Nixon v. Dramatic Play Enterprises Inc., 2025 BCHRT 117
Date Issued: May 9, 2025
File(s): CS-001843
Indexed as: Nixon v. Dramatic Play Enterprises Inc., 2025 BCHRT 117
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:
Stephanie Nixon
COMPLAINANT
AND:
Dramatic Play Enterprises Inc.
RESPONDENT
REASONS FOR DECISION
APPLICATION TO DISMISS A COMPLAINT
Section 27(1)(c)
Tribunal Member: Ijeamaka Anika
Counsel for the Complainant: Zoe Arghandewal
Counsel for the Respondent: Zachary White
I INTRODUCTION
[1] Stephanie Nixon alleges that her former employer, Dramatic Play Enterprises Inc. [ DPE ], discriminated against her in employment on the basis of physical disability contrary to s. 13 of the Human Rights Code . DPE terminated Ms. Nixon’s employment in August 2021. Ms. Nixon alleges that her termination was connected to long-term chronic pain from a migraine, which she suffered for over two years prior to the termination of her employment.
[2] DPE denies discriminating and says Ms. Nixon’s employment was terminated due to allegations of misconduct. DPE says it would have amounted to undue hardship to accommodate Ms. Nixon by allowing her to continue working at the daycare given the misconduct allegations. DPE says that a licensing investigation found Ms. Nixon had engaged in misconduct.
[3] For the following reasons, I deny the application. I am not satisfied that DPE is reasonably certain to prove that it could not accommodate Ms. Nixon to the point of undue hardship. I have considered all the information filed by the parties to make this decision. In these reasons, I only refer to what is necessary to explain my decision. I make no findings of fact.
II BACKGROUND
[4] This background is taken from the materials filed by the parties.
[5] DPE operates a licensed daycare facility regulated by the Vancouver Island Health Authority [ VIHA ] under the Community Care and Assisted Living Act [ CCALA ] and the Child Care Licensing Regulation [ CCLR ].
[6] Lana Coghlan and Cindy Savage own and operate the daycare facility. Ms. Nixon worked as an early childhood educator at the daycare for 17 years before her employment was terminated.
[7] Ms. Nixon began experiencing headaches around June 2019. These headaches developed into what she describes as a “constant never-ending migraine” that persisted for over two years. Despite her headaches, Ms. Nixon continued working.
[8] In early 2020, Ms. Nixon informed Ms. Coghlan that her doctor recommended taking time off for health reasons. Between March and August 2020, Ms. Nixon took an unpaid leave of absence. Text messages show Ms. Coghlan inquired about Ms. Nixon’s headache at least once during this period.
[9] Upon returning to work in August 2020, Ms. Nixon continued to experience chronic migraines, which she later described in an email to Ms. Coghlan as causing “tremendous to excruciating pain.”
[10] In July 2021, another childcare educator reported their concerns to DPE about Ms. Nixon’s conduct during two separate incidents with children at the daycare in June 2021 [the incidents ]. In the first incident, it was reported that Ms. Nixon was helping a child put on their shoes when a second child tried to get by her. Ms. Nixon then spun around and forcefully grabbed the arm of the second child and caused him to fall backwards and hit his head. In the second incident, the staff member reported that Ms. Nixon yelled at and grabbed a child by both arms, firmly pulled the child and continued to yell at them because the child ignored Ms. Nixon’s direction to put on sunscreen.
[11] At the time of these reports, Ms. Nixon was on scheduled leave.
[12] DPE commenced an internal investigation. In an email dated July 24, 2021, DPE notified Ms. Nixon about the allegations, stating that regardless of daily life challenges, “it is never okay to forceably [sic] put your hands on another child or speak with hostility or aggression.” The email asked Ms. Nixon to consider whether “chronic headaches and physical ailments are at the root of your frustrations.”
[13] In subsequent communications, Ms. Nixon acknowledged she was “still giving her all while experiencing tremendous to excruciating pain” and that “maybe it is time for [her] to part ways.” DPE asked whether she was taking medical leave or permanently leaving. It told Ms. Nixon that it required medical authorization and an estimated return date if she was taking medical leave.
[14] On July 29, 2021, Ms. Nixon emailed DPE stating that she was “not able to cope in the daycare setting” in her “current but continual condition” and that she was trying to get help to “come back in a better state.” Ms. Nixon stated that she was not permanently parting ways with DPE but was taking medical leave in response to understanding the concerns raised. She told Ms. Coghlan she had scheduled an appointment with a new nurse practitioner for August 5, 2021, to obtain the required documentation.
[15] On July 30, 2021, Ms. Coghlan responded that DPE would wait for the information from the nurse practitioner and “follow up with next steps and moving forward.”
[16] On August 6, 2021, Ms. Nixon emailed DPE that she was “no longer able to handle being in pain and misery after over two years with this constant never-ending migraine” and acknowledged it was affecting her work, as Ms. Coghlan had noted in her earlier email.
[17] On August 9, 2021, DPE reported the incidents to VIHA.
[18] By letter dated August 10, 2021, DPE terminated Ms. Nixon’s employment for cause, citing the VIHA investigation and VIHA’s instructions that it immediately implement a health and safety plan.
[19] On August 12, 2021, Ms. Nixon provided a medical note stating she would be “off work for medical reasons” from August 2 to 27, 2021. DPE responded that they no longer required the doctor’s note as her employment had been terminated. DPE stated they felt it was “best for everyone involved if we part ways permanently.”
[20] DPE says that on August 12, 2021, two days after terminating Ms. Nixon’s employment, it learned that sometime in 2021, Ms. Nixon had allowed her niece to volunteer at the daycare while Ms. Coghlan and Ms. Savage were away without completing the necessary paperwork. DPE says that after Ms. Nixon’s termination, it also learned of another incident regarding Ms. Nixon’s behaviour towards the children in her care on July 14, 2021.
[21] DPE also provides the Tribunal with notes from the staff member who reported the incidents. These notes suggested Ms. Nixon had preexisting feelings toward a child involved in the first incident, possibly contributing to “impulsive action.” Regarding the second incident, the staff member hoped Ms. Nixon would address “the short fuse that has been leading to these outbursts” and noted seeing “a new version of Ms. Nixon” in recent months. The staff member’s opinion was that Ms. Nixon should not be around children until her issues were resolved.
[22] On October 29, 2021, VIHA found that the allegations against Ms. Nixon were substantiated, and as a result, DPE had breached the CCLR and CCLA.
III DECISION
[23] DPE applies to dismiss Ms. Nixon’s complaint on the basis that it has no reasonable prospect of success: Code, s. 27(1)(c) The onus is on DPE to establish the basis for dismissal.
[24] 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.
[25] 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 .
[26] 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 [ Hill ] at para. 27 .
[27] To prove her complaint at a hearing, Ms. Nixon will have to prove that she has a characteristic protected by the Code , she was adversely impacted in employment, and her protected characteristic was a factor in the adverse impact: Moore v. British Columbia (Education) , 2012 SCC 61 at para. 33. If she did that, the burden would shift to DPE to justify the impact as a bona fide reasonable justification. If the impact is justified, there is no discrimination.
[28] DPE’s arguments here center on whether Ms. Nixon is able to prove the first and third factors in Moore . I consider them next.
A. Has Ms. Nixon taken her claim of disability within the meaning of the Code out of the realm of conjecture?
[29] DPE disputes Ms. Nixon’s claim of disability within the meaning of the Code , arguing she has not provided sufficient documentation showing she had a physical disability during her employment. It says the measure of severity of Ms. Nixon’s alleged disability was not such that she brought any medical evidence to DPE or requested accommodations due to the alleged headaches.
[30] Whether a complainant has a disability under the Code depends on the specific circumstances of each case: Young v. Vancouver Coastal Health Authority and others , 2018 BCHRT 27 at para. 100. The Tribunal has interpreted “disability” to mean a “physiological state that is involuntary, has some degree of permanence, and impairs the person’s ability, in some measure, to carry out the normal functions of life”: Rael v. Cartwright Jewelers and another , 2021 BCHRT 106 at para. 13, citing Boyce v. New Westminster (City) , 1994 CanLII 18445 at para. 50.
[31] I am not convinced that Ms. Nixon has no reasonable prospect of proving she had a disability within the meaning of the Code . The evidence shows she experienced what she described as a “constant never-ending migraine” for over two years, causing “tremendous to excruciating pain.” This condition appears to have persisted with some degree of permanence, requiring her to take an initial leave of absence and affecting her ability to function at work.
[32] While I agree with DPE that the medical note dated August 12, 2021, does not specify a diagnosis, it confirms she needed to be off work for medical reasons. Additionally, DPE’s own communications demonstrate awareness of Ms. Nixon’s condition, as evidenced by their July 24, 2021, email specifically referencing her “chronic headaches and physical ailments” and suggesting these might be “at the root of [her] frustrations.” Moreover, the Tribunal’s case law recognizes that a diagnosis is not required to prove a complainant has a disability protected by the Code , and the duty to accommodate may arise before a disability is diagnosed: Gordon v. Service Corporation International (Canada) ULC and another , 2019 BCHRT 91 at paras. 43 and 60.
[33] On the low threshold required at this stage, I am satisfied that Ms. Nixon has taken it out of the realm of conjecture, that her migraines amount to a disability within the meaning of the Code .
B. Adverse impact
[34] As I stated above, DPE did not make any submissions on whether Ms. Nixon has no reasonable prospect of proving adverse impact.
[35] Therefore, I have no difficulty in finding that Ms. Nixon has a reasonable prospect of proving she experienced an adverse impact. There is no dispute that Ms. Nixon’s employment was terminated. The Tribunal has accepted that termination of a person’s employment is, in itself, an adverse impact regarding their employment: Rabinovich v. Chemainus Inn Management Services Inc. (No. 2) , 2024 BCHRT 302 (CanLII), at para 34; Eva obo others v. Spruce Hill Resort and another , 2018 BCHRT 238 at para. 92; Suen v. Envirocon Environmental Services (No. 2) , 2017 BCHRT 226 at para. 35.
[36] Next, I consider whether Ms. Nixon has no reasonable prospect of establishing the termination of her employment was connected to her alleged disability.
C. Is there no reasonable prospect of Ms. Nixon establishing a nexus between the termination of her employment and her alleged disability?
[37] For the reasons that follow, I am not convinced that Ms. Nixon has no reasonable prospect of establishing the required nexus.
[38] DPE argues that Ms. Nixon was not terminated because of an alleged disability or for taking a medical leave. It argues that Ms. Nixon’s employment was terminated because of her numerous breaches of the CCLR, CCALA, and the terms of her employment. It says that the severity of any alleged disability was not such that it impeded Ms. Nixon’s performance at work.
[39] I am not persuaded by DPE’s argument. My understanding of the parties’ submissions is that issues with Ms. Nixon’s performance and work started when she started complaining of chronic headaches. First, Ms. Nixon took time off work in 2020 due to the headaches. Second, when DPE became aware of the incidents, it emailed Ms. Nixon about them, including asking her whether her “chronic headaches, and physical ailments are the root of your frustrations.” In her response to this email on August 6, 2021, Ms. Nixon stated among other things that “[she] is no longer able to handle being in pain and misery after over two years with this constant never-ending migraine. Like you brought up to me, it’s affecting even my work now.” Third, prior to this the chronic headaches and the incidents, it is not apparent that Ms. Nixon had had any issues with her performance at work in the 17 years she had been employed by DPE.
[40] Therefore, on the low threshold required at the dismissal application stage, I am not persuaded that Ms. Nixon has no reasonable prospect of proving her alleged disability impacted her performance at work including specifically the incidents that led to the termination of her employment.
D. Is DPE reasonably certain to prove it was justified in terminating Ms. Nixon’s employment?
[41] To justify terminating Ms. Nixon’s employment, at the hearing, DPE would have to prove that: (1) it adopted the standard for a purpose rationally connected to the function being performed, (2) it adopted the standard in an honest and good faith belief that it was necessary to the fulfillment of that legitimate purpose; and (3) the standard is reasonably necessary to the accomplishment of that legitimate purpose. This third element encompasses DPE’s duty to accommodate Ms. Nixon 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 .
[42] DPE argues that the breaches of the CCLR , CCALA , and the terms of Ms. Nixon’s employment were so severe that it was not possible to permit Ms. Nixon to continue working at the daycare.
[43] There is no dispute that DPE was bound by the provisions of the CCALA and CCLR , which are designed to ensure the safety of the children being cared for by service providers governed by these statutes. Section 52 of the CCLR states:
52 (1) A licensee must ensure that a child, while under the care or supervision of the licensee, is not subjected to any of the following:
(a)shoving, hitting or shaking by an employee or another child, or confinement or physical restraint by another child;
(b)confinement or physical restraint by an employee, except as authorized in a child care’s plan if the care plan includes instructions respecting behavioural guidance;
(c)harsh, belittling or degrading treatment by an employee or another child, whether verbal, emotional or physical, that could humiliate the child or undermine the child’s self respect;
(d)spanking or any other form of corporal punishment;
(e)separation, without supervision by a responsible adult, from other children;
(f)as a form of punishment, deprivation of meals, snacks, rest or necessary use of a toilet. 22.
[44] Section 55(2)(a) of the CCLR requires DPE to notify the medical health officer within 24 hours after a child is involved in or may have been involved in, a reportable incident while under the licensee’s care or supervision.
[45] Section 7(1)(b)(i) of the CCALA states that the daycare must operate the facility in a manner that will promote the health, safety, and dignity of the persons in the case.
[46] The focus of the parties’ arguments is the third branch of the justification test; specifically, the duty to accommodate. Therefore, I assume without deciding for the purposes of this application that DPE is reasonably certain to make out the first two elements of the justification test.
[47] DPE argues that it would have been impossible to accommodate the incidents without incurring undue hardship because the incidents resulted in harm to children under its supervision, and it was mandated to report the incidents to VIHA.
[48] On the evidence before me, I am not satisfied that DPE is reasonably certain to prove it could not have accommodated Ms. Nixon without incurring undue hardship.
[49] What is reasonable and what constitutes accommodation short of undue hardship is fact-specific and will turn on the specific circumstances of each case: Central Okanagan School District No. 23 v. Renaud , [1992] 2 SCR 970.
[50] First, the provisions of the CCLR cited by DPE do not explicitly require termination of employment during an investigation and before VIHA issues its findings. DPE does not say that VIHA’s requirement to implement a health and safety plan immediately required terminating Ms. Nixon’s employment. On the evidence before me, DPE terminated Ms. Nixon’s employment because Ms. Coghlan and Ms. Savage “felt it was best for everyone involved” once VIHA started its investigation. DPE does not explain why Ms. Nixon could not have gone on medical leave as she suggested pending the outcome of the VIHA investigation or why it did not wait to receive Ms. Nixon’s medical note, particularly when DPE suggested that Ms. Nixon’s chronic headaches may have impacted her at work.
[51] Second, DPE argues that the breaches by the Complainant were so severe that it was impossible to permit Ms. Nixon to continue working for DPE. It says that following VIHA’s confirmation that Ms. Nixon’s actions breached the provisions of the CCALA, the incidents were grounds for termination for cause.
[52] While VIHA ultimately substantiated the allegations on October 29, 2021, DPE has not explained why it could not have waited for Ms. Nixon’s medical documentation or why it could not have sought out information that would have assisted it in understanding whether Ms. Nixon would be able to manage her symptoms in the reasonably foreseeable future and be able to comply with the relevant legislation and job requirements: 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. 16. Rather, DPE terminated Ms. Nixon’s employment on August 10, 2021, four days after she acknowledged to DPE that her migraine was affecting her work performance and while she was still seeking medical documentation for leave.
[53] Therefore, I am not persuaded that DPE is reasonably certain to prove that allowing Ms. Nixon to remain an employee during the VIHA investigation or implementing any changes that would allow Ms. Nixon to retain her job would amount to undue hardship. While the duty to accommodate does not require DPE to fundamentally change its operations, it required it to work with Ms. Nixon to find a solution that adequately balanced the competing interests: Hydro-Québec at para. 16; K v. RMC Ready Mix Ltd. and another (No. 4) , 2022 BCHRT 108 (CanLII), at para 146, citing Central Alberta Dairy Pool v. Alberta (Human Rights Commission) , 1990 CanLII 76 (SCC), [1990] 2 S.C.R. 489 at p. 521 and Kemess Mines Ltd. v. International Union of Operating Engineers, Local 115 , 2006 BCCA 58 at para. 38.
[54] At the hearing, DPE may establish that allowing Ms. Nixon to continue working at the daycare would have constituted undue hardship. At this stage, I am not persuaded that DPE is reasonably certain to prove it could not reasonably accommodate Ms. Nixon to a point short of undue hardship.
IV CONCLUSION
[55] I deny the application to dismiss the complaint based on s. 27(1)(c) of the Code .
Ijeamaka Anika
Tribunal Member