Ferreira v. RONA Inc. dba RONA Home Center (Williams Lake) and others, 2024 BCHRT 238
Date Issued: August 14, 2024
File(s): CS-005183
Indexed as: Ferreira v. RONA Inc. dba RONA Home Center (Williams Lake) and others, 2024 BCHRT 238
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:
Henrique Ferreira
COMPLAINANT
AND:
RONA Inc. dba RONA Home Center (Williams Lake) and Greg Morry and Randy Gilkinson
RESPONDENTS
REASONS FOR DECISION
APPLICATION TO DISMISS A COMPLAINT
Section 27(1)(c)
Tribunal Member: Laila Said Alam
On their own behalf: Henrique Ferreira
Counsel for the Respondent: Victoria Merritt
I INTRODUCTION
[1] Henrique “Rick” Ferreira says he was discriminated against in employment contrary to s. 13 of the Human Rights Code. Specifically, he says RONA Inc. dba RONA Home Center (Williams Lake), Greg Morry, and Randy Gilkinson [together, Respondents] demoted him while he was on medical leave, posted his position as a permanent opening while he was on leave, and shared the demotion with customers, other staff, and members of the public, before notifying him.
[2] The Respondents deny discriminating against Mr. Ferreira. They deny demoting him. They apply to dismiss the complaint under s. 27(1)(c) of the Code because they say that there is no reasonable prospect that Mr. Ferreira will prove that he experienced any adverse impacts in his employment, and, to the extent an adverse impact may be found, that there is any connection between his physical disabilities and any adverse impact. They also say that they are reasonably certain to establish a defense at a hearing. Lastly, they seek to dismiss the complaint against the individual respondents under s. 27(1)(d)(ii) because proceeding against them would not further the purposes of the Code .
[3] I find that I can efficiently decide this application in its entirety under s. 27(1)(c). The issues I need to consider are:
a. whether Mr. Ferreira has taken his allegation that he was adversely impacted in employment out of the realm of conjecture; and,
b. whether Mr. Ferreira is reasonably certain to prove a connection between the adverse impacts he alleges and his disability.
[4] For the following reasons, I find that Mr. Ferreira has not taken his complaint out of the realm of conjecture, and I dismiss the complaint in its entirety. 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.
II BACKGROUND
[5] RONA is a home improvement company that supplies products and provides support to its customers for building and renovation projects. RONA operates and owns a store in Williams Lake.
[6] RONA Williams Lake has approximately 28 employees, who are distributed between various departments. Cash and Front End Sales associates report to the Assistant Store Manager, while associates working in Yard, Delivery, and Contract Sales report to the Department Manager.
[7] Since 2019, C.L. has been the Assistant Store Manager, and Randy Gilkinson has been the Department Manager. Greg Morry has been the Store Manager since 2015. He is responsible for all store operations and staffing decisions.
[8] Mr. Ferreira was an employee at RONA Williams Lake for approximately 25 years. At the time of filing this complaint, Mr. Ferreira worked as a Sales Specialist in the Contract Sales Department. Mr. Ferreira was a valued employee who excelled in sales. His supervisor was Mr. Gilkinson.
[9] The parties agree that there were morale issues in the store, stemming from interpersonal problems between staff, including Mr. Ferreira, and his supervisor.
[10] On July 31, 2020, Mr. Ferreira went on a scheduled medical leave.
[11] While on medical leave, Mr. Ferreira learned that his supervisor told other staff, customers, and members of the public that Mr. Ferreira had been demoted and would no longer work in Contract Sales. This was Mr. Ferreira’s first time learning that the Respondents intended to make changes to his employment upon his return to work. He was startled by this news. Mr. Ferreira contacted a colleague and confirmed what he had heard. He says the colleague said that the supervisor, “was telling anyone that would listen.”
[12] Approximately three weeks before returning to work, the Store Manager contacted Mr. Ferreira to discuss transferring him to the Front End Sales department.
[13] Mr. Ferreira commenced a return-to-work plan on or around April 19, 2021. The return-to-work plan mandated that Mr. Ferreira perform sedentary duties, only, at reduced hours and workdays, which were to gradually increase. Mr. Ferreira was cleared to return to his usual full-time duties on or around June 21, 2021, without any additional restrictions.
[14] While Mr. Ferreira was on medical leave, and early into his return to work plan, the Respondents posted two entry-level positions. On April 6, 2021, the Respondents posted an opening for a “Contract Sales Team Member.” On June 29, 2021, the Respondents posted an opening for a “Sales Team Member.”
[15] On July 20, 2021, the Respondents formally notified Mr. Ferreira that he was being transferred from the Contract Sales department to Front End Sales, starting on September 20, 2021. He would no longer be reporting to Mr. Gilkinson.
[16] Mr. Ferreira remained a Sales Specialist. The transfer did not impact Mr. Ferreira’s rate of pay, seniority, status, or total hours worked each week, as compared to his employment prior to his medical leave. The transfer impacted Mr. Ferreira’s work schedule. The parties dispute whether it impacted Mr. Ferreira’s work duties or status.
[17] On September 26, 2021, Mr. Ferreira raised his concerns with the Respondents about the transfer. On October 5, 2021, Mr. Ferreira, the Assistant Store Manager, and Store Manager met to discuss his concerns. The employer captured the meeting discussions in a post-meeting form.
[18] Mr. Ferreira expressed that the new, rotating schedule would be difficult for him and his wife to manage considering their rural location, his wife’s work schedule, and the shared use of their vehicle. The parties decided that Mr. Ferreira’s work schedule would be changed to a set schedule, effective October 12, 2021.
[19] In the form, it says Mr. Ferreira also expressed that he was unhappy with the nature of the new job duties, which mostly entailed front counter sales and some training of new employees. He felt these duties constituted a demotion. The Respondents assured him it was not a demotion. They told him that, “As one of the most senior associates, […] his knowledge is extensive and would be a great asset to the front end associates.”
[20] On December 14, 2021, Mr. Ferreira filed a complaint with Human Resources. He alleged workplace misconduct against his supervisors. He said they breached privacy protocols by discussing Mr. Ferreira’s pending transfer to other staff members, prior to Mr. Ferreira being informed of the decision, and prior to him returning to work from his medical leave.
[21] On February 3, 2022, a Human Resource representative wrote to Mr. Ferreira to report that their investigation into his workplace misconduct complaint against his supervisors had been completed. They determined that his supervisors’ actions violated store policy, and that they had been reprimanded.
[22] On February 4, 2022, Mr. Ferreira emailed his concerns about his new role, writing again that he was unhappy with the change. He expressed his belief that he was removed from his previous department, “solely because [the supervisor] had an issue with me. I am the one that suffers form the misconduct of my Managers.” He wrote, “my issue is that I have lost my weekends off through no fault of my own. The way I was removed constitutes a constructive dismissal. I feel as though I was demoted, and I am reminded of this every time a customer asks me why I am not at the [Contract Sales] counter anymore. I just want my weekends back.”
[23] On March 25, 2022, Mr. Ferreira resigned from his employment. His last day of work was April 8, 2022.
III DECISION
A. Section 27(1)(c) – No reasonable prospect of success
[24] The Respondents apply to dismiss Mr. Ferreira’s 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.
[25] Section 27(1)(c) is part of the Tribunal’s gate-keeping function. It allows the Tribunal to remove complaints which do not warrant the time and expense of a hearing.
[26] 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.
[27] 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.
[28] 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.
[29] To prove his complaint at a hearing, Mr. Ferreira will have to prove that he has a characteristic protected by the Code, he was adversely impacted in employment, and his protected characteristic was a factor in the adverse impact: Moore v. British Columbia (Education), 2012 SCC 61 at para. 33. If he does that, the burden would shift to the Respondents to justify the impact. If the impact is justified, there is no discrimination.
[30] The Respondents say that Mr. Ferreira has no reasonable prospect of proving that he was adversely impacted in employment and that the adverse impacts that he alleges are connected to his disability.
[31] Mr. Ferreira’s allegation that he was demoted remains speculative. The primary conflict in the evidence of this complaint relates to Mr. Ferreira’s work before and after medical leave, and whether it constituted a demotion. The Respondents say, and Mr. Ferreira does not dispute, that there were no changes to his title, rate of pay, seniority, or total hours worked each week. The dispute appears to lie in Mr. Ferreira’s job duties and changed hours, and whether the duties were similar in nature or menial compared to his duties prior to medical leave. The Respondents say his duties did not change after the transfer. Mr. Ferreira says that while his new role allowed him to do some staff training, he mostly did front counter sales. He also had to work Saturdays.
[32] As stated in Vollans v. YMCA Metro Vancouver, 2019 BCHRT 49 at 67 (citing McBride v. Orca Sand & Gravel and others (No. 2) , 2010 BCHRT 190 at paras. 131-133):
Employers often organize work in ways that employees may not like. That in and of itself does not amount to an adverse treatment within the meaning of the Code.
[33] The Respondents and Mr. Ferreira addressed his concerns in his schedule soon after he raised them. They mutually agreed that his work hours would be set hours, adjusted to overlap closely with his wife’s. His schedule included working on Saturday, but he has not articulated how, in these circumstances, this rises to the level of adverse impact as intended by the Code.
[34] Other than his schedule change, Mr. Ferreira does not point to how the Sales Specialist role was substantially different before and after the transfer. Put another way, I do not have sufficient information to consider how the Sales Specialist position in one department is substantially different from another department within the same store and, if it is, how that amounts to an adverse impact.
[35] There is insufficient information to find that Mr. Ferreira has taken this element of the complaint out of the realm of conjecture.
[36] Even if, at a hearing, the Tribunal found that the transfer constituted a demotion and adverse impact in employment, I am persuaded there is no reasonable prospect that the Tribunal would find that the change was related to his disability.
[37] I understand Mr. Ferreira to rely on 3 things to establish a connection between his medical leave and the transfer: his supervisor telling staff, customers, and members of the public that Mr. Ferreira was being demoted, the language in the employment evaluation, and the timing of the decision to transfer him.
[38] Viewed contextually, I am not convinced these allegations have been taken out of the realm of conjecture. There is insufficient evidence before me on this application to support an inference that it is more than mere speculation that Mr. Ferreira’s medical leave was a factor in his transfer.
[39] It is not in dispute that Mr. Ferreira’s supervisor had interpersonal issues with Mr. Ferreira. RONA investigation substantiated Mr. Ferreira’s complaint that the supervisor breached the store’s privacy protocols when he talked about Mr. Ferreira’s transfer before Mr. Ferreira had been informed of the transfer or had returned from medical leave. I accept, without finding, that the supervisor shared the news of the transfer with animus toward Mr. Ferreira, told “anyone that would listen,” and may have disparagingly referred to Mr. Ferreira’s transfer as a demotion.
[40] I find it significant that Mr. Ferreira emailed the Human Resources representative to say, “[the supervisor] hasn’t bothered me since I have been back but [the Store Manager’s] & [Assistant Store Manager’s] attitudes towards me have been better. I almost don’t dread coming to work anymore.” On the materials before me, there is no reasonable prospect that Mr. Ferreira will prove that the interpersonal issues amongst staff, including the supervisor, was not the sole reason for transferring him and having him report to a new supervisor. It is speculative to suggest that Mr. Ferreira’s medical leave was a factor in the interpersonal issues he had with his supervisor.
[41] I now turn to the 2020 employment evaluation that Mr. Ferreria submitted. He says the contents connect his disability with his demotion. The excerpt before me says:
[The supervisor]: 2020 was not [Mr. Ferreira’s] year with the delays in having his surgery to the error that surgery he was not here 100 percent. The hope is that upon his return we can work to get him back on track. We will discuss how things have developed and perhaps a change is required as we have to have the right people working in departments to improve our business.
[Store Manager]: I agree. I think [Mr. Ferreira] could be a valuable asset to our team if in the right position.
[42] In the materials, Mr. Ferreira outlines the complications with his health, diagnosis, and surgery, which all required him to take time off work. The supervisor and Store Manager explain that their comments about his surgery and related complications were observations, and not a critique of Mr. Ferreira’s work performance. I agree, that is how they appear on the face of the evaluation. I have no further context that would persuade me that the comments in the evaluation could be a basis to infer Mr. Ferreira’s later transfer was connected to his health issues or medical leave. I read it as it is before me and find that this evidence does not take Mr. Ferreira’s allegation that the transfer was connected to his disability out of the realm of conjecture.
[43] I must also consider the Respondents began contemplating Mr. Ferreira’s transfer while he was on medical leave. In some cases, the timing of an employer’s decision that allegedly adversely impacts a complaint, can take the allegation out of the realm of conjecture. However, I am not satisfied that is the case in this complaint. The Respondents’ internal communications about the transfer referenced the supervisor’s strained relationship with Mr. Ferreira, as well as how Mr. Ferreira’s strengths in sales were lacking in the service department and would be a benefit to the service department. The Respondents viewed Mr. Ferreira as an important and valued member of the team, whose experience and specific skills were considered assets that could strengthen the service area of the store, and communicated this to him.
[44] Mr. Ferreira’s allegation that he was adversely impacted by a material change in his status and work duties, has not been taken out of the realm of conjecture. Further, on the whole of the materials before me, I find that Mr. Ferreira’s allegation that his disability was a factor in his transfer remains speculative. There is no reasonable prospect Mr. Ferreira’s complaint would succeed at a hearing.
IV CONCLUSION
[45] The application to dismiss is granted under s. 27(1)(c). The complaint is dismissed in its entirety.
Laila Said Alam
Tribunal Member