BC Human Rights Tribunal

The Worker v. Translink Security Management Ltd., 2025 BCHRT 122

Date Issued: May 15, 2025
File: CS-002257

Indexed as: The Worker v. Translink Security Management Ltd., 2025 BCHRT 122

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:

The Worker
COMPLAINANT

AND:

Translink Security Management Ltd.
RESPONDENT

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

Tribunal Member: Theressa Etmanski

Counsel for the Complainant: Menachem Freedman

Counsel for the Respondent: Donald J. Jordan, K.C.

I INTRODUCTION

[1] The Worker alleges that her former employer, Translink Security Management Ltd. [ TSML ], discriminated against her in employment when they demoted her for failing to obtain her driver’s licence, despite knowing that she was participating in legal proceedings related to an abusive relationship, mental health challenges, and a concussion during the timeline they set for her. She says this violates s. 13 of the Code based on her sex, gender, marital status, mental disability and physical disability.

[2] TSML denies the allegations and applies to dismiss the complaint without a hearing pursuant to sections 27(1)(b) and 27(1)(c) of the Code . TSML says the facts alleged in the complaint do not contravene the Code , and there is no reasonable prospect the complaint will succeed.

[3] I find this application can most efficiently be addressed under s. 27(1)(c) of the Code . To decide this application, I must determine if the Worker has taken out of the realm of conjecture that she had the protected grounds of sex, gender, marital status, physical disability and mental disability at the time of the complaint, and whether any of these protected grounds were a factor in the alleged adverse treatment. To do so, I must also consider whether TSML knew or ought to have known about a need for accommodation in relation to any of these protected characteristics. I must also determine if TSML is reasonably certain to prove a defence of bona fide occupational requirement [ BFOR ] with respect to the driver’s licence requirement, including whether TSML accommodated the Worker to the point of undue hardship.

[4] For the following reasons, I deny the application. 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.

[5] Given my decision under s. 27(1)(c), I would also not dismiss the complaint under s. 27(1)(b), which requires only that a complainant alleges an arguable contravention of the Code for a complaint to move forward.

II Order limiting publication

[6] In rendering this decision, it is necessary to discuss the Worker’s experience of domestic violence in some detail, as it relates to the grounds of sex, gender and marital status. Publicizing these details raises potential safety concerns for the Worker. I am satisfied in these circumstances that the Worker’s privacy interests outweigh public interest in full access to the Tribunal’s process. Accordingly, on my own motion, with the consent of both parties, I have decided to order a limitation on the publication of the Worker’s name. I refer to the complainant as the “Worker” in this decision.

[7] This order is limited to this preliminary decision only. Should the matter proceed further in the Tribunal’s process, public decisions will identify the parties unless a further order limiting publication is sought.

III BACKGROUND

[8] TSML is an operating company of the South Coast British Columbia Transportation Authority, mandated to police the transit system in Metro Vancouver.

[9] The Worker was initially employed by TSML in a casual position. In early 2016, with the support of her supervisor, she applied for a full-time position as Court Liaison and Exhibits Custodian [ CLEC ].

[10] The job posting for the CLEC position states that a “Valid BC Driver’s Licence” is required. It further describes the position’s responsibilities, which include:

· Manage and monitor court related Transit Police files

· Monitor the service of TP subpoenas, and provide assistance and guidance to TP and Subsidiaries’ employees

· Liaise with police departments and court employees to ensure cooperation and assistance

· Visit police departments and courts to obtain assistance and information as required

· Prepare and maintain exhibits related files, records, ledgers and reports for the Transit Police

· Ensure the security and integrity of all exhibits and that they are administered in accordance with Transit Police policies and procedures and accepted Canadian evidential protocols.

[11] The Worker says she discussed with her supervisor the requirement in the job posting for a driver’s licence, and her supervisor told her that it was not actually required for the position so she should apply even if she did not have one. The Worker says that she did so based on this advice. However, by the time she was hired as a CLEC, her supervisor had left the job and TSML insisted that she obtain a driver’s licence. The Worker says TSML initially let her propose a timeline for accomplishing this, where the deadlines were estimates and could change depending on her success at each stage of the licensing process.

[12] TSML has provided correspondence confirming the Worker’s knowledge of the driver’s licence requirement at the time she was offered the CLEC position. The initial deadline for her Class 7 road test was August 2, 2017.

[13] Soon after beginning in the role of CLEC, the Worker says she disclosed to TSML that she had been in a five-year long abusive relationship with an RCMP officer, during which she experienced physical, sexual and emotional abuse, including threats of injury and financial ruin. She says it was with the support of her supervisor that she decided to leave the relationship and report her ex-partner to the police.

[14] The Worker says her mental health suffered significantly during this period. In or around October 2016, she says she began seeing a trauma psychologist. The Worker says it was all she could do to attend work and meet the basic needs of her and her son. She says she forgot about the timeline to obtain her driver’s licence as it had not been an issue in the performance of her job.

[15] In or about March 2018, the Worker says she submitted a pay equity complaint. In reviewing this issue, TSML became aware that the Worker did not yet have her driver’s licence and set a new timeline for her to complete this requirement. The parties agree that the Worker told TSML that she was under a high degree of stress related to her experience of domestic violence.

[16] TSML says it discovered around that time that the burden of travelling to different offices, police stations, and courthouses had been falling primarily on the other CLEC. When the other CLEC was not available, TSML says the Worker sought the assistance of other TSML employees to drive her to the required locations, which took them away from their regular duties. TSML set a new deadline for the Worker to successfully complete her Class 7 road test: April 27, 2019.

[17] The Worker obtained her learner’s licence in April 2018. Her first road test was scheduled for early April 2019. However, the Worker was summoned as a witness for a RCMP Code of Conduct hearing regarding her ex-partner, which was scheduled for the same day.

[18] Accordingly, the Worker says she requested an extension of the timelines to complete her road test set out by TSML. She provided a note from her psychologist in support of this request. As a result, the Worker says she was called into a meeting attended by TSML’s lawyer who she says shouted at her, blamed her for the situation, and accused her of intentionally orchestrating the scheduling conflict [ April Meeting ]. She says no one discussed accommodation with her or asked her for further information from her psychologist.

[19] The Worker was able to reschedule her road test appointment by a few days to still align with the April 27 deadline. However, she says due to the traumatic effects of the Code of Conduct hearing, she failed the test. TSML extended the timeline to allow her to retake the test after the 14-day wait period required by ICBC.

[20] After she booked her second road test for May 6, 2019, the Worker says she was informed that closing arguments for the Code of Conduct hearing would happen the same week, on or about May 9, 2019. She says she did not request an extension from TSML because of the lawyer’s conduct at the April Meeting. She again failed the road test due, she says, to the stress and anxiety regarding the upcoming hearing and the possible repercussions that would follow its conclusion.

[21] TSML again extended the timeline to allow the Worker to retake the test after the 30-day wait period required by ICBC. She scheduled her third road test for early June 2019.

[22] On or around May 26, 2019, the Worker hit her head at home and suffered a concussion. She says this was not her first concussion, which put her at increased risk of heightened symptoms and a longer period of recovery. TSML agreed to the Worker taking two weeks of medical leave and then placed her on a gradual return to work schedule.

[23] On or around May 31, 2019, the RCMP Code of Conduct decision was released. The Worker’s ex-partner was terminated from the RCMP. The Worker says she feared retaliation and was very afraid for her safety and that of her son’s. She says she informed TSML and a safety plan was put in place.

[24] On or around June 6, 2019, while on medical leave for her concussion, the Worker took and failed her third road test. As a result, TSML informed her that she would be removed from her full-time CLEC position and returned to the casual roster.

[25] On June 27, 2019, the Worker and her union filed a grievance. Included in the grievance was a letter from her psychologist which described psychological barriers she experienced to getting her driver’s licence. These included the impact of the domestic abuse and related legal proceedings on her mental health; as well as a traumatic fatal car accident she experienced during her childhood which caused her driving anxiety.

[26] A grievance meeting was held on or around July 5, 2019, in which the Worker alleges that TSML’s lawyer acted aggressively and made comments which she says belittled her and minimized her experience with domestic violence [ July Meeting ]. TSML denies these allegations and says that during this meeting the Worker accepted responsibility for not obtaining her driver’s licence on time, despite the extensions TSML had provided.

[27] The union subsequently withdrew the grievance for reasons not provided in the materials before me.

[28] On or around August 16, 2019, the Worker passed her road test and obtained a Class 7 driver’s licence.

[29] On or around May 5, 2020, TSML eliminated eight casual positions due to loss of transit funding related to the COVID-19 pandemic. The Worker’s position was one of the positions eliminated.

IV DECISION

[30] TSML applies to dismiss the Worker’s complaint on the basis that it has no reasonable prospect of success. 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. The onus is on TSML to establish the basis for dismissal.

[31] 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 .

[32] 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 .

[33] 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.

[34] To prove her complaint at a hearing, the Worker 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 TSML to justify the impact as a bona fide occupational requirement. If the impact is justified, there is no discrimination.

[35] TSML says the complaint has no reasonable prospect of success because the Worker has not established that she had one or more protected characteristics under the Code , or that there was any nexus between a protected characteristic and any adverse impact she experienced.

[36] The question of adverse impact is largely undisputed. The parties agree that TSML removed the Worker from her CLEC position because she had not obtained her driver’s licence within the timeframe they established. TSML transferred the Worker to a casual position. This position was eliminated by TSML on or around May 5, 2020.

[37] The Worker also alleges that she experienced an adverse impact because of comments made by TSML’s lawyer at both the April Meeting and the July Meeting. However, TSML disputes that any discriminatory comments were made.

[38] Finally, TSML says that this complaint has no reasonable prospect of success because it is reasonably certain to establish a BFOR defence at a hearing.

[39] Accordingly, I address the following issues in turn:

a. Has the Worker taken out of the realm of conjecture that:

i. she had one or more protected characteristics at the relevant time?

ii. she experienced an adverse impact from the April Meeting or the July Meeting?

iii. one or more of her protected characteristics were a factor in the alleged adverse impact(s)? And,

b. Is TSML reasonably certain to establish a BFOR defence at a hearing?

1. Has The Worker taken out of the realm of conjecture that she had one or more protected characteristics at the relevant time of the complaint?

[40] The Worker says her complaint is based on the protected characteristics of sex, gender, marital status, mental disability, and physical disability.

a. Sex, gender and martial status

[41] The Worker raises the grounds of sex, gender and marital status because she is a woman who experienced violence while in a long-term intimate relationship.

[42] TSML does not dispute that the Worker had the protected characteristics of sex, gender or marital status at the relevant time of the complaint; rather, it argues that she has not explained how these protected characteristics impacted her ability to successfully obtain her driver’s licence, or how they relate to the alleged remarks by TSML’s lawyer.

[43] TSML also does not dispute that the Worker experienced domestic violence. However, TSML says, although abhorrent, past experience of domestic violence is not a protected ground in and of itself under the Code . TSML notes that, despite voluminous human rights tribunal decisions across Canada, no tribunal has recognized:

a. mental issues stemming from intimate partner violence if the mental issues do not constitute a mental disability; or

b. the past experience of intimate partner violence as a continuing inherently gendered characteristic.

[44] Accordingly, TSML says the Worker’s condition must rise to the level of a mental disability within the meaning of the Code to be protected. To hold otherwise, it says, would be establishing a novel protected characteristic not found in the Code . TSML says that to decide the case on the basis of such a characteristic would be a reviewable error.

[45] The Worker disagrees and says that domestic violence is a form of gender-based violence, and this is sufficiently connected to her protected characteristics to constitute a breach of the Code .

[46] I find these arguments are more appropriately addressed within the analysis of nexus, which is set out below. At this stage of proceedings, I am satisfied that the Worker has taken out of conjecture that, as a woman in a long-term intimate relationship, she had the protected characteristics of sex, gender and marital status at the time of the complaint.

a. Mental disability

[47] TSML says the complaint refers only to “mental health issues,” including anxiety arising from childhood trauma, as well as recent domestic violence, but does not provide particulars of a mental disability. According to TSML, references to stress, anxiety driving, or seeing a psychologist do not lead to the conclusion that she has a mental disability. TSML says the Worker has not put forward any objective evidence diagnosing or identifying a mental disability.

[48] The Code does not define what constitutes a disability. As with all terms in human rights legislation, it is interpreted liberally in a manner that best achieves the broad public purposes of the Code : British Columbia Human Rights Tribunal v. Schrenk , 2017 SCC 62 at para. 31. Generally speaking, the Tribunal considers the degree of impairment and functional limitation arising from the impairment, and the social, legislative or other response to that impairment or limitation: Morris v. BC Rail , 2003 BCHRT 14 at para. 214.

[49] Notwithstanding its broad and liberal interpretation, “disability” does not capture every medical problem. The Tribunal will consider factors such as “whether the condition entails a certain measure of severity, permanence and persistence”: Viswanathapuram v. Canadian Alliance of Physiotherapy Regulators , 2017 BCHRT 29 at para. 40 . Importantly, this case law does not establish that a complainant must provide a specific diagnosis to meet the threshold of “disability” within the meaning of the Code , but rather sufficient information about the nature of their condition to assess the factors set out above.

[50] The Worker says that her mental health was profoundly affected after she reported her ex-partner to the police, and the effects of the abuse fully surfaced. As a result, she says she found it more difficult to organize her affairs and meet various domestic and employment commitments, including obtaining her driver’s licence. The Worker says she began seeing a trauma psychologist on or around October 2016 and continued seeing the psychologist throughout the relevant period. She states that she informed TSML that she was seeing a trauma psychologist for treatment related to her abusive relationship.

[51] In her sworn statement the Worker explains:

I was extremely depressed and from fall of 2016 and through summer of 2018, there were large periods of time when I could barely muster the energy to go to work and care for my son, and could not accomplish anything beyond those basic minimum needs.

[52] The Worker further says that she suffered “traumatic effects” from participating in the RCMP Code of Conduct hearing, including lack of sleep and anxiety.

[53] In addition, the Worker says she had anxiety specifically around driving due to a traumatic childhood experience in which she was involved in a car accident, and witnessed another driver die from his injuries.

[54] The Worker has provided a copy of a letter from her psychologist, dated June 18, 2019, which she gave to her employer. The letter does not list a specific diagnosis but states that she is “working on recovering from the considerable psychological harm stemming from the [abusive] relationship,” and describes the past traumatic event which resulted in “anxiety related to driving.”

[55] TSML says it interpreted this letter as the Worker’s having overcome her psychological issues through therapy. However, I am not persuaded, based on a plain reading of the letter, that TSML is reasonably certain to prove at a hearing that this letter did not indicate that the Worker had an ongoing mental health condition.

[56] Given the low threshold at this stage of proceedings, I am satisfied that the Worker has taken out of the realm of conjecture that she had a mental disability at the time of the complaint. She has provided evidence to support that she had depression, anxiety, and other trauma-related psychological issues.

[57] In making this finding, I distinguish these circumstances from cases such as Vandale v. Town of Golden and others , 2009 BCHRT 219, Dow v. Summit Logistics and RWU Local 580 , 2006 BCHRT 158, and Ford v. Peak Products Manufacturing and others , 2009 BCHRT 191, where the Tribunal has found that mere reference to stress, anxiety and depression, without more, are not sufficient to establish a mental disability. Here, the Worker has alleged facts detailing the severity and persistence of her mental health condition, as well as the degree of impairment she experienced, and the specific treatment she was receiving.

[58] Finally, I note that in this case, where an intersectional approach to the complainant’s protected characteristic is likely necessary to conduct a global assessment of the circumstances alleged, there would be little value at this preliminary stage to parse out and dismiss a potentially relevant ground of discrimination: Catchot v. Western Holistic Health Inc. dba Canadian School of Natural Nutrition and another , 2024 BCHRT 118 at para. 20; Fraser v. Tolko Industries Ltd ., 2021 BCHRT 118 at para. 214.

a. Physical disability

[59] The parties agree that in May 2019, the Worker suffered a concussion. In her sworn statement, the Worker says this was her fifth or sixth concussion and she experienced symptoms including headaches, blurry vision, dizziness, sensitivity to noise, ringing in ears, fogginess, impatience and mood changes. She says that because of the previous brain trauma she had experienced, she was more vulnerable and experienced heightened symptoms and a longer period of recovery. There is no dispute that the Worker informed her employer of her injury and symptoms and TSML granted her medical leave and a gradual return to work.

[60] The Worker says these are sufficient facts to establish that her concussion was a physical disability, recognizing the high degree of impairment and functional limitation she experienced: Bayongan v. Shimmura , 2023 BCHRT 27 at paras 23-24.

[61] TSML disagrees. It says the Worker did not request accommodation for concussion with respect to her driver’s test, and that both parties treated the Worker’s concussion as a transitory injury, not a physical disability: Li v. Aluma Systems Inc ., 2014 BCHRT 270 at para. 41.

[62] Generally speaking, “disability” does not include conditions that are temporary and treatable, like a cold or flu: Goode at para. 105; Morris at para. 209. The Supreme Court of Canada explains that these types of conditions are excluded because “there is not normally a negative bias against these kinds of characteristics or ailments”: Québec (Commission des droits de la personne et des droits de la jeunesse) v. Boisbriand (City) , 2000 SCC 27 at para. 82. The focus of the analysis in the human rights context is properly on “human dignity, respect, and the right to equality rather than a simple biomedical condition”: Morris at para. 209, citing Boisbriand , at para. 77. The Tribunal has previously held that while concussions are not typically the type of medical condition that attracts societal stigma, depending on the facts of the individual case, concussions can nevertheless amount to a disability under the Code : Heitner v. BC Provincial Renal Agency and another , 2019 BCHRT 130 at paras. 82 and 131.

[63] While the level of permanence is a consideration, this Tribunal has held that it is not necessary that a medical condition be permanent to amount to a disability for the purposes of the Code : Wali v. Jace Holdings Ltd ., 2012 BCHRT 389, at para. 82. The Code ’s protection also extends to persons who suffer from temporarily disabling conditions: Goode v. Interior Health Authority , 2010 BCHRT 95 at para. 104. However, simply because a person is on a medical leave from work due to a medical condition does not mean the condition will automatically amount to a disability for the purposes of the Code . In Goode , the Tribunal held that “employees may be absent from work for a variety of temporary illnesses that do not necessarily constitute disabilities”: at para. 105. Each case must be assessed individually.

[64] In this case, I am not persuaded on the evidence before me that the Worker’s concussion was transitory, like a cold or flu, or that the parties were treating it that way. For example, emails between HR and the Worker, provided by TSML, indicate that discussions regarding potential modifications to her workplace schedule and conditions were taking place in early June 2019, in view of the Worker’s reported symptoms. The parties agreed that the Worker would seek information from her health care provider to inform how to proceed. It would be open to the Tribunal to find that this evidence suggests that TSML was aware of a potential duty to accommodate the Worker with respect to this medical condition.

[65] Given the sworn statements setting out the severity of symptoms and the degree of functional impairment the Worker experienced, I am satisfied that she has taken out of the realm of conjecture that she had a physical disability at the relevant time of the complaint.

2. Has The Worker taken out of the realm of conjecture that she experienced an adverse impact related to comments by TSML’s lawyer?

[66] The Worker says that at the April Meeting, TSML’s lawyer shouted at her, and said the scheduling conflict between the Code of Conduct hearing and her road test was her fault and intentional. She says these comments made her feel that TSML thought she was a “liar and a cheat” because she was asking for accommodation. She further says it made her feel as though her “trauma was so insignificant that it was not even worth delaying a road test which wasn’t important for [her] job.” The Worker says this was particularly hurtful at a time when her story was also being questioned in the RCMP Code of Conduct process.

[67] The Worker further says she experienced an adverse impact when, at the July Meeting, TSML’s lawyer made remarks to the effect of:

a. “If it was me, I would have been fine.”

b. “Why didn’t you tell us about [the domestic abuse] sooner.”

c. “You came to work, so clearly you were OK.”

[68] The Worker says these comments minimized her experience and demonstrate discriminatory assumptions and stereotypes about survivors of domestic violence and individuals with mental health issues. She further says that the comments show a lack of understanding or sympathy for the Worker’s situation and the challenges she was facing. She says they were particularly significant due to the power imbalance between her and TSML, and the fact that they were presented as the employer’s position with respect to her request for accommodation and the basis for her dismissal from her fulltime position.

[69] She alleges that she suffered mental distress and a setback in her mental health treatment as a result of this treatment.

[70] TSML denies that its lawyer made these remarks. It says that the statements from the July Meeting have been paraphrased and provided without sufficient context. Further, TSML says the allegation about these comments is untimely; however, it did not apply to dismiss pursuant to s. 27(1)(g) of the Code although it could have done so.

[71] The parties have provided conflicting evidence with respect to the April Meeting and July Meeting, which I find to be a foundational issue of credibility. The resolution of these conflicting accounts is relevant to both the issue of whether the Worker experienced an adverse impact from these meetings, as well as providing important context to the issue of TSML’s duty to accommodate. I am unable to resolve this conflict on this application to dismiss and I find a hearing is necessary to fully explore and test this evidence: Francescutti at para. 67.

3. Has The Worker taken out of the realm of conjecture that one or more of her protected characteristics was a factor in the alleged adverse impact?

[72] It is TSML’s burden on a dismissal application to persuade the Tribunal that the Worker has no reasonable prospect of proving a nexus between her protected characteristics and the demotion from her role as CLEC. TSML says the Worker has no reasonable prospect of proving a connection because she has not provided sufficient particulars. Further, TSML says that the Worker never brought to its attention facts relating to discrimination on the alleged protected grounds.

[73] For example, TSML says that the Worker has not provided any explanation of how her sex, gender or marital status affected her ability to successfully take her driving tests.

[74] For her part, the Worker says the nexus between the adverse impacts and her sex, gender and marital status is grounded in her experience of domestic violence and its aftermath. She explains that during the relevant period of this complaint, she was dealing with the impact of physical, sexual and emotional abuse at the hands of her former romantic partner. She says that during their relationship, her ex-partner constantly threatened her with physical injury or financial ruin if she spoke to anyone about him. She describes him as an RCMP officer who is “a known stalker with a large firearms collection,” and who threatened to track her, including through her driver’s licence.

[75] The Worker cites violent incidents in both April 2016 and August 2016, while she was already working in the CLEC position. She says that it was with the support of her supervisor that she eventually reported her ex-partner to the police. Subsequently, she was involved in a “years-long legal odyssey” in which she was repeatedly subjected to personal questioning, as the Crown considered criminal charges and the RCMP pursued a Code of Conduct investigation against her ex-partner. The Code of Conduct hearing resulted in the termination of her ex-partner’s employment, and the Worker says she was very scared of retaliation.

[76] The Worker says that these circumstances, combined with her physical and mental disabilities, impacted her ability to obtain her driver’s licence during the relevant period. Specifically, the timing of Code of Conduct hearing, in which she was cross-examined as a witness, coincided with her road tests, and impacted her ability to be successful at a very stressful time.

[77] Discrimination can take many forms including indirect discrimination where an otherwise neutral policy may have an adverse impact on someone because of a protected characteristic. Human rights jurisprudence focuses on the discriminatory effects of conduct, not on direct causes or intention to discriminate: Quebec (Commission des Droits de la personne et des droits de la jeunesse) v. Bombardier Inc. , 2015 SCC 39 at para. 49. For the purposes of this application, the Worker only needs to establish, beyond the realm of conjecture, that one or more of her protected characteristics were a factor in the demotion.

[78] I find the reasoning of this Tribunal in Kirchmeier obo others v. University of British Columbia (No. 4) , 2021 BCHRT 149, is relevant to this analysis. There, the Tribunal explained:

[110] In this case, it would be open to the Tribunal to conclude that the connection between sex and sexual misconduct is of a similar, commonly understood, nature such that the requisite nexus can be inferred from the disproportionate representation of women among people impacted – directly and indirectly – by sexual misconduct, and “common sense” about how that disproportionate representation is significant from a human rights standpoint: VANDU at para. 95; Fraser at paras. 61-67; see also Kirchmeier (No. 1) at para. 48. Indeed, there is ample case law to support a discriminatory connection between sex and sexual harassment or misconduct: eg. Janzen v. Platy Enterprises Ltd. , 1989 CanLII 97 (SCC), [1989] 1 SCR 1252; MacGarvie v. Friedman , 2012 BCCA 445 at para. 32. It is beyond conjecture, in my view, to take that one step further and posit a discriminatory connection between sex and the impacts of how a service provider responds to sexual misconduct or harassment.

[79] In my view, it would be similarly uncontroversial to conclude that domestic violence, or intimate partner violence, is a form of gender-based violence that has a disproportionate impact on women. The Worker cites the BC Office of the Human Rights Commissioner’s 2023 publication “From hate to hope: Report of the Inquiry into hate in the COVID-19 pandemic”, which describes this impact as follows:

Intimate partner violence is violence that is committed against a person by someone with whom they have or had a close and personal intimate relationship. Intimate partner violence can happen in a marriage, common-law or dating relationship, in a heterosexual or homosexual relationship, at any time in a relationship, including after it has ended, and whether partners live together or are sexually intimate with one another. It takes many forms, including physical, sexual, emotional (psychological), spiritual or financial harm. While intimate partner violence can happen to anyone, women and girls are disproportionately targeted, and men are disproportionately the perpetrators.

Gender-based violence is rooted in gender inequality, abuse of power, patriarchal systems and harmful gender norms. Ultimately, gender-based violence is about power and control. Gender-based violence causes physical, emotional and social harm to those who experience and witness it and can be deadly.

[80] The Worker submits that the impact that domestic violence can have on victims’ employment has been formally recognized through recent changes to the Employment Standards Act [ ESA ]. Of note, section 52.5(3) of the ESA provides for paid leave for an employee experiencing domestic or sexual violence for various purposes, including “preparing for or participating in any civil or criminal legal proceeding related to the domestic or sexual violence.” The 2020 press release [i] regarding these changes, also cited by the Worker, provides the following relevant statistics:

· 82% of working people who have experienced domestic violence said it interfered with their work performance.

· About two-thirds of those who have faced domestic violence in Canada are women.

· 87% of sexual assaults reported to police are reported by women.

[81] While other factors are relevant, and an intersectional lens is necessary to fully understand the impact of this phenomenon, I am satisfied based on the information before the Worker has taken out of the realm of conjecture that domestic violence is connected to sex and gender, and like sexual harassment, is a form of sex discrimination: Janzen v. Platy Enterprises Ltd ., [1989] 1 SCR 1252.

[82] I am further satisfied, in view of the information provided, that there is a logical connection between domestic violence and the ground of marital status. By its very nature, this type of violence occurs within the context of an intimate relationship, whether it be characterized by marriage, living common-law, or otherwise. In this case, the domestic violence occurred in the course of a long-term romantic relationship. The Worker’s evidence is that the impact of this relationship, in particular the violence and threats that occurred within the context of that relationship, continued after the relationship ended as she was involved in legal proceedings and continued to fear for her safety.

[83] Accordingly, taking a liberal and purposive interpretation of the Code , I am satisfied that the Worker has taken the question of nexus to the grounds of sex, gender and marital status out of the realm of conjecture. The Worker’s evidence is that her experience of domestic violence and its aftermath was connected to her ability to obtain her driver’s licence within the established timeframe. There is no dispute that TSML was aware of these circumstances at the relevant time, or that the Worker requested an extension to complete her first road test on this basis. The Worker’s inability to fulfill the driver’s licence requirement on time directly led to her demotion.

[84] With respect to the Worker’s alleged mental and physical disabilities, TSML says that she did not provide any information diagnosing a mental disability or referencing any barriers to obtaining a driver’s licence at the relevant time of the complaint.

[85] I understand the Worker’s position to be that she was asking for an accommodation with respect to her mental health, sex, gender and marital status when she requested an extension for her first road test due to the Code of Conduct hearing. TSML agrees that the Worker provided a letter from her psychologist in support of this request. The Worker alleges that she did not request a further extension in connection to the road tests because of how TSML treated her in the April Meeting. She says that TSML was at all times aware of the circumstances of her participation in the Code of Conduct hearing and that it was impacting her mental health. The parties agree that the Worker subsequently provided a second letter from her psychologist which described the psychological issues she had experienced, although they disagree about whether the letter indicated that the Worker had a mental disability which impacted her ability to obtain a driver’s licence.

[86] Regarding her concussion, the Worker says TSML knew about the concussion and the symptoms she was experiencing; that one of the triggers for the concussion was stress; and that the Code of Conduct hearing was a very stressful time for her. TSML was also aware that she was on medical leave for her concussion at the time her third road test was scheduled. Emails between the Worker and Human Resources have been provided which support these assertions. The Worker says her driving instructor advised her not to take the road test at this time, but she felt she had no choice because TSML had previously been unwilling to extend the deadline when she requested it.

[87] I do not agree with TSML that these constitute new allegations; rather, I find they are further particulars of the allegations properly within the scope of the complaint.

[88] On review of all the evidence before me, I am not persuaded that the Worker has no reasonable prospect of establishing a connection between her mental and physical disabilities and the adverse impact. Rather, I find the information provided takes it out of the realm of conjecture that both her mental disability and her concussion were factors in her ability to pass her road test at the relevant time, and are therefore connected to the adverse impact.

4. Is TSML reasonably certain to establish a BFOR defence at a hearing?

[89] TSML can still succeed on this dismissal application if it can establish it is reasonably certain to prove a justification defence at a hearing, including that it met any duty they had to accommodate the Worker: Purdy v. Douglas College and others , 2016 BCHRT 117 at para. 50.

[90] To justify the adverse impacts at a hearing, TSML would have to prove that: (1) it adopted the standard for a purpose rationally connected to the performance of the job, (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 their duty to accommodate the Worker 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 .

[91] Based on the information before me, even if TSML were to establish the first two elements of Meiorin , I am not satisfied at this stage that it is reasonably certain to establish that the driver’s licence requirement was reasonably necessary to a legitimate purpose, or that TSML accommodated the Worker to the point of undue hardship.

[92] TSML says the driver’s licence requirement is necessary to the role of CLEC in order to fulfill the integral job duty of travelling to different offices, police stations, and courthouses in the Lower Mainland to pick up evidence and obtain statements. Without a driver’s licence, TSML says a CLEC cannot independently fulfill the required job duties of the position.

[93] Due to the Worker’s lack of a driver’s licence, TSML says the burden of the duty of travelling to different offices, police stations, and courthouses had fallen solely on the other CLEC. When the other employee was not available to fulfill the duty of travelling, the Worker sought the assistance of other employees, including on-duty police officers, to drive her to the locations she was required to attend to pick up evidence. According to TSML, this took other employees away from their job duties and defeated the purpose of hiring two CLECs. TSML says it suffered undue hardship as a result of these arrangements, as other employees were taken away from their regular job duties.

[94] Finally, TSML says it provided the Worker with reasonable accommodation by twice extending the deadline for her to complete her road test after she was unsuccessful, and by developing a gradual return to work plan with respect to her concussion. It says that the Worker did not request any further accommodation, even though she had previously been made aware of the company’s accommodation policy. Further, TSML says there was no basis on which a duty to inquire may have been engaged, as the Worker’s behaviour never “markedly departed from the ordinary norms of human behaviour.”

[95] The Worker says that she requested an accommodation from having to complete the road test at the same time she was participating in the Code of Conduct meeting, and TSML’s response was so harmful at the April Meeting that she did not request any further accommodation with respect to the driver’s licence requirement. Nevertheless, the Worker says TSML had a clear duty to inquire about her need for further accommodation before demoting her from her full-time position.

[96] Further, the Worker disputes that the driver’s licence was an integral element of the CLEC position or that her not meeting this requirement caused TSML undue hardship. The Worker says TSML relies on vague hearsay assertions that her lack of a driver’s licence placed a burden on other employees and provides no concrete evidence as to when that burden transcended “mere inconvenience” and began to have a substantial effect on the employer’s business. The Worker says that the preponderance of evidence is that the driver’s licence requirement was not integral to the job. She states:

a. The job description does not make any mention of picking up evidence or obtaining statements.

b. It is the role of a police officer, not a CLEC, to obtain a statement.

c. Evidence was not held at “different offices, police stations and courthouses”, it was held at one other office. Picking up evidence from that office was the role of the Exhibits/Court Liaison Clerk, not the CLEC.

d. The Worker only applied for the position after her employer confirmed that her lack of a driver’s licence would not actually be an issue. Had it been an issue, she would have maintained her application for another position that did not require a licence.

e. There is no evidence of the Worker’s lack of a driver’s licence ever being an issue in performance evaluations or discipline over her more than three years of employment in the role. To the contrary, she received consistently positive performance reviews.

f. The Worker’s manager’s evidence is that she was not aware that the complainant did not have a driver’s licence for the first six months, but she does not explain how she was unaware that an employee she managed was consistently failing to fulfill “integral job duties” and causing hardship to other employees. The Worker’s lack of driver’s licence only became an issue after she had made a pay equity complaint.

g. The Worker says that when the licence issue did come up, a TSML Human Resources advisor admitted that the requirement was not necessary for her primary role and did not provide any reason for the need to complete it.

[97] TSML disputes some of the above facts set out by the complainant. For example, it disputes that Human Resources advised the Worker that a driver’s licence was not necessary for her job, and notes that this contradicts a previous claim made by the Worker. It says the Worker’s statement that it was the role of the Exhibits/Court Liaison Clerk to pick up evidence is also internally inconsistent, as she claims to have been fully qualified for that position as well. Further, TSML says that just because the Worker’s manager was not aware that she was having other employees fulfill her job responsibilities does not mean those responsibilities were not integral.

[98] I am unable to resolve these disputes at this time, and a hearing is necessary to resolve the conflicts in the evidence regarding these circumstances. Nevertheless, on review of all the information before me, I am not satisfied that TSML is reasonably certain to establish at a hearing that the driver’s licence requirement was reasonably necessary to the performance of the job of CLEC, or that it could not have further accommodated the Worker without experiencing undue hardship.

[99] There is insufficient information before me to support TSML’s undue hardship assertion. For example, TSML has not explained how often the Worker could not fulfill the driving requirement of her job, what business or financial impact it had when other employees were taken away from their regular duties to assist her, or how it determined that it could not allow the Worker an additional attempt to complete her road test, for instance, by allowing her to wait until after her concussion had healed and the impacts of the Code of Conduct hearing had dissipated.

[100] The evidence supports that TSML provided its accommodation policy to all employees in or around 2017, and the Worker did not explicitly request accommodation with respect to the driver’s licence requirement other than the request leading to the April Meeting. I also accept that the Tribunal could find on the evidence that TSML accommodated the Worker by allowing her an extension to re-take her driver’s test on two occasions. However, I am not persuaded at this stage that TSML did not have a duty to inquire about a need for further accommodation prior to demoting the Worker.

[101] Where an employer is in possession of information that raises the possibility that an employee requires accommodation, the employer is under a duty to make inquiries with respect to the need for accommodation, whether or not the employee has formally notified the employer that they require such accommodation: Willems-Wilson v. Allbright Drycleaners Ltd ., (1997) 32 C.H.R.R. D/71 (BCCHR). In cases where an employee has not formally notified the employer of a need for accommodation, the type of conduct that could trigger a duty to inquire will depend on the circumstances of each case. The duty to inquire will only be engaged if there is some adverse consequence that the employee may experience if accommodation is not provided.

[102] While the duty to inquire may arise if an employee’s behaviour “so markedly departs from the ordinary norms of human behaviour”, these are not, as TSML suggests, the only circumstances that would trigger an employer’s duty.

[103] Here, there are undisputed facts before me to support, beyond conjecture, that TSML had a duty to inquire about the intersectional impact of the Worker’s sex, gender, marital status, mental disability, and physical disability on her ability to fulfill the driver’s licence requirement at the relevant time, prior to taking action that would cause her an adverse consequence in employment. It is undisputed that TSML was aware of the temporal proximity of the Code of Conduct proceedings and the Worker’s road tests, and that those proceedings were having a negative impact on her. It is also undisputed that the Worker was on medical leave for her concussion at the time of her third road test, and TSML was aware that she was still experiencing symptoms. It would be open to the Tribunal to find that these factors could have engaged TSML’s duty to inquire, and I am therefore not persuaded at this time that TSML is reasonably certain to establish at a hearing that it explored all reasonable accommodation options with the Worker before demoting her.

[104] In these circumstances, I am not persuaded that TSML is reasonably certain to prove that the driver’s licence requirement was a bona fide occupational requirement.

V CONCLUSION

[105] The application to dismiss is denied.

[106] I encourage the parties to make use of the Tribunal’s mediation services to try to resolve the complaint.

Theressa Etmanski