Smith v. Aecon-Flatiron-Dragados-EBC Partnership and another, 2025 BCHRT 126
Date Issued: May 23, 2025
File: CS-004370
Indexed as: Smith v. Aecon-Flatiron-Dragados-EBC Partnership and another, 2025 BCHRT 126
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:
Maxwell Smith
COMPLAINANT
AND:
Aecon-Flatiron-Dragados-EBC Partnership and
Construction Maintenance Allied Workers, Local 99
RESPONDENTS
REASONS FOR DECISION
APPLICATION TO DISMISS A COMPLAINT
Section 27(1)(c)
Tribunal Member: Devyn Cousineau
For the Complainant: No submissions
Counsel for Aecon-Flatiron-Dragados-EBC Partnership: Graeme McFarlane and Andrew Peng
Counsel for Construction Maintenance Allied Workers, Local 99: Sherry Shir
I INTRODUCTION
[1] This is a decision about whether to dismiss Maxwell Smith’s human rights complaint against his former employer, Aecon-Flatiron-Dragados-EBC Partnership [ Employer ], and his former union, Construction Maintenance Allied Workers, Local 99 [ Union ], without a hearing.
[2] Mr. Smith worked for the Employer as a carpenter at the Site C Clean Energy Project. In his complaint against the Employer, he alleges that the Employer discriminated against him based on a mental and physical disability when: (1) it refused to allow him more frequent breaks to accommodate his type 2 diabetes; (2) his foreman harassed him; and (3) his employment was terminated. He says this is a violation of s. 13 of the Human Rights Code.
[3] The Employer denies discriminating. It says that Mr. Smith never told anyone in management that he had diabetes requiring accommodation. It denies that the foreman harassed him, and says he was disciplined and terminated for his conduct on the worksite. It asks for the complaint to be dismissed because it has no reasonable prospect of success: Code, s. 27(1)(c).
[4] During his employment, Mr. Smith was a member of the Union. In his complaint against the Union, Mr. Smith alleges that the Union discriminated against him based on his mental and physical disability when its Business Agent: (1) told him the Employer did not have to accommodate his diabetes and did not help him seek an accommodation; (2) agreed with discipline issued by the Employer; and (3) treated him badly and withdrew its grievance regarding his termination. He says this is a violation of ss. 13 and/or 14 of the Code.
[5] The Union denies discriminating. The Business Agent says he advised Mr. Smith about how to request an accommodation from the Employer. He says that the Union grieved Mr. Smith’s termination but ultimately withdrew the grievance after he stopped communicating with the Union. It says that none of Mr. Smith’s allegations, if proven, could violate the Code. It asks for the complaint to be dismissed because it has no reasonable prospect of success: Code, s. 27(1)(c).
[6] Mr. Smith did not make submissions in response to the Respondents’ dismissal applications. The Tribunal’s case manager told him that the Tribunal could consider accepting a late-filed submission. In response, Mr. Smith emailed to complain about delay and unfairness, concluding “this is lazy casework”. He did not indicate that he wanted to respond to the application or ask for an extension. In this situation, I am satisfied that he had an opportunity to respond to the application and chose not to.
[7] Based on the evidence the parties have presented, I am satisfied that Mr. Smith’s complaint has no reasonable prospect of success. It is dismissed.
II DECISION
[8] The Respondents apply to dismiss Mr. Smith’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.
[9] 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.
[10] 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 .
[11] 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 .
[12] 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.
[13] I begin with Mr. Smith’s complaint against the Employer.
III Complaint against the Employer
[14] To succeed in his complaint against the Employer at a hearing, Mr. Smith will have to prove:
a. He has a physical disability. At this stage, the Employer does not dispute that he has type 2 diabetes, and that is a physical disability. I accept that he may be able to prove this.
b. He has a mental disability. In his complaint, Mr. Smith describes his mental disability as “harassment and bullying” and says that he has been traumatized by events in his workplace and thinks he has PTSD. The Employer disputes that Mr. Smith will be able to prove a mental disability.
c. He was treated adversely in his employment, and his disabilities were a factor. Based on the allegations in his complaint, this includes:
i. timing of lunch breaks did not allow him to eat frequently enough to manage his diabetes. The Employer does not specifically dispute this, but says it was not aware of the issue.
ii. Bullying and harassment by his foreman. The Employer denies that the foreman bullied or harassed Mr. Smith. Alternatively, it says there is no evidence that any of the alleged incidents were connected to a disability.
iii. Termination of his employment. The Employer agrees that Mr. Smith’s employment was terminated, but says that he will not be able to prove that his disabilities were a factor in circumstances where they had a non-discriminatory explanation for the termination.
Moore v. British Columbia (Education), 2012 SCC 61 at para. 33.
[15] If Mr. Smith proves the elements of his complaint, then the burden shifts to the Employer to justify any adverse employment impacts as a bona fide occupational requirement: 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 . Although the Employer does not specifically advance this defence, one of its main arguments relates to the defence of reasonable accommodation. The Employer argues it is reasonably certain to prove that Mr. Smith did not disclose that he had diabetes and required accommodation and, in these circumstances, its duty to accommodate him was not triggered: Klewchuk v. City of Burnaby (No. 6), 2022 BCHRT 29 at para. 367. For the purpose of this application, Mr. Smith’s complaint has no reasonable prospect of success if the Employer is reasonably certain to prove this defence: Purdy v. Douglas College and others , 2016 BCHRT 117 at para. 50.
[16] I will consider each of Mr. Smith’s allegations in turn. In doing so, I consider the information Mr. Smith has presented in his complaint form, filed June 25, 2021, and amendment, submitted by email on January 17, 2022. I also consider the Employer’s response to the complaint and its argument and evidence submitted in support of this application. I only set out what is important to my decision. I make no findings of fact.
A. Breaks
[17] Mr. Smith says he has type 2 diabetes. Around March 2021, he was assigned to work in a new crew under a new foreman, who I will refer to as “the Foreman”. The Foreman is a member of the bargaining unit.
[18] Mr. Smith says he told the Foreman when he started that he was a type 2 diabetic. The Foreman says that Mr. Smith never, at any point, told him he had diabetes.
[19] Mr. Smith says that, because of his diabetes, he is required to snack every two or three hours. He says that, after his assignment to the Foreman’s crew, his first break was not for four hours. He says that he cannot go this long without eating, or he will get a headache and his organs could be damaged.
[20] I accept that Mr. Smith may be able to prove the elements of his case regarding this allegation: he has diabetes, and because of his disability-related need to snack frequently, he was adversely impacted by a four hour long stretch between breaks. However, based on the evidence before me, I am satisfied that the Employer is reasonably certain to prove a defence.
[21] To prove a defence of bona fide occupational requirement, the Employer must prove;
a. Valid purpose: it was applying a workplace standard adopted for a purpose rationally connected to the performance of the employee’s job or function. In this case, the workplace standard is the timing of breaks. I accept the Employer is reasonably certain to prove this is rationally connected to Mr. Smith’s job.
b. Good faith: it adopted the workplace standard in an honest and good faith belief that it was necessary to fulfil its valid purpose. I accept the Employer is reasonably certain to prove its break schedule was adopted in good faith. There is no evidence to suggest otherwise.
c. Reasonable necessity and accommodation: the standard was reasonably necessary to accomplish its purpose and the Employer discharged its duty to accommodate Mr. Smith to the point of undue hardship. As in most cases, this is where the dispute lies.
Meiorin at para. 54; Ciliberto v. Tree Island Industries Ltd ., 2024 BCHRT 87 at para. 27
[22] The Employer says that Mr. Smith never disclosed that he had diabetes, or that the timing of his breaks was negatively impacting him because of his diabetes. In this circumstance, he failed to bring forward the “facts relating to discrimination” and trigger an accommodation process: Central Okanagan School District No. 23 v. Renaud, [1992] 2 SCR 970. It points to the following evidence:
a. In his “New Hire Orientation form”, Mr. Smith indicated that he had no medical conditions that may impact his ability to safely perform all aspects of his work, was not taking any medication that could impact his ability to work safely, and could perform work at heights, in confined spaces, on uneven ground, in inclement weather, and could do shift work. He did not disclose he had diabetes or required frequent snack breaks.
b. The Project Safety Manager, who was responsible for overseeing accommodation requests, has sworn an affidavit saying that he was never aware that Mr. Smith had a medical condition requiring accommodation.
c. The only person that Mr. Smith says he told is the Foreman, who is a member of the bargaining unit and not in management. As I have said, the Foreman disputes that Mr. Smith told him he had diabetes. In any event, Mr. Smith does not say he told the Foreman that he needed more frequent breaks because of his diabetes.
[23] Aside from saying he told the Foreman he was diabetic, Mr. Smith does not say he told any of his supervisors or managers that he required more frequent breaks because of a disability. Even if the Employer knew he had diabetes, this is not enough on its own to trigger an accommodation process. Employees are expected to tell their employer if a disability is interfering with their work: Klewchuk at para. 416.
[24] I am satisfied that the Employer is reasonably certain to prove that its accommodation duties were not triggered in circumstances where there is no evidence that Mr. Smith told the Employer he required accommodation related to his diabetes. Specifically, there is no evidence Mr. Smith told the Employer he could not adhere to the break schedule because he needed to eat to manage his diabetes. This allegation has no reasonable prospect of success and is dismissed.
B. Bullying and harassment
[25] Mr. Smith alleges that the Foreman bullied and harassed him by calling him a “whiner”, “stupid”, yelling at him to get back to work, slamming the door, and yelling (about him) “I am fucking tired of babysitting you people”. He also alleges that the Foreman followed him into a change room and watched him change.
[26] The Foreman denies all these allegations. After Mr. Smith made an internal harassment complaint against the Foreman, the Employer collected witness statements from other employees. It has submitted these statements in this application. All the statements indicate that other employees did not observe the Foreman harassing Mr. Smith as alleged or at all. Further, in affidavits filed by both Respondents, affiants say there is no “change room” and that Mr. Smith was in fact changing in an open coat room connected to the lunchroom. They have submitted photographs corroborating this.
[27] In this application, I cannot decide whether the Foreman said the things alleged or not. However, in my view, I do not have to. Even if Mr. Smith could prove that the Foreman harassed him as alleged, he has not explained how any harassment connects to his diabetes or a mental disability. There is no evidence before me capable of supporting that connection. As I understand it, Mr. Smith says that the Foreman caused his mental health to suffer. However, this is not evidence of discrimination. In Vandale v. Town of Golden and others, 2009 BCHRT 219, the Tribunal explained:
In essence, Ms. Vandale alleges that [a coworker and manager] harassed her, and that that harassment led to stress and anxiety. Assuming that to be true, the fact that particular conduct results in an individual experiencing stress and anxiety, or even a mental disability, does not mean that that conduct constitutes discrimination on the grounds of mental disability. Ms. Vandale’s allegation is that the respondents caused her to suffer stress and anxiety, not that they discriminated against her because of or in relation to the stress and anxiety she alleges she experienced. An allegation of intentional infliction of mental distress of the kind Ms. Vandale makes might be a tort or some other kind of legal wrong; it is not a human rights complaint. [para. 43]
To the extent that Mr. Smith is arguing that the Employer discriminated against him by causing him to experience stress and anxiety, then – applying the reasoning in Vandale – this allegation has no reasonable prospect of success.
[28] This allegation is dismissed.
C. Termination of employment
[29] Mr. Smith’s employment was suspended and then terminated effective May 29, 2021. He alleges that he was terminated because he made a harassment complaint about the Foreman.
[30] On its face, this allegation has no reasonable prospect of success because Mr. Smith has not explained how his physical or mental disability was a factor in the decision to terminate his employment.
[31] In addition, the Employer has submitted evidence which I accept is reasonably certain to prove a non-discriminatory reason for the termination: The Employee v. The Resort , 2019 BCHRT 270. This includes:
a. Previous discipline relating to Mr. Smith’s repeated unauthorized use of his cellphone during work;
b. Violations of safety rules observed by the Foreman and other employees;
c. Frequent disruptive calls to the Project Safety Manager and Human Resources Manager, culminating in the Manager feeling harassed and blocking Mr. Smith’s calls;
d. Threatening, disrespectful, and/or inappropriate communications with members of management, including a threat to the Human Resources Manager to report various people to the RCMP and unwelcome discussion of his state of undress; and
e. Concerns from Mr. Smith’s co-workers about difficulties working with Mr. Smith.
[32] This allegation that his termination violates the Code has no reasonable prospect of success and is dismissed.
D. Conclusion: complaint against the Employer
[33] Mr. Smith’s complaint against the Employer has no reasonable prospect of success and is dismissed.
IV Complaint against the Union
[34] To succeed in his complaint against the Union, Mr. Smith will have to prove that:
a. He has a physical disability. The Union does not dispute that he has type 2 diabetes and so I accept that he may be able to prove this.
b. He has a mental disability. As I have said, Mr. Smith describes his mental disability as “harassment and bullying” and says that he has been traumatized by events in his workplace and thinks he has PTSD. The Union disputes that Mr. Smith will be able to prove a mental disability.
c. Under s. 13 of the Code, the Union was a “joint author” of a discriminatory workplace rule, or impeded or blocked the Employer’s reasonable efforts to accommodate his disability: Renaud. The Union disputes this.
d. Under s. 14 of the Code, in delivering its services, the Union treated Mr. Smith adversely in connection with his disabilities: Ferris v. Ferris v. Office and Technical Employees Union, Local 15, 1999 BCHRT 55 at paras. 79-80. The Union disputes this.
[35] I am satisfied that Mr. Smith has no reasonable prospect of proving these elements of his complaint against the Union. In this circumstance, the defences of bona fide occupational requirement or reasonable justification do not arise. I consider each of Mr. Smith’s allegations in turn.
A. Impeding accommodation
[36] Mr. Smith says that when he told the Union’s Business Agent that he needed a modified break schedule because of his diabetes, the Business Agent told him: “the company does not have to accommodate you”, “they have a right to direct the workforce”, and Mr. Smith “could never get my break time changed ever under any circumstances because of the collective agreement”. The Business Agent denies saying any of this.
[37] In his affidavit, the Business Agent says that Mr. Smith called him in April 2021 to complain about an incident involving the Foreman and his morning breaks. He asked Mr. Smith to summarize his concerns in an email, which he did on May 9. In his email, Mr. Smith described the Foreman yelling at him and swearing about “baby-sitting you people”. He said he got so “upset and stressed out” that he told a shop steward he was going to leave for the day. He said this made the Foreman angry. He said the Foreman repeatedly “crossed the line”. Towards the end of this lengthy email, Mr. Smith said “I am 59 and a type 2 diabetic, I have enough struggles”. He did not mention that the break timing was negatively affecting him because of his diabetes or that he required accommodation.
[38] After this email, the Business Agent says he spoke to Mr. Smith on the phone to explain that the Union would not be filing a grievance about the Foreman’s conduct. In that call, he says that Mr. Smith raised for the first time that he was diabetic and needed to take his break earlier. The Business Agent says that he advised Mr. Smith that he was a diabetic himself and understood where he was coming from. He explained that the Union could not file a grievance about this until Mr. Smith had spoken to his supervisor and requested accommodation. He says he told Mr. Smith that, based on his experience, the Employer would likely accommodate him by allowing him to take microbreaks to snack. He says that, after that, he did not hear anything else from Mr. Smith about his breaks or accommodation for his diabetes.
[39] Turning to the discrimination analysis, Mr. Smith does not point to any provision in the collective agreement requiring breaks every four hours. The Union says, and it is undisputed, that the break times were imposed by the Employer without input from the Union. This is not a case where the Union may be proven to be a “joint author” of a discriminatory workplace rule.
[40] In addition, Mr. Smith has no reasonable prosect of proving that the Union impeded an accommodation in circumstances where there is no evidence that he ever asked for one.
[41] I acknowledge that there may be some cases where a Union is liable for discouraging a member from seeking accommodation or gives wrong advice which impedes accommodation: see e.g. Hemming v. BCGEU (No. 2), 2016 BCHRT 3 at paras. 41-42. However, considering the whole of the evidence before me, I am persuaded that Mr. Smith has no reasonable prospect of proving that the Business Agent impeded his accommodation. In reaching this conclusion, I apply the analytic framework described in Ritchie v. Central Okanagan Search and Rescue Society and others, 2016 BCHRT 110 :
In conducting an assessment of the evidence, I make no findings of fact. However, I nonetheless apply a content-based analysis not unlike that which would be applied by a fact-finder. Among other things, I look for both internal and external consistency, place the evidence in context, consider the overall relationship of the parties and consider all of the circumstances in which the alleged acts of discrimination occurred. On this basis, I gauge the relative strengths and weaknesses of the case and determine what aspects of the complaint do not rise above conjecture and, in light of all of the material before me, have no reasonable prospect of success. [para. 120]
[42] Mr. Smith’s allegations about what the Business Agent told him are inconsistent with the tenor and sophistication of the Business Agent’s other communications. It is plainly untrue that the Employer has no duty to accommodate employees with disabilities, and as I have said there is no evidence or suggestion that the timing of breaks is governed by the collective agreement. The Business Agent denies saying these things and there is no explanation or context to explain why he would tell Mr. Smith something so obviously untrue, including in circumstances where he also has diabetes. There is evidence from both Respondents that Mr. Smith was persistent in disputing issues he did not agree with, including with frequent phone calls. However, there is no evidence that Mr. Smith followed up with anyone at the Union or the Employer about accommodation. Viewing all the evidence contextually, there is no reasonable prospect the Tribunal would accept that Mr. Smith’s accommodation was impeded by the Business Agent.
[43] This allegation is dismissed.
B. Discrimination in representation
[44] Mr. Smith also alleges that the Union “teamed up” with the Employer to work against him respecting his discipline, suspension, and eventual termination. I outline very briefly the background to this allegation.
[45] First, Mr. Smith alleges that a Union shop steward was present when he received a verbal warning for using his phone during work time, and “agreed with the company”.
[46] Second, Mr. Smith alleges that the Union failed to represent him effectively in its grievance regarding his suspension and subsequent termination.
[47] After the Employer suspended Mr. Smith without pay, the Union filed a grievance on his behalf. Eventually the Union entered into negotiations to resolve the grievance. By this time, Mr. Smith’s employment had been terminated.
[48] The parties appear to agree that Mr. Smith had a “heated” phone call with the Business Agent about the grievance around June 25, 2021. Mr. Smith says that the Business Agent yelled and cursed at him, and told him that the Union was not going to continue with the grievance because he was not a credible witness. The Business Agent denies yelling or cursing, or telling Mr. Smith he was not a credible witness. He says that there was another person on the call who claimed to be Mr. Smith’s legal counsel. He says that Mr. Smith was escalated, and he could not calm him down or explain the Union’s position. He says he ended the call because of Mr. Smith’s “disrespectful and aggressive” conduct.
[49] Shortly after this call, the Employer made a settlement offer. The Union emailed the offer to Mr. Smith, and indicated it was likely the best the Union would be able to get for him. Mr. Smith responded the same day, indicating he did not agree with one of the terms of the offer.
[50] After that, the Business Agent emailed Mr. Smith one more time asking him to send the Union more information by July 15. He says the purpose of the information was for the Union to assess whether the grievance had a reasonable chance of success. He says that Mr. Smith did not provide the requested information and, as a result, the Union withdrew the grievance.
[51] Mr. Smith has not explained how any of the Union’s conduct in relation to his discipline or the suspension/termination grievance is connected to his protected characteristics. There is no evidence before me to support a connection. In this circumstance, any allegation about how the Union represented Mr. Smith in his employment is a matter for the Labour Relations Board and not this Tribunal: Graham v. School District No. 38 (Richmond) and CUPE Local 716, 2005 BCHRT 520 at paras. 57-59; Waters v. Coca-Cola and Teamsters Local 213 , 2005 BCHRT 557 at paras. 17-19. This allegation of discrimination has no reasonable prospect of success and is dismissed.
C. Conclusion: complaint against the Union is dismissed
[52] Mr. Smith’s complaint against the Union has no reasonable prospect of success. It is dismissed.
V CONCLUSION
[53] Mr. Smith’s complaint is dismissed under s. 27(1)(c) of the Code.
Devyn Cousineau
Vice Chair