. Paine’s return to work “would be safe and consistent with his functional limitations”.
[29] A few days later, Mr. Paine wrote to Gordon Food and said he had already provided medical documentation establishing that he was not able to return to work as a Material Handler and that he required retraining in a position that could accommodate his disability. Mr. Paine asked for a job description and list of duties for such a position and said he would provide a detailed schedule and start date after that information was reviewed by a medical professional. In early August 2020, Mr. Tateyama emailed Mr. Paine and told him that before Gordon Food could assess any possible accommodation options, they required an updated medical assessment that set out his current restrictions and what he was capable of doing. Mr. Tateyama also asked Mr. Paine to identify any positions within Gordon Food he thought might be suitable.
[30] Mr. Paine says he showed his doctor the email he received from Mr. Tateyama. He says his doctor told him that typically an employer would provide a form to fill out to describe the employee’s limitations. Mr. Paine says he then emailed Mr. Tateyama to ask whether there was such a form or if his doctor should provide a medical note. In response, Mr. Tateyama sent a document entitled “Physical Demands Analysis with Cognitive Description” for the Material Handler position that had been prepared by an occupational therapist. Mr. Tateyama told Mr. Paine to take the document to his doctor and have his doctor identify and comment on what tasks he could or could not do.
[31] In early September 2020, Mr. Paine emailed a note from his doctor with updated medical information. Mr. Paine’s doctor did not return the Physical Demands Analysis form but said that Mr. Paine could return to work although not to his previous job. Mr. Paine’s doctor also said Mr. Paine should avoid doing any activities that might aggravated his condition, for instance squatting, bending, neck rotation, and climbing. He also said Mr. Paine should not operate heavy machinery or do any activity that requires high level balance. There was no indication in the doctor’s note as to whether Mr. Paine’s condition would change or improve in the future. In his email attaching the doctor’s note, Mr. Paine told Mr. Tateyama that he needed to hear from him regarding his new job placement.
[32] Mr. Tateyama says that after receiving the updated medical information, Gordon Food assessed Mr. Paine’s ability to work. He says that in Gordon Food’s view, the updated medical information was consistent with that provided by the benefits provider, in that Mr. Paine could not return to a Material Handler position or in any other existing warehouse position. Mr. Tateyama says he reviewed all job openings and available work, including positions expected to be vacant in the near future. He says he identified 21 positions, all of which were either warehouse or commercial truck driver positions. Mr. Tateyama says that based on Mr. Paine’s communications and the medical information, it was evident that Mr. Paine could not operate heavy machinery or perform the physical activities routinely associated with the Material Handler position and any of the other existing warehouse jobs. He says the only remaining available positions in the warehouse were driving commercial trucks and delivering products to customers, which Mr. Paine could not do because of his medical restrictions and lack of qualifications.
[33] Mr. Tateyama says Gordon Food then considered if any other work might be available for Mr. Paine. He says that in September 2020, there were no available administrative positions. He further says that even if there were, Mr. Paine did not have any experience or qualifications in sales, human resources, or any of the other administrative positions. Lastly, Mr. Tateyama says that even if Mr. Paine was trained to perform some basic tasks, for instance data entry, there was insufficient work of that nature available to create a position for him. He says that creating such a position for Mr. Paine would have resulted in a lack of work for other administrative staff and the displacement of at least one administrative employee.
[34] Gordon Food says it ultimately determined that it did not have any available work that matched Mr. Paine’s medical restrictions and qualifications. It says that because there was no prognosis for any change in Mr. Paine’s medical condition, there was no reasonable prospect that he could return to work in any capacity within the foreseeable future.
[35] In mid-September 2020, Gordon Food wrote to Mr. Paine and said that because there were no suitable work opportunities for him and no vacancies or opportunities were anticipated in the foreseeable future, his employment had ended.
III DECISION
A. Section 27(1)(c) – No reasonable prospect of success
[36] The Respondents apply to dismiss the complaint on the basis that it has no reasonable prospect of success: Code,s. 27(1)(c) The onus is on the Respondents to establish the basis for dismissal.
[37] Section 27(1)(c) is part of the Tribunal’s gate-keeping function. It allows the Tribunal to remove complaints that do not warrant the time and expense of a hearing.
[38] 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 942at para. 77.
[39] A dismissal application is not the same as a hearing: Lord v. Fraser Health Authority, 2021 BCSC 2176at 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 [Hill] at para. 27.
[40] To prove his complaint at a hearing, Mr. Paine will have to prove that he had a physical disability protected by the Code, he was adversely impacted regarding his employment with Gordon Food, and his protected characteristic was a factor in the adverse impact: Moore v. British Columbia (Education), 2012 SCC 61 at para. 33. If he does that, the burden will shift to the Respondents to justify the impact as a bona fideoccupational requirement [BFOR]. If the impact is justified, there is no discrimination.
[41] The Respondents do not argue that Mr. Paine has no reasonable prospect of successfully proving his case at a hearing. Rather, they argue that the complaint has no reasonable prospect of success because it is reasonably certain they will be able to prove a BFOR defence at the hearing: Purdy v. Douglas College and others, 2016 BCHRT 117 at para. 50.
[42] To justify the employment-related adverse impacts at a hearing, the Respondents would have to prove that Gordon Food: (1) adopted the standard at issue for a purpose rationally connected to the performance of the job; (2) adopted the standard in an honest and good faith belief that it was necessary to the fulfillment of that legitimate purpose; and (3) the standard is reasonably necessary to the accomplishment of that legitimate purpose. This third element encompasses Gordon Food’s duty to accommodate Mr. Paine’s disability 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 [Meiorin] at para. 54.
[43] The parties do not appear to dispute that the standard Gordon Food adopted was requiring an employee to attend work and be physically able to do their job. They also do not appear to dispute that the standard was adopted in good faith and is rationally connected to the performance of Mr. Paine’s job. The parties appear to agree that the only issue in this application is whether it is reasonably certain that the Respondents will be able to establish at a hearing that they accommodated Mr. Paine’s disability to the point of undue hardship.
[44] The Respondents argue that they met the duty to accommodate because Mr. Paine’s contract of employment was frustrated due to his inability to work in any capacity for the foreseeable future. The Respondents say that at the time Mr. Paine’s employment was terminated, there was no prognosis for his return to work as a Material Handler and no modified or alternate positions for which he might be qualified were available.
[45] In Wightman Estate v. 2774046 Canada Inc., 2006 BCCA 424, the British Columbia Court of Appeal described the doctrine of frustration of contract as meaning:
… that a contract may be brought to an end by operation of law and the parties discharged from further performance if, without the fault of either party, the circumstances in which it was expected to be performed have changed so radically that performance would be impossible or at least something fundamentally different than was initially contemplated. In such circumstances, the contract is said to be frustrated. (para 1)
[46] The doctrine of frustration of contract applies in the human rights analysis and “should be seen as a basis upon which an employer may be able to justify a prima faciediscriminatory termination of the employment of a disabled employee as a BFOR”: Senyk v. WFG Agency Network (B.C.) Inc. , 2008 BCHRT 376 at para. 314. The Tribunal has accepted that “there may be a point at which, due to frustration, the employer’s obligation to continue to accommodate the disabled employee will come to an end”: Senykat para. 314.
[47] The doctrine of frustration does not, however, replace the human rights analysis. In a case where a respondent asserts frustration of contract, the Tribunal first considers whether the employment contract was frustrated and then whether accommodating the complainant’s disability in their previous position or an alternate position would otherwise have caused an undue hardship: Senykat para. 356; Emergency Health Services Commission v. Cassidy , 2011 BCSC 1003 [Cassidy] at paras. 41 and 47.
[48] I now consider whether it is reasonably certain that the Respondents would be able to establish that Gordon Food’s employment contract with Mr. Paine was frustrated. I then consider whether it is reasonably certain the Respondents would be able to establish that accommodating Mr. Paine’s disability would otherwise have been an undue hardship.
1. Frustration of contract
[49] When determining whether an employment contract has been frustrated, the non-exhaustive and interrelated factors include the terms of the contract, the length the employment was likely to last if the employee had not become ill or injured, the nature and duration of the employment, and the nature of the illness or injury and prognosis for recovery: Senykat para. 302; Barker v. Vitalus Nutrition, 2016 BCHRT 88 at paras. 58-59 and 62; Chohan v. Costco Wholesale Canada , 2017 BCHRT 233 at paras. 32-34.
[50] There is evidence before me weighing against a finding that Mr. Paine’s employment contract was frustrated. Specifically, the evidence indicates that the employment contract between Gordon Food and Mr. Paine was for a full-time position as a Material Handler. It also indicates that the employment contract provided for STD and LTD benefits. The evidence indicates that Mr. Paine’s employment was not temporary or would only last for the duration of a particular job. It indicates that Mr. Paine was one of several Material Handlers and he did not occupy a “key post which must be filled and filled on a permanent basis if his absence is prolonged”: Wightman Estateat para. 17, citing Marshall v. Harland & Wolff Ltd. , [1972] 2 All E.R. 715, [1972] 1 W.L.R. 899 (N.I.R.C.) at 718-9. Lastly, it indicates that Mr. Paine was a long-term employee of Gordon Food and saw his job “as a planned career path, not just another job”.
[51] However, I am persuaded by other evidence that it is reasonably certain the Respondents would be able to establish that Gordon Food’s employment contract with Mr. Paine for the Material Handler position was frustrated. The evidence indicates that at the time Mr. Paine’s employment was terminated, he had physical limitations that prevented him from operating heavy machinery. It indicates that Mr. Paine’s doctor recommended he not do activities that might aggravate his condition, for example lifting and bending. The evidence indicates that Mr. Paine was on medical leave for almost three years and there was no indication that his condition would improve or change in the foreseeable future. Lastly, and most importantly, the evidence indicates that because of his medical condition, Mr. Paine did not seek a return to his Material Handler position, even on a graduated basis.
[52] The evidence as a whole convinces me it is reasonably certain that the Respondents would be able to prove that Mr. Paine was unable to perform the essential functions of the Material Handler position “for a period of time sufficient to say that, in a practical or business sense, the object of the employment has been frustrated”: Wightman Estate at para. 21.
2. Would accommodating Mr. Paine’s disability have otherwise been an undue hardship?
[53] To meet this part of the Meiorintest, an employer must establish that it could not modify the employee’s duties or workplace to enable them to do their job without incurring undue hardship: Hydro-Qu ébec v. Syndicat des employé-e-s de techniques professionnelles et de bureau d’Hydro-Québec, section locale 2000 (SCFP-FTQ), 2008 SCC 43 at para. 16. An employer is not required to fundamentally change the employee’s working conditions or create a “tailor-made” job for the employee:Hydro-Québecat para. 16; Wilcox v. University of British Columbia and others , 2014 BCHRT 228 at para. 94. In situations where an employee is chronically absent due to illness or injury, “if the employer shows that, despite measures taken to accommodate the employee, the employee will be unable to resume his or her work in the reasonably foreseeable future, the employer will have discharged its burden of proof and established undue hardship”: Hydro-Qu ébec at para. 18. When “assessing the adequacy of the employer’s efforts to accommodate, the entire history of the matter must be considered on a global basis”: Buchner v. Emergency and Health Services Comm. (No. 2) , 2008 BCHRT 317 at para. 404.
[54] In Meiorin, the Court distinguished between the procedure the employer adopted to assess whether the employee could be accommodated from the substantive content of the accommodation offered or, alternatively, the employer’s reasons for not offering accommodation: at para. 66. Deficiencies in the accommodation process, in and of themselves, are not violations of the Code: Chohan at para. 54. Having said that, the accommodation process an employer chooses “may serve as a useful analytical tool to assist in answering whether accommodation to the point of undue hardship has taken place”: Chohan at paras. 54-56. So long as “an employer has asked the appropriate questions and received a response which suggests that the employee is unlikely to return to their duties or any other duties with the employer in the reasonably foreseeable future”, procedural issues do “not change the answer to the ultimate question of whether accommodation to the point of undue hardship has occurred”: Chohanat para. 56.
[55] The Respondents say they accommodated Mr. Paine’s disability to the point of undue hardship because at the time his employment was terminated, there were no modified or alternative positions for which he was qualified, and which were available. The Respondents also say they accommodated Mr. Paine’s disability in a number of ways, including granting leaves of absence, facilitating graduated return to work programs, maintaining contact with Mr. Paine and the benefits provider, and requesting medical information regarding Mr. Paine’s condition and ability to return to work.
[56] Mr. Paine says he was not accommodated to the point of undue hardship because he was able to return to work with some disability-related limitations.
[57] I have reviewed the cases cited by the parties to support their arguments. In my view, there are both similarities and differences between this case and those relied on by the parties. For example, in Chohan the complainant was incapable of returning to any form of employment whereas in this case the evidence indicates that Mr. Paine was capable of returning to some form of employment. In Senyk, the Tribunal found the employer’s explanation that it terminated the complainant’s conduct because of frustration of contract was “nothing more than a pretext for the termination of her employment”: at para. 413. In my view, the evidence before me does not support Mr. Paine’s allegation that Gordon Food acted in a manner similar to the employer in Senyk. For that reason, I find the cases cited by the parties are of limited assistance when deciding whether this complaint should be dismissed before a hearing. What I take from the cases is that whether an employment contract has been frustrated and an employer has reasonably accommodated an employee on a lengthy medical leave is fact-specific and depends on the particular circumstances.
[58] Considering the evidence before me in its entirety, I am persuaded it is reasonably certain the Respondents would be able to establish that Gordon Food met its duty to accommodate Mr. Paine’s disability with respect to the Material Handler and other warehouse positions. The evidence indicates that at the time his employment was terminated, Mr. Paine continued to have physical limitations and restrictions that precluded him from operating heavy machinery such as a forklift or pallet jack. It indicates that Mr. Paine would not have been able to do the repetitive movements such as twisting, bending, and lifting required for those jobs. The evidence also indicates that Mr. Paine did not have the necessary license and would physically not have been able to perform the essential duties of a commercial truck driver.
[59] However, I am not persuaded by the evidence before me that it is reasonably certain the Respondents would be able to establish that it would have been an undue hardship for Gordon Food to accommodate Mr. Paine in one of the “administrative/professional” positions.
[60] The evidence indicates that after Mr. Paine went on medical leave in December 2017, his doctor recommended that he return to work on light duties. It indicates that around this time, Mr. Paine requested light duties or an alternate position but was told that he could only return to the Material Handler position and light duties were reserved for employees who had made claims with WorkSafeBC. The evidence indicates that in February 2018, Mr. Paine’s doctor again recommended he return to work on light duties and Mr. Paine again requested light duties or an alternate position but was told he could only return to the Material Handler position.
[61] The evidence indicates that in mid-July 2019, Mr. Paine’s was informed that his LTD benefits would end in April 2020 because he was deemed capable of working in some capacity. It indicates that at the end of July 2020, Mr. Paine asked for retraining so he could return to work in another position. It also indicates that in September 2020, Mr. Paine’s doctor said he could return to work in another position.
[62] The evidence indicates that it was not until September 2020 that Mr. Tateyama considered accommodating Mr. Paine in an administrative/professional position. It indicates that before Mr. Paine’s employment was terminated, Mr. Tateyama only requested medical information regarding his restrictions and limitations in the context of the Material Handler position. There is no evidence before me indicating that Mr. Tateyama ever requested medical information pertaining to Mr. Paine’s capacity to work in an administrative/professional position and never requested information from Mr. Paine about whether he had any of the requisite skills, qualifications, or experience to perform any of the duties associated with those positions. I note here that the Respondents acknowledge that with some training, Mr. Paine might have been capable of performing basic tasks such as data entry.
[63] I am not suggesting that anything the Respondents did or did not do during the accommodation process constitutes a separate violation of the Code. Rather, I am considering the procedural aspects of the accommodation process as an analytical tool to determine if the Respondents are reasonably certain to establish that it would have been an undue hardship to accommodate Mr. Paine in an administrative/professional position. Based on the evidence indicating that the Respondents did not consider accommodating Mr. Paine in any of these positions until he had been off work for almost three years, and the absence of evidence indicating that the Respondents asked appropriate questions about Mr. Paine’s capacity, skills, and experience, I am not persuaded it is reasonably certain they would.
[64] For the reasons set out above, Gordon Food’s application to dismiss the complaint under s. 27(1)(c) of the Codeis denied. I am not saying that the Respondents will not be successful in establishing a BFOR defence at a hearing. All I am saying is that a hearing is required so the Tribunal can make factual findings on a full evidentiary record.
B. Section 27(1)(d)(ii)
[65] The Respondents argue that it would not further the Code’spurposes to proceed against Mr. Tateyama: Daley v. BC (Ministry of Health), 2006 BCHRT 341.
[66] 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”: British Columbia Human Rights Tribunal v. Schrenk, 2017 SCC 62at para. 56. This is especially true for allegations of discrimination with a high degree of personal culpability, like sexual or racial harassment: Daley at para. 53.
[67] 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 are liable for the acts of their agents, they will be responsible for any remedy ordered by the Tribunal: Code, s. 44(2); Robichaud v. Canada, [1987] 2 SCR 84. In those situations, the remedial aims of the Codemay be most fairly and efficiently fulfilled without holding individuals liable.
[68] 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. It 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:
i. their conduct took place within the regular course of their employment;
ii. the person is alleged to have been the directing mind behind the discrimination or to have substantially influenced the course of action taken; and
iii. the conduct alleged against the individual has a measure of individual culpability, such as an allegation of discriminatory harassment.
Daleyat paras. 60-62.
[69] I will address these factors in turn.
[70] Gordon Food submits, and I accept, that it has the capacity to fulfill any remedies the Tribunal might order against Mr. Tateyama. It also submits, and I accept, that as the institutional respondent and Mr. Tateyama’s employer, it will satisfy any remedial order the Tribunal might make in respect of Mr. Tateyama. Based on this, I am satisfied that Gordon Food has adopted any acts and omissions of Mr. Tateyama as its own.
[71] The remaining issue is whether the nature of the conduct alleged against Mr. Tateyama is such that it furthers the purposes of the Code to proceed against him directly. In my view, it is not.
[72] Mr. Paine argues that Mr. Tateyama was the directing mind behind the decisions not to accommodate him and terminate his employment, or at least “had the ability to influence substantially the course of action taken”: Daley at para. 62. I agree with Mr. Paine that the evidence indicates that Mr. Tateyama was his only point of contact at the company. However, in my view, the evidence as a whole supports Gordon Food’s assertion that at all material times, Mr. Tateyama was acting as its Senior Human Resources Generalist. The evidence indicates that while Mr. Tateyama may have played a role in the decision to terminate Mr. Paine’s employment, I do not find anything in the nature of his alleged conduct that rises to the level of personal culpability requiring individual responsibility: Daley at para. 62.
[73] In these circumstances, I am persuaded that the Code ’s purposes would be served by dismissing the complaint against Mr. Tateyama and proceeding solely against Gordon Food. I grant the application to dismiss the complaint against Mr. Tateyama under s. 27(1)(d)(ii).
IV CONCLUSION
[74] The Respondents’ application to dismiss the complaint under s. 27(1)(c) of the Codeis denied.
[75] The Respondents’ application under s. 27(1)(d)(ii) to dismiss the complaint against Mr. Tateyama is granted.
Beverly Froese
Tribunal Member