BC Human Rights Tribunal

MacGillivary v. Parkland Refining (BC) Ltd. (No. 2), 2024 BCHRT 233

Date Issued: August 8, 2024
File: CS-002188

Indexed as: MacGillivary v. Parkland Refining (BC) Ltd. (No. 2), 2024 BCHRT 233

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:

Robert Alan MacGillivary
COMPLAINANT

AND:

Parkland Refining (BC) Ltd.
RESPONDENT

REASONS FOR DECISION
APPLICATION TO DISMISS A COMPLAINT
Section 27(1)(c)

Tribunal Member: Devyn Cousineau

Counsel for the Complainant: Menachem Freedman

Counsel for the Respondent: Robert A. Sider, KC

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I INTRODUCTION

[1] This is a decision about whether to dismiss Robert Alan MacGillivary’s human rights complaint without a hearing.

[2] Mr. MacGillivary worked as truck driver for Parkland Refining and its predecessor for nearly 30 years. Between 2017 and 2019, he was absent from work on a medical leave and receiving long-term disability benefits [LTD]. Beginning in January 2019, Mr. MacGillivary asked to return to work. He was 58 years old. Parkland determined that Mr. MacGillivary was medically unfit to return to any position because of depression, ADHD, and a “transient ischemic attack” he suffered in late 2017. To reach this conclusion, it relied on information received from the LTD provider and an Independent Medical Examination [IME]. Parkland terminated Mr. MacGillivary’s employment. Following a union grievance, the termination was substituted for a non-disciplinary suspension without pay. The outcome is the same: Mr. MacGillivary has not returned to work for Parkland.

[3] Mr. MacGillivary disputes that he was not medically fit to return to work. He says the information in the IME was fundamentally flawed and that Parkland failed to give him a meaningful opportunity to provide the medical information it needed to return to him to work. He says that Parkland failed to meet its obligations to accommodate his disabilities and, in doing so, discriminated against him based on his age and disabilities, in violation of s. 13 of the Human Rights Code.Mr. MacGillivary further alleges that Parkland discriminated against him by failing to give him important pension information while he was on a disability-related leave.

[4] Parkland asks the Tribunal to dismiss Mr. MacGillivary’s complaint because it has no reasonable prospect of success: Code,s. 27(1)(c). It argues that it is reasonably certain to prove that it took all reasonable and practical steps to accommodate Mr. MacGillivary and was justified in relying on information confirming he was not medically fit to work. It further argues that Mr. MacGillivary has no reasonable prospect of proving he was adversely impacted regarding his pension entitlements.

[5] For the reasons that follow, I deny the application to dismiss Mr. MacGillivary’s allegations about his return to work. Based on the evidence before me, I am not satisfied that Parkland is reasonably certain to prove that Mr. MacGillivary’s disabilities precluded him from safely returning to work. I grant the application to dismiss Mr. MacGillivary’s allegations about his pension entitlements. There is no reasonable prospect that Mr. MacGillivary will prove he was adversely impacted in respect of his pension.

[6] I begin with three preliminary issues: the proper name of the Respondent, Mr. MacGillivary’s objections to Parkland’s affidavit material, and Mr. MacGillivary’s application for costs.

II PRELIMINARY ISSUES

A. Name of the Respondent

[7] Mr. MacGillivary filed his complaint against “Parkland Fuel Corporation”. Parkland Fuel is a publicly traded company that supplies and markets fuel and petroleum products. It says that it has never had any legal relationship with Mr. MacGillivary.

[8] Parkland Refining (BC) Ltd. is a wholly-owned subsidiary of Parkland Fuel. In 2017, it acquired a refinery from Chevron Canada Ltd., Mr. MacGillivary’s employer. As part of this acquisition, Parkland Refining inherited the collective bargaining obligations to the union, Teamsters Local Union 213. Parkland Fuel and Parkland Refining say that Mr. MacGillivary’s employment relationship was exclusively with Parkland Refining.

[9] Parkland Fuel argues that the complaint should be dismissed because Mr. MacGillivary has no reasonable prospect of proving that he had any employment relationship with Parkland Fuel. I am not persuaded to dismiss the complaint on this basis.

[10] First, Mr. MacGillivary has pointed to evidence that: (1) executive level employees and in-house counsel for Parkland Fuel were integrally involved in the issues giving rise to the complaint, (2) the “in house medical team” which worked on Mr. MacGillivary’s file was part of Parkland Fuel, and (3) important correspondence referred to or implied that Parkland Fuel was the employer. In this situation, Parkland Fuel could be liable for its role in any discrimination that the Tribunal finds: British Columbia Human Rights Tribunal v. Schrenk, 2017 SCC 62, at para. 67

[11] Second, and importantly, dismissing the complaint would put form over substance in a way that does not further the purposes of the Code.This case is about Mr. MacGillivary’s access to his livelihood, and the stakes for him are high. Counsel is the same for Parkland Fuel and Parkland Refining. They have presented a full defence of the complaint. There is no procedural unfairness or substantive reason why the complaint should not be considered on its merits.

[12] Both parties have identified the option to change the name of the respondent to Parkland Refining. In my view, that is the most fair and efficient way of addressing this issue. It will ensure that Mr. MacGillivary’s complaint can be considered on its merits, and he has access to a remedy in the event the Tribunal finds discrimination: Code,s. 3(e). I change the name of the Respondent to Parkland Refining (BC) Ltd. Throughout the rest of this decision, I refer to the Respondent simply as “Parkland”.

B. Objections to affidavit material

[13] Mr. MacGillivary asks the Tribunal to strike portions of Parkland’s affidavit material, submitted in support of its dismissal application. It argues that those affidavits contain information protected by settlement privilege, as well as inadmissible legal opinion and irrelevant information.

[14] I begin with the issue of settlement privilege. Settlement privilege is a class privilege which “wraps a protective veil around the efforts parties make to settle their disputes by ensuring that communications made during the course of these negotiations are admissible”: Sable v. Offshore Energy Inc. v. Ameron International Corp., 2013 SCC 37 at para. 2. Its purpose is to protect and promote settlement. In the human rights context, this Tribunal has explained:

… There is a significant public interest in the promotion of the efficient and timely resolution of disputes by promoting their settlement. If parties to a human rights complaint are aware that their settlement communications could be used in support of an application to dismiss the complaint at some later date, or be used against them in some other fashion, this could have a chilling effect on their willingness to engage in settlement negotiations. For these reasons, in the context of ongoing settlement discussions, it should be assumed that the communications are privileged in the absence of some clear indication that they are made on a “with prejudice” basis.

Dar Santos v. University of British Columbia, 2003 BCHRT 73 at para. 74

[15] The test for settlement privilege is that:

a. a litigious dispute was in existence or within contemplation[1];

b. the communication was made with the express or implied intention that it would not be disclosed to the court (or tribunal) in the event negotiations failed; and

c. the purpose of the communication was to attempt to effect a settlement.

Abdul-Ahad v. Challa, 2021 BCSC 795 at para. 35, citing Sharbern Holding Inc. v Vancouver Airport Centre Ltd. , 2008 BCSC 442 at para. 70; citing J. Sopinka, S.N. Lederman & A.W. Bryant, The Law of Evidence in Canada, 2d. ed. (Toronto: Butterworths, 1999) at para. 14.207

[16] The burden of establishing privilege is on the party seeking to rely on it – here, Mr. MacGillivary. Evidence that is privileged is not admissible in Tribunal proceedings: Code, s. 27.2(2).

[17] Mr. MacGillivary objects to Parkland’s references to settlement discussions between himself, Parkland, and the union throughout the period of this complaint. Broadly, there are two categories of information he says are privileged. The first is discussions arising from Mr. MacGillivary’s September 27, 2019, email inquiring: “is it time we possibly talk about bridging my pension from June till April and… I retire then as I’m 60 April 13 ^th 2020 with no reduced pension”. In their materials, the Respondents include this email and refer to the existence of subsequent settlement discussions regarding Mr. MacGillivary’s pension, which were ultimately unsuccessful. They also include an October 8, 2019, email from Mr. MacGillivary in which he communicates that he is turning down the employer’s offer. Finally, they include internal correspondence making inquiries about Mr. MacGillivary’s pension.

[18] I am not persuaded that these impugned portions of Parkland’s affidavits disclose information protected by settlement privilege. To begin, I do not accept that Mr. MacGillivary’s initial inquiry amounts to a privileged settlement offer. There is no evidence to suggest that Mr. MacGillivary intended that this be interpreted as a confidential settlement offer. It does not invite compromise for the resolution of a potential legal dispute. Beyond that, though the affidavits do refer generally to settlement discussions between the parties, they do not disclose the substance of any of those discussions. They do not refer to any specific proposals or counterproposals or set out the positions of the parties in respect of those discussions. They do not disclose even the “hint of potential compromise or negotiation”: Bellatrix Exploration Ltd. v. Penn West Petroleum Ltd ., 2013 ABCA 10 at para. 24, cited in Paul Boone v. Dr. Kevin O’Kelly et al., 2020 ONSC 5192 at para. 20. The fact that the parties had settlement discussions, and those discussions were ultimately unsuccessful, is not privileged information.

[19] Second, Mr. MacGillivary objects to Parkland including its “without prejudice” letter dated October 22, 2019, in which it advises that his employment has been terminated and sets out an offer of a “gratuitous severance package” in exchange for a release and other terms.

[20] The fact that this letter is marked “without prejudice” is not determinative: Abdul-Ahadat paras. 38-39. What matters is “whether the negotiations took place with the intent of the parties towards a settlement of the action”: Reum Holdings Ltd. v. 0893178 BC Ltd., 2015 BCSC 2022 at para. 56.

[21] When an employer terminates a person’s employment, it is common to offer an extra payment or benefit in exchange for a release. I agree with the observations of the Superior Court of Quebec that:

In employment matters, it is common practice for employers to set out the settlement proposal in the termination letter. This does not mean that in every case there is actual or eventual litigation. On the contrary, if the retirement allowance is accepted, there will be no negotiation, no litigation and no reason to apply the settlement privilege. The initial position (or offer) of the employer in not protected. It is not evidence of an ongoing negotiation, but rather of the factual situation surrounding the termination. It is not even an invitation to negotiate, as the employer in good faith will put forward what it believes the employee is entitled to and should agree to. Only once the offer of the employer is refused will there be a potential litigation which will bring the privilege into application.

Pearlman c. Aptos Canada Inc., 2021 QCCS 557 at para. 8

[22] In this context, the words “without prejudice” are often invoked, not to communicate an intention to keep the letter confidential, but to clarify that the offer goes beyond what the employer considers to be the employee’s legal entitlements such that the letter cannot later be used as evidence of those entitlements. “Without prejudice” termination letters are often admitted as evidence in subsequent litigation, without claims of settlement privilege.

[23] Here, there is no evidence that this letter was part of the parties’ negotiations to resolve a potential legal dispute or that the employer’s intention was that it be confidential. Rather, it appears on its face to be a standard termination letter in which Parkland offered to enhance Mr. MacGillivary’s severance package in exchange for a release. I am not satisfied this letter is privileged, and I decline to strike it from the record.

[24] Finally, I am not persuaded to strike portions of Parkland’s material because they contain material that is irrelevant or legal opinion.

[25] This Tribunal has discretion to admit evidence that would not be admissible in court if it is necessary and appropriate: Code , s. 27.2. Notwithstanding the Tribunal’s flexible approach to evidence, the same dangers that courts seek to avoid in developing exclusionary rules remain applicable in Tribunal proceedings. Some information is so inherently unreliable as to have little or no probative value: Batson-Dottin v. PHSA , 2018 BCHRT 246 at para. 21.

[26] Though I have not relied on much of the impugned material to make my decision, I do not agree that it is so irrelevant that it should be struck. Further, I do not agree that the affiants’ statements about the employment relationship between Mr. MacGillivary and Parkland Refining, or Parkland’s obligations under a collective agreement, constitute legal opinions. I interpret these statements to reflect the affiant’s understanding of these issues, which is properly before me. Even accepting Mr. MacGillivary’s arguments, there is no prejudice to admitting the affidavit material. Any concerns about this evidence can be addressed as a matter of weight.

[27] The application to strike portions of the Respondents’ affidavit evidence is denied.

C. Application for costs

[28] Mr. MacGillivary applies for costs against Parkland: Code, s. 37(4). It argues that Parkland has acted improperly by breaching settlement privilege and failing to disclose highly probative evidence regarding the IME process, requiring him to incur the time and expense of a disclosure application.

[29] The Tribunal may award costs “against a party to a complaint who has engaged in improper conduct during the course of the complaint”: Code, s. 37(4). The purpose of a costs award is punitive: Terpsma v. Rimex Supply (No. 3), 2013 BCHRT 3 at para. 102. It aims to deter conduct that has a significant and detrimental impact on the integrity of the Tribunal’s process: Oger v. Whatcott (No. 7), 2019 BCHRT 58 at para. 246.

[30] Given my conclusion about settlement privilege above, Mr. MacGillivary’s first argument is not a basis to award costs.

[31] I am also not persuaded that Parkland has acted improperly regarding its disclosure obligations. There is no dispute that Parkland did not initially disclose relevant records regarding its request for an IME. It took the position that those records were not in its possession or control because they were held by a third party to the complaint, albeit one which Parkland refers to as its “in-house medical department”. Mr. MacGillivary applied for disclosure of these documents, and the Tribunal granted his application. It determined that the documents appeared to be in Parkland’s control. It ordered Parkland to obtain them, failing which it said it would issue an order for third party disclosure. Parkland then obtained and disclosed the documents.

[32] I appreciate, and agree, that it is unfortunate that Mr. MacGillivary had to incur legal expenses to file an application and obtain these relevant documents. However, I cannot conclude that Parkland’s conduct here was improper. It took a position regarding the documents that was ultimately unsuccessful. In most applications, that is the case for at least one party. Mr. MacGillivary has not referred me to any similar situations where the Tribunal has concluded that such conduct rises to a level of impropriety that warrants the punitive sanction of costs. On balance, I am not persuaded that it does.

[33] I dismiss the application for costs.

[34] I turn now to Parkland’s dismissal application, beginning with the background giving rise to the complaint.

III BACKGROUND

[35] This background is taken from the materials filed by the parties. I make no findings of fact.

[36] Mr. MacGillivary has worked for Parkland or its predecessor since 1989 as a unionized truck driver. During the period of the complaint, he was in his late 50s.

[37] Parkland is a petrochemical refinery, comprised of a refining operation and a terminal from which refined petrochemical product is loaded and dispatched by truck. There is no dispute that Mr. MacGillivary’s work, and his work environment, are safety sensitive.

[38] Between 2017 and 2019, Mr. MacGillivary was absent from work and receiving benefits for LTD. There is very little information before me about the circumstances of that leave. It appears that the impetus for the leave was depression and fatigue.

[39] Parkland Refining acquired the refinery in 2017, while Mr. MacGillivary was on medical leave. Mr. MacGillivary says that he received “little to no information” about this change.

[40] In late 2017, Mr. MacGillivary had a “transient ischemic attack” [TIA]. According to the Canadian Council of Motor Transport Administrators Medical Standards [CMTA Standards], a TIA is a “brief episode of neurological dysfunction caused by a temporary state of reduced blood flow to the brain”. The symptoms of a TIA are similar to a stroke but are temporary. A TIA can be a warning sign that a stroke is imminent, with the highest risk in the 90 days following the attack. It appears Mr. MacGillivary’s 2017 TIA was connected with starting a new medication. In response, he stopped taking the medication and has since been assessed by an ophthalmologist and neurologist.

[41] In January 2019, Mr. MacGillivary emailed the Terminal Supervisor to advise that he would be cut off his LTD in July. He said, “I guess the chances of getting my old job or any job back are pretty slim as I have been diagnosed with complete blockage of my left carotid artery and 60% blockage on my right”. The Supervisor asked what he was going to do, and Mr. MacGillivary explained, “I would like to think I could use my various experience to apply for a position within parkland regardless of what it is”.

[42] A month later, Mr. MacGillivary followed up to say that, actually, he was fit to drive, because he was feeling “100%”. He attached the CMTA Standards setting out how a TIA affects a person’s functional ability to drive. Under those Standards, all drivers are eligible for a license following a TIA if they: complete a medical assessment that shows no residual effects; address any underlying causes; and satisfy the conditions for maintaining a license. The CMTA Standards explain:

The primary driver concern with a TIA is the risk for a [stroke] after a TIA. By definition, there are no persistent impairments associated with a TIA. The risk for a [stroke] is greatest immediately after the TIA and decreases significantly over time. Subject matter experts recommended a minimum no-driving period of two weeks, with appropriate follow-up and treatment.

[43] In May 2019, the LTD provider, Sun Life, advised Parkland that Mr. MacGillivary was permanently restricted from returning to his previous safety sensitive occupation as a driver. It did not provide any information to explain why. Parkland asked for more information, including any return-to-work forms completed by his doctor. On July 4, a disability case manager with Sun Life explained:

The most recent medical information from his treatment provider did not list any restrictions/limitations other than he has permanent restriction from driving a commercial vehicle. His doctor suggested he can work in other capacity as maintenance worker. Mr. MacGillivary was deemed to be able to return to work to other (no heavy) occupation.

Sun Life did not share any information directly from the doctor, or explain why Mr. MacGillivary was permanently restricted from driving.

[44] Based on this information, Parkland assessed whether it could accommodate Mr. MacGillivary to return to work in any capacity. It reviewed the functional capacity evaluation requirements for several positions. It concluded that any jobs Mr. MacGillivary may be qualified for were either safety sensitive or required higher levels of functional capacity than his position as a truck driver. Parkland’s Labour Relations Advisor [LR Advisor] explains: “Essentially, if the Complainant was unable to meet the requirements needed to be a professional truck driver, then he was unable to meet the higher requirements for the other positions”. On this basis, Parkland concluded that it could not accommodate Mr. MacGillivary.

[45] On July 11, Sun Life closed Mr. MacGillivary’s claim.

[46] On July 19, Mr. MacGillivary met with Parkland’s People & Culture Manager and his union representative. During that meeting, they discussed Sun Life’s determination that he was permanently restricted from driving an oil tanker truck, and Parkland’s assessment that there was no other work that he was qualified and medically fit to perform. Mr. MacGillivary disagreed with this assessment. He said that his doctor had cleared him to drive, and that he wanted to return to his position as a truck driver. Parkland says that it told Mr. MacGillivary that he would need to provide some medical evidence showing that he was medically fit to return. Mr. MacGillivary says that Parkland never explained what medical evidence it required, or asked him to obtain information from his doctors.

[47] Following this meeting, there were some messages back and forth in which the LR Advisor inquired whether Mr. MacGillivary had spoken to Sun Life for any updates or new information. Mr. MacGillivary responded that there was “no appeal process” and expressed frustration with his position: he could not return to work and he could not apply for EI. He had no income.

[48] Parkland determined that it required an IME to assess Mr. MacGillivary’s medical fitness for work. It worked with a medical clinic to identify an appropriate doctor. Before the examination, the clinic advised that the doctor wanted to “make it clear that she’s an occupational doctor, so she can’t diagnose mental health if that comes into play – she can only give an opinion at best”. This would become important later, because her report focused heavily on Mr. MacGillivary’s mental health.

[49] Mr. MacGillivary attended the IME on October 1, and the doctor released her report on October 14. In her report, the doctor cited and applied the CMTA Standards and the Commercial Driver Medical Certification Guidelines [CDME Guidelines]. She concluded that Mr. Macgillivary had three medical conditions which, in her opinion, made him unfit to drive a commercial vehicle. The conditions were:

a. Mr. MacGillivary’s TIA in late 2017. Under the CDME Guidelines, a person can drive if one year has passed since the last TIA episode, ophthalmological and neuro-psychological testing is normal, and the driver has been examined by a neurologist. The CMTA Standards require drivers to have no residual symptoms and to have addressed underlying causes. The doctor acknowledged that Mr. MacGillivary had been asymptomatic since the TIA in 2017, and had been assessed by his neurologist, apparently without concerns about his ability to drive. The doctor concluded, however, that the TIA made Mr. MacGillivary unfit to work because the neurologist had not assessed him “from the occupational point of view”, and Mr. MacGillivary had a “higher than average risk of stroke”, which she assessed between 6.4% – 17.1%.

b. Depression. Under the CDME Guidelines, a person with a history of a major mood disorder is required to have a minimum of six months symptom-free after major depression. The doctor acknowledged Mr. MacGillivary’s symptoms of depression had substantially improved, were stable and under treatment with his family doctor, and Mr. MacGillivary had “enough insight to stop driving if his symptoms worsen”. However, she concluded based on the results of “a brief self-report scale” that he still had some “residual symptoms of depression” and, therefore, was “not fit to be in a safety sensitive position yet”.

c. ADHD. The doctor says that the CDME Guidelines require drivers to have ADHD diagnoses confirmed by a mental health professional, who can confirm that the driver is “safe and stable under an effective treatment”. It is unclear whether any doctor has diagnosed Mr. MacGillivary with ADHD, though he did tell the IME doctor he had long suspected that he had it. The doctor concluded that, because Mr. MacGillivary had not been “properly assessed by a specialist” and was not being treated for ADHD, he did not meet safety standards for driving.

[50] The doctor concluded that, based these conditions, Mr. MacGillivary was not fit to work in a “safety sensitive position”. She identified medical restrictions as follows:

a. No requirements to work at high elevations such as ladders or near bodies of water.

b. It is preferable that Mr. MacGillivary avoids work in environments where he is left alone for a prolonged period of time due to his increased risk of stroke, until after he is cleared by a neurologist.

Finally, the doctor recommended some tools to help Mr. MacGillivary complete “complex or long-term projects”, which appear to be related to her perception that he may have ADHD.

[51] On review of the IME, Parkland concluded that it could not accommodate Mr. MacGillivary’s return to work. On October 19, Parkland wrote to Mr. MacGillivary to inform him that he had “not successfully passed the IME” and that his medical conditions relevant to “TIA, Major Depressive Disorder, [and] ADHD” did not meet safety standards for a truck driver. Parkland did not provide Mr. MacGillivary with a copy of the IME. He did not see that report until it was released to him through a Freedom of Information Request the following year.

[52] On October 22, Mr. MacGillivary met with the LR Advisor, People & Culture Manager, and his union representative. Parkland explained that, due to the findings in the IME, it had determined he was medically unfit to return to his previous occupation as a truck driver, and there were no other positions for him to return to. Mr. MacGillivary indicated that he did not agree with the findings in the IME and expressed that he was fit to work as a truck driver. The People & Culture Manager says that Mr. MacGillivary’s behaviour in this meeting, which included expressing thoughts of self-harm, raised concerns about his mental health and ability to return to work. At this meeting, Parkland terminated Mr. MacGillivary’s employment.

[53] In November, the union grieved Mr. MacGillivary’s termination. In response to the grievance, Parkland agreed to rescind his termination and place him instead on a non-disciplinary unpaid suspension “until such time as you are deemed fit to work in a safety sensitive workplace”. At the same time, it advised that Mr. MacGillivary would not be allowed to access its worksite, even if he was working as a driver for another company.

[54] In March 2020, the union filed two more grievances on Mr. MacGillivary’s behalf: one grieving the non-disciplinary suspension, and the other alleging that Parkland had violated the collective agreement by failing to advise Mr. MacGillivary of his right to obtain a medical opinion from his own doctor. Parkland rejected both grievances for being out of time. The union has not pursued them.

[55] In the meantime, in February 2020, Mr. MacGillivary passed his RoadSafety BC Class 1 Driver’s Medical Examination. Mr. MacGillivary provided Parkland with the results of this examination in March 2021. Parkland did not respond. Since November 2020, Mr. MacGillivary has worked in several jobs driving commercial vehicles.

[56] On August 5, 2020, Mr. MacGillivary filed this human rights complaint. He originally filed against both Parkland and the union. He later resolved his complaint with the union and withdrew it. The Tribunal denied Parkland’s application to add the union back into the complaint as a Respondent: MacGillivary v. Parkland Fuel Corporation, 2021 BCHRT 86.

IV DECISION

[57] Section 27(1) of the Codegives the Tribunal a gatekeeping power to remove complaints which do not warrant the time and expense of a hearing. In this application, Parkland argues that Mr. MacGillivary has no reasonable prospect of proving his complaint and asks that it be dismissed under s. 27(1)(c) of the Code.The onus is on Parkland to establish the basis for dismissal.

[58] 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. This is important in this case because, in my view, there are gaps in the evidence.

[59] 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 at para. 27.

[60] 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.

[61] I turn now to the two allegations in Mr. MacGillivary’s complaint: (1) the refusal to return him to work; and (2) the pension allegations.

A. Return to work

[62] The parties do not dispute that Mr. MacGillivary’s disabilities – real or perceived – were the reason that Parkland would not return him to work. At a hearing, that would be sufficient to establish the elements of his case: Moore v. British Columbia (Education), 2012 SCC 61 at para. 33.

[63] This complaint turns on whether Parkland can justify its decision as a bona fideoccupational requirement by proving:

a. Valid purpose: it was applying a workplace standard adopted for a purpose rationally connected to the performance of the employee’s job or function.

b. Good faith: it adopted the workplace standard in an honest and good faith belief that it was necessary to fulfil its valid purpose.

c. Reasonable necessity and accommodation: the standard was reasonably necessary to accomplish its purpose and Parkland discharged its duty to accommodate Mr. MacGillivary 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; Ciliberto v. Tree Island Industries Ltd., 2024 BCHRT 87 at para. 27

Mr. MacGillivary’s complaint has no reasonable prospect of success if Parkland is reasonably certain to prove the elements of this defence: Purdy v. Douglas College and others , 2016 BCHRT 117 at para. 50.

[64] There is no dispute at this stage that Parkland is reasonably certain to prove the first two elements of its defence. Parkland describes its workplace standard as a requirement that employees be “medically fit to work in a safety sensitive environment”. Given the nature of the work, the Tribunal is reasonably certain to conclude that this is a legitimate standard, adopted in good faith, which is rationally connected to the job.

[65] However, I am not satisfied that Parkland is reasonably certain to prove the third element of its defence: that it discharged its duty to accommodate Mr. MacGillivary.

[66] The purpose of an employer’s duty to accommodate is “to ensure that an employee who is able to work can do so” and that “persons who are otherwise fit to work are not unfairly excluded where working conditions can be adjusted without undue hardship”: Hydro-Québec 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. 14. This purpose informs the scope and content of the duty, expressed through the interrelated concepts of reasonableness and undue hardship: Québec (Comm. des norms, de l’équité, de la santé et de la sécurité du travail) v. Caron, 2018 SCC 3 at para. 25.

[67] The concept of “reasonable accommodation” requires employers to take reasonable and practical steps to assess whether working conditions can be changed to allow the employee to do their work and, if not, whether there is other work that they could do: Hydro-Québec at para. 17. It is an exercise in common sense and flexibility, in which both the process and substance of the accommodation are relevant: Meiorin; Kelly v. University of British Columbia (No. 3), 2012 BCHRT 32at para. 527, upheld inUniversity of British Columbia v. Kelly, 2016 BCCA 271. Accommodation may include modifying working hours, changing or lightening duties, or authorizing staff transfers: Hydro-Québec at para. 17. However, as the term “reasonable” implies, this duty is not unlimited.

[68] The concept of “undue hardship” sets the limit for the lengths that employers are required to go to, and the point at which further efforts become unreasonable. Inherent in the concept is the recognition that there may be some hardship in accommodating a person’s disability. Accommodation is not always easy, convenient, or cost-effective. Employers are required to consider options that may result in some hardship: Stewart v. Elk Valley Coal Corp., 2017 SCC 30at para. 128 (per Gascon J, dissenting but not on this point); Council of Canadians with Disabilities v. VIA Rail Canada Inc., 2007 SCC 15 at para. 122. It is only when the hardship becomes “undue” that the duty ends.

[69] What is reasonable, and what hardship is undue, will vary “according to the characteristics of each enterprise, the specific needs of each employee, and the specific circumstances in which the decision is to be made”: McGill University Health Centre (Montreal General Hospital) v. Syndicat des employés de l’Hôpital général de Montréal, 2007 SCC 4 at para. 22. The point of undue hardship is reached “when reasonable means of accommodation are exhausted and only unreasonable or impractical options for accommodation remain”: VIA Rail at para. 130.

[70] The duty to accommodate does not oblige employers to create or assign work that is not productive for their enterprise: Sahota v. British Columbia (Workers’ Compensation Board), 2019 BCHRT 104 at para. 171; Kelly v. Saputo Dairy Products Canada and another, 2017 BCHRT 225at para. 162. This principle flows logically from the purpose of accommodation, which is not to fundamentally change the employment contract, but to ensure that employers create conditions that allow employees who are able to work to do so. Where an employee cannot work because of a disability, the employer’s duty to accommodate them ends “where the employee is no longer able to fulfill the basic obligations associated with the employment relationship for the foreseeable future”: Hydro-Québec at para. 19. This is an assessment made based on the entire history of the matter: Hydro-Québec at para. 21.

[71] Each of Parkland, Mr. MacGillivary, and the union had obligations in the accommodation process. As the employer, Parkland was responsible for collecting relevant information and identifying options to accommodate Mr. MacGillivary . That includes “information about the employee’s medical condition, prognosis for recovery, ability to perform job duties, and capabilities for alternate work”: Gordy v. Painter’s Lodge (No. 2), 2004 BCHRT 225, at para. 84. Mr. MacGillivary’s obligation was to facilitate the search for accommodation by bringing forward relevant information and accepting any reasonable proposals. Finally, the union was required to work cooperatively to facilitate the accommodation: Central Okanagan School District No. 23 v. Renaud, [1992] 2 SCR 970 [Renaud].

[72] I begin by acknowledging Parkland’s evidence that it took positive steps in the accommodation process, including by seeking medical information from Sun Life and arranging for an IME. I also acknowledge that this information concluded that Mr. MacGillivary was medically unfit to return to work as a truck driver. Mr. MacGillivary had the right under the collective agreement to provide additional medical information and – aside from the RoadSafetyBC examination – has not done so. At a hearing, it will be open to the Tribunal to conclude that it was reasonable for Parkland to rely on the medical information it had and that, in doing so, it discharged its obligations to Mr. MacGillivary: Dedic v. Coast Mountain Bus Company, 2016 BCHRT 28 at para. 62.

[73] However, at this preliminary stage, I am not reasonably certain of this outcome. It is not enough to simply say that a person has disabilities, and their job is safety sensitive; the employer is required to undertake an individualized assessment to determine whether a person with disabilities can work safely: British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights), [1999] 3 SCR 868[Grismer] at paras. 42-43; Vancouver Drydock Company Ltd. v Marine Workers & Boilermakers Industrial Union Ltd. (December 9, 2020, unreported) (McPhillips). Accepting that Mr. MacGillivary’s job and worksite were safety sensitive, there is relatively limited evidence to explain how Mr. MacGillivary’s disabilities impacted his ability to work safely as a driver or in any of Parkland’s other jobs.

[74] Parkland says that it relied on the decision of Sun Life and the findings of the IME to conclude that Mr. MacGillivary could not work safely in any position because of his TIA, depression, and (potential) ADHD. I am not reasonably certain that the Tribunal will conclude that this conclusion, or the process by which it was reached, was reasonable.

[75] I begin with the information from Sun Life. Based on the evidence before me, the employer had no information to understand or interpret Sun Life’s conclusion that Mr. MacGillivary was unable to return to his previous occupation. Sun Life did not identify Mr. MacGillivary’s disability-related barriers or limitations other than to say he could not work in his previous occupation. It gave no information about his ability to work in other positions. Despite Parkland’s request and Mr. MacGillivary’s authorization, it did not provide Parkland with any of the medical information that its conclusion was based on. Nevertheless, relying only on Sun Life’s brief report, the Terminal Supervisor concluded at a very early stage that Parkland could not accommodate Mr. MacGillivary in any position.

[76] At this point in the process, Mr. MacGillivary was telling Parkland that he could return to work, and that his doctor had “cleared” him. He provided the CMTA Standards for driving after a TIA, and said that he met them. In this situation, it was incumbent on Parkland to give Mr. MacGillivary a meaningful opportunity to provide medical information to support his return to work: Datt v. McDonalds Restaurants of Canada Ltd, 2007 BCHRT 324 at para. 225. Here, Mr. MacGillivary has pointed to evidence capable of proving that it did not.

[77] Mr. MacGillivary says that Parkland never asked him directly for medical information and did not explain to him what medical evidence he needed to provide in order to return to work. Parkland did not give him a questionnaire or form for his doctor to complete. While there is evidence before me that Parkland asked Mr. MacGillivary for an “update” regarding Sun Life and met with him about his return to work, this falls short of establishing with reasonable certainty that Parkland told Mr. MacGillivary about his options to bring forward medical evidence from his treating practitioners, and what that evidence needed to address. In June 2019, a union representative forwarded the LR Advisor an email from Mr. MacGillivary, in which Mr. MacGillivary expressed he was at a loss about how to bring forward medical information. He wrote:

I have reached out to Sun life twice now asking them to resend my medical information to Parkland, as I do not have access to my doctors reports I am lost on what more I can do as all I have is the signed request to give Sun Life permission to send any necessary information to Parkland.

It is not clear whether or how Parkland or the union responded to this question, to explain the information that Parkland needed and how Mr. MacGillivary could obtain it. In this situation, Mr. MacGillivary’s argument that Parkland failed to clearly communicate about the information it needed is beyond a realm of conjecture.

[78] Rather than seek medical information from Mr. MacGillivary or his treating practitioners, Parkland opted to proceed directly to an IME. It then relied on the conclusions of the IME to terminate Mr. MacGillivary’s employment. At a hearing, the Tribunal may conclude this was reasonable and satisfied Parkland’s obligations in the accommodation process. However, Mr. MacGillivary has pointed to issues with both the process and outcome that, in my view, raise his claim above conjecture and warrant a hearing.

[79] First, before the examination was completed, the doctor advised Parkland that she could not diagnose mental health conditions but could “give opinions”. However, in her examination, the doctor used diagnostic tools and drew conclusions about Mr. MacGillivary’s mental health from the results, including that he continued to have symptoms of depression and may have ADHD. This may be a basis on which the Tribunal could conclude it was unreasonable for Parkland to rely on her conclusions regarding Mr. MacGillivary’s mental health.

[80] Second, Mr. MacGillivary argues that the doctor’s conclusions in the IME are “fundamentally flawed”, such that Parkland did not discharge its duties by relying on them wholesale to terminate Mr. MacGillivary’s employment. In my view, it would be open to the Tribunal to agree. At a hearing, Mr. MacGillivary could reasonably challenge Parkland’s conclusions (in reliance on the IME) that:

a. having residual symptoms of depression, under treatment by a family doctor, rendered Mr. MacGillivary medically unfit to work in any position.

b. the possibility that Mr. MacGillivary may have ADHD renders him medically unfit to work, in circumstances where he said he has had the relevant symptoms his whole life and had been driving for the company for nearly 30 years, seemingly without issue. In that regard, I do not understand Parkland to argue that it is a bona fideoccupational requirement for all truck drivers to be diagnosed and treated regarding the possibility of ADHD. If that is their position, there is no evidence before me to explain or support such a proposition.

c. Mr. MacGillivary did not meet fitness standards to drive following his TIA in 2017.

[81] In saying this, I agree with Parkland that it is not this Tribunal’s role to enforce standards of care for doctors, or second guess their expert opinions: Crooks v. BC Liquor Distribution Branch,2021 BCHRT 132 at para. 63. However, in this human rights complaint the burden is on Parkland to justify its assessment that Mr. MacGillivary could not work safely because of his disabilities. It relies on the IME to do this, and given the issues I’ve identified above, I am not reasonably certain that the IME alone will justify the outcome in this case.

[82] Third, Parkland did not provide Mr. MacGillivary with a copy of the IME, which he says would have allowed him to correct or respond to the parts he disagreed with. At the same time, there is evidence to support Mr. MacGillivary’s assertion that the employer overstated its results by telling him that the doctor found that he did not meet CMTA Standards and CDME Guidelines for his truck driver position. Mr. MacGillivary points to contrary evidence that:

a. He met standards regarding his TIA, by being symptom-free for over a year and being assessed and “cleared” by his neurologist.

b. He reported no symptoms of depression in the six months prior to the assessment.

c. The employer told Mr. MacGillivary that the doctor had concluded his ADHD made him unfit to drive, when in fact she concluded that he needed to have the diagnosis confirmed and treated.

[83] Even accepting the results of the IME, there is relatively little evidence about Parkland’s efforts to consider other work that Mr. MacGillivary may have been able to perform. The IME doctor did not consider non-driving jobs. Mr. MacGillivary says that Parkland never asked him about his other skills and abilities or spoke to him about other options. Rather, as I have said, Parkland’s evidence is that it concluded that if Mr. MacGillivary was not well enough to drive, then he was not well enough to perform the other jobs it had available. While this argument could succeed at a hearing, I am not reasonably certain that it will.

[84] Finally, I note there is some evidence to support Mr. MacGillivary’s argument that the employer was not engaging in the accommodation process fully in good faith. Among other things, he points to an internal email from June 2019, in which the Terminal Supervisor indicates that he wanted to hire a new person for the “Terminal Operator” position, but did not want the position to go to Mr. MacGillivary. He asked: “Do we need to delay hiring an Operator until the [return to work] case is worked out?”. At a hearing, it will be open to Mr. MacGillivary to challenge Parkland’s assertion that it was engaging in his accommodation in good faith.

[85] I distinguish Rush v. Richmond (City),2011 BCHRT 244, relied on by Parkland. In that case, Ms. Rush was off work for three years on sick leave. During that time, she was diagnosed with PTSD as a direct result of traumatic exposures at work, with “reactive depression and anxiety secondary to workplace stressors”. Her disability-related barriers to returning to work were set out in several assessments from her treating psychologists, psychiatrist, and family doctor, and included triggers specific to the workplace. The employer explained to Ms. Rush exactly what kind of medical evidence it required to consider her accommodation, including that it must set out the “precise nature and extent of the disability, as well as any physical and/or mental limitations”: para. 61. Two years into the accommodation process, Ms. Rush presented the employer with a letter from her psychologist identifying conditions for her return to work. The employer did not accept the letter on the basis that it was not from a psychiatrist, did not identify the nature and extent of Ms. Rush’s disability, was based on an inaccurate understanding of the work environment, and did not reconcile contradictory medical evidence – including from the same psychologist a year prior: para. 76. The Tribunal found that, in all the circumstances, there was no reasonable prospect that Ms. Rush could prove this was unreasonable: para. 105.

[86] The circumstances are not the same here. In Rush,the evidence was clear about Ms. Rush’s disabilities and how they impacted her ability to return to work. In this case, Parkland did not have nearly the same amount of medical information as the employer in Rush before concluding that accommodation was not possible. The evidence before me raises legitimate questions about whether or how Mr. MacGillivary’s disabilities precluded him from returning to work. Further, unlike in Rush, the evidence is disputed about whether Parkland told Mr. MacGillivary clearly what it required from him, or how to obtain it.

[87] I acknowledge that Mr. MacGillivary was represented by a union and arguably the union should have been helping him to advocate for himself and bring forward the necessary medical information about his fitness for work. However, Mr. MacGillivary settled his complaint against the union and there is no evidence before me about how it supported him in the accommodation process. In any event, the presence of a union cannot absolve an employer of its obligations to collect the necessary information for an accommodation: Renaud at p. 992.

[88] Finally, Parkland argues that Mr. MacGillivary’s allegation of discrimination based on age should be dismissed because there are no facts to support it. Mr. MacGillivary has not addressed this argument in his response. Though I agree with Parkland that the evidence and allegations about age discrimination are not entirely clear, I am not persuaded to dismiss age as a ground in this complaint. First, there is no efficiency to be gained: Byelkova v. Fraser Health Authority, 2021 BCSC 1312 at para. 115. Second, the Tribunal takes an intersectional approach to discrimination. At a hearing, the intersection between Mr. MacGillivary’s age and disabilities may be more fleshed out, such that the Tribunal will want to address it. There is no prejudice to Parkland or the process in allowing the complaint to proceed based on age.

[89] In sum, I am not persuaded to dismiss Mr. MacGillivary’s allegations regarding his return to work. This is not a decision that his complaint will be successful. It is just a decision that Mr. MacGillivary has raised his allegations above a level of conjecture and they warrant a hearing and decision on their merits. This part of Parkland’s application is denied.

B. Pension allegations

[90] To prove his pension-related allegations at a hearing, Mr. MacGillivary must prove that he was adversely impacted in respect of his pension, and his disabilities were a factor in that adverse impact: Moore at para. 33.

[91] Mr. MacGillivary argues that Parkland failed to provide him with information about how to contribute to his pension during his medical leave and, as a result, the value of his pension is less than what it would have been.

[92] I am persuaded that this allegation has no reasonable prospect of success. There is no evidence capable of proving that Parkland did or omitted to do anything that adversely impacted Mr. MacGillivary’s pension entitlements. Even accepting that he did not receive any communication from Parkland about the pension, there is no evidence that this cost him any opportunities or affected his pension in any way.

[93] Rather, the undisputed evidence before me is that Mr. MacGillivary was enrolled in Chevron’s defined benefit pension plan. Before the acquisition, Chevron terminated the defined benefit pension plan and gave employees the option to join its defined contribution pension plan. That plan was based solely on employer contributions, which were based on employee pensionable earnings. Mr. MacGillivary did not participate in the defined contribution plan.

[94] When Parkland acquired Chevron, it created a defined contribution plan that mirrored the Chevron plan. Employees who had previously only contributed to the Chevron defined benefit plan received a higher defined contribution to the Parkland plan. Mr. MacGillivary is eligible for these higher contributions, but has never worked for Parkland and so has no pensionable earnings. On that basis, he has never been eligible for employer contributions to the plan.

[95] Both the Chevron and Parkland plans were based only on employer contributions. There is no evidence that Mr. MacGillivary could have made contributions or lost any opportunity to increase the value of his pension. To the extent that he did lose value in his pension, it appears that flowed from the fact that he was not working. If the Tribunal ultimately finds that the failure to return him to work was discriminatory, it is open to him to seek compensation for this loss.

[96] The allegation that Parkland discriminated against Mr. MacGillivary regarding his pension is dismissed.

V CONCLUSION

[97] The application to dismiss Mr. MacGillivary’s allegation about his pension is allowed. That part of the complaint is dismissed under s. 27(1)(c) of the Code.

[98] The application to dismiss the remainder of Mr. MacGillivary’s complaint is denied. The case manager will contact the parties to schedule a hearing.

Devyn Cousineau

Vice Chair