SB v. Interior Health Authority and another, 2025 BCHRT 115
Date Issued: May 9, 2025
File(s): CS-005462
Indexed as: SB v. Interior Health Authority and another, 2025 BCHRT 115
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:
SB
COMPLAINANT
AND:
Interior Health Authority operating as Cranbrook Regional Hospital
and Dr. A. Barnard
RESPONDENTS
REASONS FOR DECISION
APPLICATION TO DISMISS A COMPLAINT
Section 27(1)(c)
Tribunal Member: Robin Dean
On her own behalf: SB
Counsel for the Interior Health Authority: David Bell
Counsel for Dr. A. Barnard: Abigail Turner
I INTRODUCTION
[1] On February 22, 2021, SB went to the emergency room at Cranbrook Regional Hospital because she was experiencing abdominal pain, diarrhea, nausea, and vomiting. Dr. Alan Barnard was the first physician to assess SB. SB says Dr. Barnard mistreated her by being rude, curt, and loud and diagnosed her with alcohol withdrawal when she was actually suffering from a C. difficile infection. She says that Dr. Barnard acted on his personal biases about addictions, which resulted in a misdiagnosis and a delay in her treatment. Her complaint alleges discrimination in the provision of services based on mental and physical disability contrary to s. 8 of the Human Rights Code .
[2] The Respondents apply to dismiss SB’s complaint under s. 27(1)(c) of the Code . In this decision, I must determine whether there is no reasonable prospect that SB’s complaint will succeed.
[3] Both Respondents argue there is no reasonable prospect that SB’s complaint will succeed because she will not be able to establish that she has a mental or physical disability, that she suffered an adverse impact, or that her disabilities were a factor in any adverse impact. Interior Health Authority also argues that the complaint against it cannot succeed because it was not Dr. Barnard’s employer. Rather, Dr. Barnard, it says, was an independent contractor and not under its control.
[4] Because I am satisfied that there is no reasonable prospect SB will establish that the adverse treatment she says she experienced was connected to the protected characteristics she alleges, I dismiss the complaint. In doing so, I make no determination about the employment relationship, if any, between Dr. Barnard and IHA. To make my 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 Anonymization
[5] This decision contains sensitive and highly personal medical information. The Tribunal has previously recognized that there is social stigma associated with addiction generally, and alcohol use disorder specifically: Senyk v. WFG Agency Network (No. 2) , 2008 BCHRT 376 at para. 279; The Pharmacist v. College of Pharmacists of British Columbia and another , 2024 BCHRT 291 at para. 222. People with substance use issues “may be stereotyped as morally blameworthy, untrustworthy, and prone to criminality”: RR v. Vancouver Aboriginal Child and Family Services Society (No. 6) , 2022 BCHRT 116 at para. 349.
[6] The Tribunal has said the stigma associated with addiction can be sufficient to warrant providing a complainant with some level of medical privacy while ensuring public access to the substance of the matter before the Tribunal: K v. RMC Ready Mix and another , 2019 BCHRT 102 at para. 11. Therefore, I have decided to anonymize SB’s name on my own motion. I am satisfied that anonymizing SB’s name strikes the correct balance between maintaining public access while ensuring personal privacy of sensitive, stigmatized information. If either party disagrees with this anonymization, they may apply to have SB’s name identified in this decision.
III DECISION
[7] The Respondents apply to dismiss SB’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.
[8] 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.
[9] 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 942 at para. 77 .
[10] A dismissal application is not the same as a hearing: Lord v. Fraser Health Authority , 2021 BCSC 2176 at 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 .
[11] 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.
[12] To prove her complaint at a hearing, SB will have to prove that she has a characteristic protected by the Code , she was adversely impacted in services, and her protected characteristic was a factor in the adverse impact: Moore v. British Columbia (Education) , 2012 SCC 61 at para. 33. If they did that, the burden would shift to the Respondents to justify the impact as a bona fide reasonable justification. If the impact is justified, there is no discrimination.
[13] The Respondents argue that there is no reasonable prospect that SB will be able to establish any of the factors from the test set out in Moore . With respect to nexus, they say that SB has failed to provide a factual basis for an inference of discrimination. I agree with the Respondents that SB has not shown that the evidence takes her complaint out of the realm of conjecture. As a result, I am satisfied that SB’s complaint has no reasonable prospect of success and should not proceed to a hearing.
[14] SB points to Dr Barnard’s allegedly unprofessional behaviour to argue that Dr. Barnard was operating from bias and stereotype about people with addictions when he suggested she might be suffering from alcohol withdrawal. She says at no point did Dr Barnard “utter any type of confidence-building/kind/caring/encouraging word to me”. His bias, she says, prolonged her pain while she awaited the correct diagnosis.
[15] I understand from SB’s complaint that she is asking the Tribunal to draw an inference of discrimination from Dr. Barnard’s behaviour during their interaction.
[16] “An inference of discrimination may arise ‘where the evidence offered in support of it renders such an inference more probable than the other possible inferences or hypotheses’”: Campbell v. Vancouver Police Board (No. 4) , 2019 BCHRT 275 at para. 103, quoting Vestad v. Seashell Ventures Inc ., 2001 BCHRT 38 at para. 44; Abbott v. Toronto Police Services Board , 2009 HRTO 1909 at para. 31. Inferences cannot be based on speculation and conjecture. As the Tribunal said at para. 188 of Smith v. Mohan (No. 2) , 2020 BCHRT 52:
Inferences must be ones that can be reasonably and logically drawn from a fact or group of facts established by the evidence. An inference that does not flow logically and reasonably from established facts cannot be made and is instead conjecture and speculation: R. v. Morrissey , 1995 CanLII 3498 (Ont. C.A.); ICBC v. Atwal , 2012 BCCA 12 at para. 40.
[17] While the bias and stereotype surrounding people with addictions is well known to the Tribunal, I agree with the Respondents that based on the evidence before me there is no reasonable prospect of the Tribunal finding that an inference of discrimination is more probable than not, particularly where there is no other evidence connecting SB’s alleged disabilities or perceived disabilities with the adverse impacts she says she experienced. There is no evidence as to what Dr. Barnard said to SB and whether his words were tainted with stereotype and assumptions about people with addictions. SB’s allegation that Dr. Barnard’s rude behaviour towards her and his misdiagnosis were due to his bias against people with addictions appears to be based on speculation and conjecture alone. This will not support an inference of discrimination.
[18] The Tribunal’s analysis on whether an inference is more probable than not also takes into account the Respondents’ explanation for the conduct: Campbell No. 4 at para. 103 ; Pieters v. Peel Law Association, 2010 HRTO 2411 at para. 85 (upheld in P eel Law Association v. Pieters , 2013 ONCA 396) ; Mema v. City of Nanaimo (No. 2), 2023 BCHRT 91 at paras. 12 and 289-290.
[19] Here, the Respondents say that SB’s symptoms and history with alcohol use were consistent with possible alcohol withdrawal. They say Dr. Barnard was not acting on stereotype but the history she provided to him, and the symptoms that she appeared with. SB told Dr. Barnard she had a 20-year history of daily alcohol use, and it had been three days since she consumed alcohol. Dr. Barnard queried alcohol withdrawal only—he then admitted her into the hospital for further care and diagnosis. SB was not dismissed or denied care, something she admits. Given this, I find that any inference that could be drawn from SB’s evidence is outweighed by the Respondents’ evidence regarding why Dr. Barnard suspected that SB might be experiencing alcohol withdrawal.
[20] On the whole of the materials before me, I am satisfied there is no reasonable prospect that SB could establish a connection between a disability and the adverse impacts she alleges. I am also satisfied that the Respondents are reasonably certain to establish a non-discriminatory reason for any adverse impacts experienced by SB.
IV CONCLUSION
[21] I dismiss SB’s complaint under s. 27(1)(c) of the Code .
Robin Dean
Tribunal Member