Littlejohn v. Clearview Demolition Ltd. (No. 2), 2024 BCHRT 272
Date Issued: September 25, 2024
File: CS-003714
Indexed as: Littlejohn v. Clearview Demolition Ltd. (No. 2), 2024 BCHRT 272
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:
Joseph Littlejohn
COMPLAINANT
AND:
Clearview Demolition Ltd.
RESPONDENT
REASONS FOR DECISION
APPLICATION TO DISMISS COMPLAINT
Sections 27(1)(c)
Tribunal Member: Christopher J. Foy
On their own behalf: Joseph Littlejohn
Counsel for the Respondent: Liam M. Robertson
I INTRODUCTION
[1] Joseph Littlejohn filed a complaint against his employer, Clearview Demolition Ltd. [Clearview]. Clearview is in the business of performing demolition work. Mr. Littlejohn was employed as a torcher/steel cutter and labourer for Clearview from on or about May 13, 2017 until his termination on January 31, 2020.
[2] Mr. Littlejohn suffered a back and hip/groin injury on January 29, 2019 and February 5, 2019. He alleges that Clearview discriminated against him by creating barriers which caused unnecessary delay in his receipt of appropriate and effective medical treatment for his injuries. In addition, Mr. Littlejohn alleges that Clearview failed to accommodate his physical injuries, abruptly ended his subsidized rental tenancy on two occasions, and terminated his employment, contrary to the Human Rights Code.
[3] Clearview denies discriminating against Mr. Littlejohn and applies to dismiss his complaint under s. 27(1)(c) of the Code. Clearview doesn’t dispute that Mr. Littlejohn has physical injuries that are protected characteristics under the Code but argues that there is no reasonable prospect the complaint will succeed at a hearing as Mr. Littlejohn suffered no adverse impacts in employment and, even if he did, there is no connection between those adverse impacts and his physical disabilities.
[4] In addition, Clearview says that because of his physical limitations, Mr. Littlejohn did not meet the bona fide occupational requirements of his pre-injury job resulting in no discrimination and in any event, Clearview accommodated Mr. Littlejohn to the point of undue hardship, as it offered him a position as a Traffic Control Person at his pre-injury wage rate and he rejected it.
[5] Further, Clearview argues that it is reasonably certain to prove that it has a solely non-discriminatory explanation for terminating Mr. Littlejohn: his rejection of the Traffic Control position with no suggested alternatives from him on what work he would be willing to perform, his lack of communication with Clearview, and the fact that Mr. Littlejohn no longer lived in reasonable proximity to Clearview’s business operations.
[6] The issues I must decide under s. 27(1)(c) of the Code are:
i. Whether there is no reasonable prospect Mr. Littlejohn will establish at a hearing that he was adversely impacted in his employment and that his physical disabilities were a factor in that adverse treatment; and
ii. Whether it is reasonably certain Clearview will establish a justification defence and that it met its duty to accommodate Mr. Littlejohn.
[7] While I do not refer in my decision to all the information filed by the parties in relation to this application to dismiss, I have considered it and thank the parties for their respective submissions. The following will not be a complete recitation of the parties’ submissions, but only those necessary to come to my decision. Given the nature of the application, I make no findings of fact.
[8] Below I first set out the background to the complaint. I then set out my reasons for denying the application to dismiss, in part.
II BACKGROUND
[9] Mr. Littlejohn lives in Edmonton, Alberta and has worked for Clearview at job sites in Alberta and British Columbia. Commencing in September 2018 he was living in Langley, B.C. in an apartment subsidized by Clearview and working on a jobsite in downtown Vancouver, B.C.
[10] According to Clearview’s Site Supervisor, Kyle Curtis, on or about January 28, 2019, Mr. Littlejohn told Mr. Curtis that he had injured himself while working out at the gym.
[11] On January 29, 2019, Mr. Littlejohn injured his lower back and left leg at the jobsite while he and a co-worker were removing a huge window out of a building.
[12] The following day, Mr. Littlejohn attended at the hospital. The materials before me indicate that Mr. Littlejohn had a history of back/left leg pain that started on or about December 2018.
[13] On February 5, 2019, Mr. Littlejohn injured his back, hip and groin while removing 250lbs doors at the jobsite. As a result, he was transported by ambulance to a hospital.
[14] On February 13, 2019, Mr. Cory Jashinski, an employee of Heatherbrae Builders, the prime contractor for the jobsite in downtown Vancouver where Clearview was a subcontractor, filled out an incident report [Incident Report].
[15] Mr. Littlejohn takes the position that the Incident Report is fraudulent because he says, “…it was not completed on the day of the accident as per normal procedures, and it attempted to blame me for my injuries because I went to the gym and should not have been performing these tasks on the job.”
[16] On or about February 28, 2019, Mr. Littlejohn filed a claim with WorkSafeBC to be compensated for his January 29, 2019 injury. This claim was initially denied but was eventually allowed upon review by WorkSafeBC’s Review Division.
[17] On or about March 1, 2019, Mr. Littlejohn says that he spoke with Brad Morrison, Clearview’s General Manager, about filing a WorkSafeBC claim for compensation regarding his February 5, 2019 injury. According to Mr. Littlejohn, Mr. Morrison “threatened” that filing a WorkSafeBC claim would “mess up” Mr. Littlejohn’s life but advised him to create an incident report with Mr. Curtis. Mr. Morrison denies Mr. Littlejohn’s characterization of this event and says he never threatened that filing a claim would “mess up” Mr. Littlejohn’s life.
[18] Later that day, Mr. Littlejohn says he went to complete an incident report with Mr. Curtis but Mr. Curtis would not allow it stating: “What incident? There is no incident report to do.”. Mr. Curtis denies that he ever prohibited Mr. Littlejohn from having an incident report prepared related to the February 5, 2019 injury.
[19] Five days later, during a March 6, 2019 telephone call with WorkSafeBC related to the January 29, 2019 injury, Mr. Littlejohn explained what happened at work on February 5, 2019 and the extent of his injuries. WorkSafeBC determined that in addition to the claim for the January 29, 2019 injury, a new claim should be started regarding the February 5, 2019 injury.
[20] From February 6, 2019 – March 18, 2019, Mr. Littlejohn was off work because of his injuries.
[21] On or about March 18, 2019, Mr. Littlejohn returned to work performing light duties for four hours a day. He was unable to maintain the light duties and went off work again on April 6, 2019.
[22] On or about March 27, 2019, Mr. Littlejohn alleges that Clearview abruptly ended his residential tenancy in Langley, B.C. Consequently, Mr. Littlejohn moved in April 2019 to a new apartment in B.C.
[23] On or about April 17, 2019, Mr. Littlejohn moved back home to Edmonton, traveling back to British Columbia for medical appointments.
[24] Also on April 17, 2019, Mr. Littlejohn provided a doctor’s note that he would be off work through to May 7, 2019.
[25] Mr. Littlejohn alleges that Clearview abruptly ended his tenancy in his new apartment on or about April 30, 2019.
[26] On May 2, 2019, Mr. Littlejohn was assessed by a WorkSafeBC doctor who recommended an MRI and referral to a back specialist.
[27] On May 7, 2019, WorkSafeBC accepted Mr. Littlejohn’s claim for the February 5, 2019 injuries (left lower back/hip and left groin injury) and commenced wage loss benefits backdated to February 6, 2019.
[28] On May 31, 2019, Mr. Littlejohn had an MRI performed on his back and left hip in Edmonton.
[29] On June 28, 2019, Mr. Littlejohn texted Mr. Morrison to update him on the MRI results.
[30] Clearview contracted with TeksMed Services Inc. [TeksMed] to keep Clearview “up to date with ongoing WCB claims as needed”. TeksMed also was retained to participate on Clearview’s behalf in any WorkSafeBC reviews/appeals involving Mr. Littlejohn.
[31] On July 18, 2019, Clearview’s Administrator, Ms. Marguerite Hulme, sent Mr. Littlejohn an email attaching a July 17, 2019 letter from Clearview which set out, in part, the following:
We understand from WorkSafeBC that you are currently waiting to see a visiting specialist consult regarding the condition of your lower back and hip. The last contact we have on file from you is a medical note excusing you from work through June 16, 2019.
We have failed to contact you via email and text on several occasions, and Eleanor from TeksMed has also reported several failed attempts to speak with you.
….
At this time, with no recent contact and no medical advice on record regarding your current condition or physical limitations for light duties, it appears as though you have abandoned your position with Clearview. It is apparent that the medical system is not providing assistance with getting you back to work, as the Act requires us to do, so we have pulled together resources to train you as a Traffic Control Person for an ongoing project in North Vancouver.
[32] The next day, on July 19, 2019, Mr. Littlejohn responded to Ms. Hulme stating as follows:
Hello I was in Langley hospital last week had that injection and my nerves got worst then I went to doctor clayton’s office and he signed me off for a month and talking to me about a little surgery but were am I apost to stay up there everytime i gosee the doctor I’m paying for hotels outa my pocket [as written]
[33] Also on July 19, 2019, Mr. Littlejohn spoke with Ms. Eleanor Skittrell, the Return to Work Coordinator, from TeksMed.
[34] In response to the offer of training for the Traffic Control Person position with Clearview, Mr. Littlejohn emailed Ms. Hulme on July 22, 2019 stating:
Ya I’m not to sure if I’m going to make it up there just I did try light before. it got worse I was there last week seen the doctor and waiting to see these surgen before I try little duty. the doctor in Langley said that’s why he signed me off…I want to work I dont like these not moving like before when I was good and active and now just always in pain on these pills I’m just glad I finally got the mri. I would would like to get better so I can go back to how it was and moving around right and perform at work again. [as written]
[35] Mr. Littlejohn did not end up accepting Clearview’s offer of the Traffic Control position.
[36] Regarding Clearview’s July 17, 2019 letter advising Mr. Littlejohn of “no medical advice on record regarding your current condition or physical limitations for light duties”, Ms. Hulme advised Mr. Littlejohn on July 22, 2019 that Clearview needed a copy of any doctor’s notes post June 16th, 2019. Mr. Littlejohn advised that his doctor writes up the notes and sends them directly to WorkSafeBC. Ms. Hulme replied: “Ok, we’ll request them from WorkSafe. Thanks Joseph.”
[37] On August 7, 2019, Mr. Littlejohn was assessed by a back surgeon who noted that the May 31, 2019 MRI showed evidence of disc herniations at three levels and conservative treatment was recommended.
[38] WorkSafeBC’s medical advisor recommended a pain management program [PMMP].
[39] From October 18, 2019 – December 27, 2019, Mr. Littlejohn participated in WorkSafeBC’s PMMP and was discharged as fit with limitations.
[40] On December 4, 2019, WorkSafeBC advised Mr. Littlejohn that his refusal of Clearview’s offer of the Traffic Control Person position was reasonable:
I find your refusal of the light duties on July 23, 2019 to be reasonable because at the time you were in significant pain and were actively undergoing medical investigations by two different surgeons. Your diagnosis was unclear as well as your functional limitations and/or restrictions.
[41] On January 20, 2020, WorkSafeBC advised Mr. Littlejohn that in their view, his February 5, 2019 injury had stabilized into a permanent condition as of January 6, 2020.
[42] WorkSafeBC referred Mr. Littlejohn to their Vocational Rehabilitation Services “to support your return to work”. WorkSafeBC determined that Mr. Littlejohn was unable to perform his “unmodified pre-injury job duties” due to the following limitations:
i. Difficulty with heavy work
ii. Difficulty with low level work
iii. Difficulty with sustained sitting and standing
iv. Difficulty with walking on uneven surfaces
v. Difficulty with ladder and stair climbing
[43] On January 31, 2020, Mr. Morrison wrote to Mr. Littlejohn terminating his employment:
According to WorkSafeBC, your physical limitations gathered from the PMMP discharge report effectively eliminate your ability to return to work with Clearview Demolition Ltd. in any capacity. Therefore, we must terminate your employment effective Jan. 5, 2020.
[44] Mr. Littlejohn says that he was “shocked and devastated” by the termination: “Learning that I was now without a job sent me in an emotional tailspin of feeling hopeless and uncertain about my future.”
[45] The following year, on January 10, 2021, WorkSafeBC approved spinal injection treatment for Mr. Littlejohn which he receives every three months enabling him to function normally, significantly relieved of pain.
[46] Later in 2021, Mr. Littlejohn was hired as a torch cutter by another company and performs the same duties as he had done at Clearview.
III DECISION
A. Preliminary Issue – “New Allegations”
[47] Clearview argues that in response to their application to dismiss, Mr. Littlejohn has added several “new allegations” that don’t form part of the original complaint, are statue-barred and in the alternative are simply untrue.
[48] I disagree with Clearview that there are any “new allegations” or that Mr. Littlejohn has sought to expand the scope of the complaint. Mr. Littlejohn’s submission only further particularizes his original complaint and complaint amendment in response to Clearview’s application to dismiss. This is permissible and not uncommon: Rush v. Fraser Health Authority (No. 2) , 2024 BCHRT 13 at para. 25; Backeland v. BCGEU and others, 2023 BCHRT 52 at para. 137.
B. Should the complaint be dismissed under s. 27(1)(c) of the Code ?
[49] I begin by setting out the relevant legal principles. The requirements to prove discrimination were affirmed by the Supreme Court of Canada in Moore v. British Columbia, 2012 SCC 61 [Moore] at para. 33. The Court held that complainants must show that they have or are perceived to have a characteristic protected from discrimination; that they have experienced an adverse impact in a protected area; and that the protected characteristic was a factor in the adverse impact. The Tribunal refers to this as the complainant’s case: Vikv. Finamore (No. 2), 2018 BCHRT 9 at para. 50.
[50] To establish his case at a hearing, Mr. Littlejohn would not have to prove that his physical disabilities were the only factor, overriding factor, or even a significant factor in the alleged adverse impact he experienced. He would have to prove it was a factor or, put differently, there was a nexus between his disability and the adverse impact: Quebec (Commission des Droits de la personne et des droits de la jeunesse) v. Bombardier Inc. , 2015 SCC 39 at paras. 45-52; Stewart v. Elk Valley Coal Corp ., 2017 SCC 30 at para. 46.
[51] Section 27(1)(c) of the Code is a gatekeeping provision where the Tribunal has the discretion to dismiss a complaint if it determines that the complaint has no reasonable prospect of success. The Tribunal’s role is to assess whether, based on all the material before it, and applying its expertise, there is no reasonable prospect the complaint will succeed at a hearing: Berezoutskaia v. British Columbia (Human Rights Tribunal) , 2006 BCCA 95 at paras. 9 and 27; Workers’ Compensation Appeal Tribunal v.Hill, 2011 BCCA 49 at para. 27 [Hill].
[52] To be successful under s. 27(1)(c), the burden is on the respondent to show there is no reasonable prospect of the complaint succeeding. This may be established in two ways. First, if the Tribunal determines there is no reasonable prospect that the complainant will be able to establish one or more elements of the complaint at a hearing, it may dismiss the complaint. The threshold for proceeding to a hearing is low. In circumstances where the respondent disputes one of these elements, the complainant’s only obligation is to point to some evidence capable of raising their complaint “out of the realm of conjecture”: Hill at para. 27.
[53] Second, the Tribunal may consider a defence in an application under s. 27(1)(c): Trevenav.Citizens’ Assembly on Electoral Reform and others, 2004 BCHRT 24 at para. 67. Section 13(4) of the Code sets out circumstances within which a respondent may prove their actions are justified based on a good faith occupational requirement: British Columbia (Public Service Employee Relations Commission) v.B.C.G.S.E.U.[1999] 3 S.C.R. 3 at para. 54 [Meiorin] . This test includes establishing that the respondent discharged its duty to reasonably accommodate the complainant’s disability.
[54] If it is reasonably certain that a respondent will establish a defence at a hearing of the complaint, then there is no reasonable prospect that the complaint will succeed: Purdyv.Douglas College and others, 2016 BCHRT 117 at para. 50.
[55] I begin my analysis with the elements Mr. Littlejohn would have to prove at a hearing to establish discrimination, recognizing that he need not prove these elements on this application, rather Clearview must persuade me Mr. Littlejohn has no reasonable prospect of doing so. I conclude Clearview has not shown there is no reasonable prospect of Mr. Littlejohn’s complaint succeeding with respect to his termination. Finally, I will explain why I conclude that it is not reasonably certain that Clearview will establish they met their duty to accommodate.
[56] As mentioned, Clearview doesn’t dispute that Mr. Littlejohn has physical disabilities that are protected under the Code. Rather, Clearview argues Mr. Littlejohn has no reasonable prospect of proving an adverse impact in employment or that his disability was a factor in any adverse impact.
1. Alleged Barriers To Medical Treatment Caused By Clearview
[57] Mr. Littlejohn says that he suffered adverse impacts in the course of his employment because Clearview caused him unnecessary delay in receiving appropriate and effective medical treatment. In particular, Clearview is alleged to have done the following:
a. obstructed the proper and accurate reporting of Mr. Littlejohn’s injuries on February 5, 2019; and
b. obstructed Mr. Littlejohn from making a claim to WorkSafeBC
[58] Clearview’s position is that it did not draft the Incident Report, that in any event the Incident Report is not “fraudulent”, and Clearview is not responsible for any alleged adverse impact experienced by Mr. Littlejohn because of the Incident Report.
[59] Clearview disputes that they obstructed Mr. Littlejohn from making a claim to WorkSafeBC. They say that Mr. Littlejohn has not suffered any adverse impacts as WorkSafeBC approved his claim for benefits.
[60] Further, Clearview says there is no evidence to suggest that they created barriers or caused delay in Mr. Littlejohn being able to obtain medical treatment. There is no evidence of an adverse impact being sustained by Mr. Littlejohn and a corresponding nexus to his injury.
[61] Although I recognize that Mr. Littlejohn views the Incident Report as inaccurate and that there is conflict in the evidence regarding what occurred on March 1, 2019 between Mr. Littlejohn and Messrs. Morrison and Curtis, in my view Mr. Littlejohn has not provided any evidence on this application to support his allegations beyond conjecture that any delay in his medical treatment was caused by Clearview.
[62] I can only consider information that is before me and I cannot consider what additional evidence might be given if there is a hearing: University of British Columbia v. Chan, 2013 BCSC 942 at para. 77. Absent evidence, the allegation has no reasonable prospect of success and I dismiss it.
[63] Further, Mr. Littlejohn acknowledges that there are inherent delays in the medical system and that his doctors took time to clarify the nature and extent of his injuries. Mr. Littlejohn states:
I also assumed the Respondent had access to any medical reports/notes that had been sent to WorkSafeBC and were aware of delays in the medical system and that the doctors were still working to clarify the nature and extent of my injuries . (emphasis added)
[64] On the basis of the material before me, I find that Clearview has shown there is no reasonable prospect of success of Mr. Littlejohn proving that his injuries and Clearview’s conduct in relation to them were a factor in, or created barriers, causing delay in his appropriate and effective medical treatment.
2. Termination
[65] Mr. Littlejohn claims that he was not accommodated properly though a return-to-work as Clearview made the decision to terminate him without discussing potential job modifications with him once he was accepted for WorkSafeBC Vocational Rehabilitation Services.
[66] The materials indicate, in particular Mr. Littlejohn’s email on July 22, 2019 to Ms. Hulme, that he was hoping to return to work.
[67] However, a return to work never materialized given Clearview communicated to Mr. Littlejohn that he was terminated effective January 5, 2020.
[68] A denial of a return to work because of an employee’s disability is considered adverse treatment: Kerr v. Boehringer Ingelheim (Canada) Ltd. [2009] B.C.H.R.T.D. No. 196 at paras. 439-440, aff’d 2011 BCCA 266. In addition, there is no dispute that dismissal from employment, is an adverse impact for the purposes of human rights law: Carneyv.Pro-Can Construction Group, 2020 BCHRT 62 at para. 22.
[69] Based on the evidence before me, Mr. Littlejohn has taken out of the realm of conjecture that he suffered an adverse impact.
[70] On the basis of Mr. Morrison’s January 31, 2020 termination letter alone, I cannot find Mr. Littlejohn’s allegation on nexus is mere conjecture. According to Clearview, Mr. Littlejohn was terminated because of his “physical limitations”. As a result, I cannot find that Clearview has shown that Mr. Littlejohn has no reasonable prospect of proving that his physical disability was a factor in his termination of employment.
3.Justification Defence
[71] Given Clearview has not met its onus to establish that Mr. Littlejohn has no reasonable prospect of success in establishing a complainant’s case, the issue I must now decide is whether Clearview is reasonably certain to establish at a hearing a justification defence.
[72] In this regard, I acknowledge that Clearview says it did not terminate Mr. Littlejohn as a result of his injuries but because he:
a. did not accept the Traffic Control position;
b. did not communicate what role or position he would be willing to perform;
c. did not contact Mr. Morrison, Clearview or TeksMed for several months prior to termination; and
d. no longer lived in British Columbia where Clearview’s operations were.
[73] I will address Clearview’s arguments in the order presented above for convenience and I conclude that either reviewing Clearview’s arguments individually or as a whole, the materials before me do not establish that Clearview is reasonably certain to prove a non-discriminatory explanation for the termination.
Refusal to accept the Traffic Control position
[74] Clearview relies on Mr. Littlejohn’s refusal to accept the Traffic Control position as justification for the termination. TeksMed submitted a formal objection to WorkSafeBC on behalf of Clearview to Mr. Littlejohn’s refusal to accept the Traffic Control position in July 2019. WorkSafeBC found that Mr. Littlejohn refusing to accept the Traffic Control position was reasonable because he was in significant pain at the time and actively undergoing medical investigations by two different surgeons with an unclear diagnosis and it was unclear what his functional limitations were.
[75] I am not satisfied that Clearview is reasonably certain to prove at a hearing that Mr. Littlejohn was unreasonable in refusing the Traffic Control position.
Mr. Littlejohn did not communicate what role or position he would be willing to perform
[76] Clearview argues that they didn’t receive any communications from Mr. Littlejohn describing what, if any, alternative position he would be willing to perform.
[77] It is trite law that the duty to accommodate is a process where Clearview and Mr. Littlejohn both have obligations. However, the Supreme Court of Canada has ruled that it is the employer that has the primary responsibility for workplace accommodations. The Court stated in Central Okanagan School No. 23 v. Renaud, [1992] 2 S.C.R. 970 at para. 39:
Nevertheless, account must be taken of the fact that ordinarily the employer, who has charge of the workplace, will be in the better position to formulate accommodations.
[78] Clearview has not provided any evidence in the materials before me where they have communicated or asked Mr. Littlejohn what role or position he would be willing to perform. It is evident from the materials that Mr. Littlejohn was hoping to return to his previous position and was caught off guard by what he considered was an abrupt termination.
[79] Consequently, I am not satisfied that Clearview is reasonably certain to prove at a hearing they discharged the duty to accommodate and therefore justified the termination based on Mr. Littlejohn’s purported lack of articulating what role or position he was willing to perform.
[80] The materials indicate that in support of Clearview’s application to dismiss they say the Traffic Control position remains open for Mr. Littlejohn to accept and they are “open to discussing alternative accommodated work options” should Mr. Littlejohn wish to return to work. However, on the evidence before me, the option of alternative accommodated work was never made available in January 2020 when Mr. Littlejohn was terminated.
Mr. Littlejohn did not contact Mr. Morrison, Clearview or TeksMed
[81] Clearview argues that they had been unable to contact Mr. Littlejohn for several months prior to terminating him. Clearview provided evidence that on July 17, 2019 Ms. Hulme sent a letter to Mr. Littlejohn with concern regarding his lack of contact.
[82] The evidence demonstrates that Mr. Littlejohn responded promptly to Ms. Hulme’s July 17, 2019 letter, spoke with Ms. Skittrell of TeksMed and had several email exchanges with Ms. Hulme.
[83] Clearview hasn’t provided any evidence to indicate that Mr. Littlejohn was either unresponsive or did not contact Mr. Morrison or Clearview in the months prior to his termination. Instead, they have provided evidence that Mr. Littlejohn was not returning calls from TeksMed as at November 18, 2019.
[84] Clearview knew that Mr. Littlejohn was participating in the PMMP at this time, until early December 2019.
[85] I am not satisfied that Clearview is reasonably certain to prove at a hearing they have justified the termination based on a lack of communication from Mr. Littlejohn.
Mr. Littlejohn no longer lived in British Columbia where Clearview’s operations were
[86] Clearview argues that the termination was justified because Mr. Littlejohn no longer resided in reasonable proximity to their business operations.
[87] The evidence is that Clearview had projects/contracts in both British Columbia and Alberta. The evidence is that Mr. Littlejohn’s main residence was in Edmonton but that he would relocate to British Columbia for work with Clearview and that Clearview subsidized his tenancy. Mr. Littlejohn was also getting medical treatment in British Columbia.
[88] The fact that Mr. Littlejohn was at home in Edmonton at the time of his termination does not satisfy me that that Clearview is reasonably certain to prove at a hearing they have a non-discriminatory justification for his termination on this basis.
4. Duty To Accommodate
[89] As an alternative argument, Clearview says Mr. Littlejohn’s position “had bona fide occupational requirements and as a result, the Respondent is permitted to discriminate with respect to who could perform the Position.”
[90] Clearview argues that Mr. Littlejohn could no longer fulfill the requirements of the Torcher/Cutter position given his physical limitations. The Tribunal has said that the issue of frustration of contract is analyzed in the context of a bona fideoccupational requirement under s. 13(4) of the Codeand, specifically, whether an employer has fulfilled its duty to accommodate: Senyk v. WFG Agency Network (No. 2) , 2008 BCHRT 376at para. 314.
[91] The issue of whether an employer has established frustration of contract and has fulfilled the duty to accommodate takes into account contextual factors, including the terms of the contract; the nature of the employment; the nature of the disability, how long it has continued, and the prospect of recovery; the period of past employment: Ciliberto v. Tree Island Industries Ltd., 2024 BCHRT 87 at para. 41, citing Senyk.Ultimately, the Tribunal considers whether it caused the employer hardship to continue the employment: Senykat para. 356; Paine v. Gordon Food Service Canada Ltd. and another, 2024 BCHRT 177 at para. 47.
[92] A formal job description was not submitted as part of the materials before me. There is conflict in the evidence between Mr. Morrison’s description of Mr. Littlejohn’s position with Clearview and Mr. Littlejohn’s. Mr. Morrison says the job required the ability to lift 50lbs repeatedly. Mr. Littlejohn says that in practice he spent very little time performing the duties of a labourer or doing heavy lifting. Given this conflict in the evidence, it is appropriate to move the matter to a hearing. But even accepting Mr. Morrison’s description of Mr. Littlejohn’s position, Clearwater has not persuaded me that they are reasonably certain to prove a bona fide occupational requirement and, specifically to prove that they discharged the duty to accommodate.
[93] Although not a significantly long-service employee of Clearwater, Mr. Littlejohn was described by Mr. Morrison as a “good worker” and, as mentioned above, had worked for Clearview in both Alberta and British Columbia.
[94] With respect to Mr. Littlejohn’s prospects for recovery and return to work, the evidence demonstrates that they were good. The fact is that within approximately a year of his termination he was performing the same position he had at Clearview with another company. In addition, Clearview has stated in their materials that they would welcoming him back at work.
[95] There is both a procedural component and a substantive component within the duty to accommodate. The procedural component requires the employer to undertake an individualized investigation of accommodation measures and an assessment of an employee’s needs. The substantive component requires the employer to make modifications or provide the accommodation necessary in order to allow an employee to participate fully in the workplace: Meiorin at para. 66.
[96] The Tribunal has found that the procedural component imposes a duty on an employer to obtain all relevant information about the employee’s disability. 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.
[97] Mr. Littlejohn alleges Clearview did not meet with him or explore accommodation options upon receiving the January 20, 2020 updated information from WorkSafeBC.
[98] I have already articulated that there is evidence supporting that Mr. Littlejohn’s refusal to accept the Traffic Control position in July 2019 was a reasonable one. There was no reoffering of this position by Clearview prior to Mr. Littlejohn’s termination. There is no evidence that Clearview provided Mr. Littlejohn an opportunity to support his continued employment other than that one offer of the Traffic Control position in July 2019.
[99] There is no evidence that Clearview inquired further or explored further what if any accommodations would be available for Mr. Littlejohn.
[100] Clearview says that, given Mr. Littlejohn’s physical limitations, there would be a safety concern as other employees could be in jeopardy. However, there is no evidence before me that supports this argument.
[101] Therefore, I cannot conclude on this application that it is reasonably certain that at a hearing Clearview will establish a bona fide occupational requirement and specifically to prove they met their duty to accommodate short of undue hardship.
Ending subsidized tenancy
[102] Mr. Littlejohn also argues that Clearview did not accommodate his physical injuries and abruptly ended his subsidized tenancy in March 2019 and a second subsidized tenancy in April 2019, making it more difficult for him to attend medical appointments and receive care. I come to a different conclusion with respect to these allegations.
[103] Regarding the March 2019 tenancy, the evidence indicates it was the landlord/property manager and not Clearview who misunderstood Mr. Littlejohn’s intended vacancy date and rented out the premises prematurely causing Mr. Littlejohn to abruptly make arrangements to move out earlier.
[104] Regarding the April 2019 tenancy, Mr. Littlejohn had already gone back home to Edmonton on April 17, 2019. The evidence indicates a “Mutual Agreement to End a Tenancy” document between the landlord and Mr. Littlejohn. There is no evidence before me contradicting the mutual nature of the tenancy agreement. This “Mutual Agreement to End a Tenancy” document is signed by Mr. Littlejohn with him agreeing to move out on April 30, 2019.
[105] Based on the materials before me, Clearview is reasonably certain to prove there was no failure to accommodate Mr. Littlejohn with respect to his tenancies.
IV CONCLUSION
[106] Clearview’s application under s.27(1)(c) is dismissed, in part. I dismiss Mr. Littlejohn’s allegations that Clearview caused unnecessary delay in receiving appropriate and effective medical treatment, and that Clearview discriminated against him in relation to his tenancies.
[107] Mr. Littlejohn’s allegations of discrimination related to his termination and the failure of Clearview to accommodate his injuries, except for allegations related to his tenancies, will move forward to a hearing.
[108] I encourage the parties to take advantage of the Tribunal’s mediation services to try to resolve this matter by mutual agreement.
__________________________________
Christopher J. Foy
Tribunal Member