BC Human Rights Tribunal

I          INTRODUCTION

[1]               Lalawnie Stewart alleges her former employer, Vancouver Island Mental Health Society discriminated in employment on the basis of mental disability when it fired her because of an illness contrary to s.13 of the Human Rights Code.

[2]               The Society denies discriminating. It applies to dismiss the complaint under s. 27(1)(c) because the complaint has no reasonable prospect of success, and under (d)(ii) because it would not further the purposes of the Code to proceed because the parties have settled the underlying complaint.

[3]               Ms. Stewart did not respond to the application. The Tribunal set a schedule for submissions by a letter dated January 12, 2024. Ms. Stewart did not file a response by the deadline of March 22, 2024, or at all. In these circumstances, I am satisfied Ms. Stewart had notice of the application and an opportunity to file a response submission. I find there is no unfairness in making this decision on the materials before me.

[4]               I find this application can most efficiently be resolved under s. 27(1)(d)(ii). For the reasons that follow, I am persuaded that the purposes of the Code would not be furthered by allowing the complaint to proceed because the parties have settled this complaint.

[5]               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.

II       BACKGROUND

[6]               Ms. Stewart was employed by the Society from 2011 to May 25, 2020, as a mental health support worker.

[7]               Ms. Stewart filed her complaint with the Tribunal on May 21, 2021. In her complaint, Ms. Stewart alleges that the Society fired her “while [she] was ill and temporarily disabled.” She does not provide information about her alleged illness or any limitations she had due to her disability.

[8]               Independent of her human rights complaint, Ms. Stewart filed a grievance about her termination with the assistance of her union.

[9]               On April 19, 2022, the parties entered into a settlement agreement resolving Ms. Stewart’s termination grievance. The terms of the settlement agreement provide that:

a.    Ms. Stewart will be paid the amount of $55,000.00 as general damages not subject to any statutory deductions;

b.    The Society will rescind Ms. Stewart’s termination, and the parties agree that the employment is “deemed to have concluded on May 25, 2020”; and

c.     Ms. Stewart will release the Society from “all manner of actions, grievances, claims, complaints…connected with the employment or the cessation of [Ms. Stewart’s] employment with [the Society] with the exception of the outstanding [human rights complaint].”

[10]           The next step in Ms. Stewart’s human rights complaint was disclosure. By a letter dated July 11, 2022, the Tribunal set a deadline for parties to complete their document disclosure requirements. The Society completed their disclosure on September 28, 2022. Ms. Stewart did not complete her disclosure by the due date of October 3, 2022. The Tribunal wrote to Ms. Stewart on March 15, 2023, extending the deadline to March 29, 2023. The Tribunal wrote to Ms. Stewart on December 19, 2023, further extending the deadline to January 8, 2024. Ms. Stewart did not complete her document disclosure.

III     DECISION

[11]           Section 27(1)(d)(ii) allows the Tribunal to dismiss a complaint where proceeding with it would not further the purposes of the Code. These purposes include both private and public interests: s. 3 of the Code. Deciding whether a complaint furthers those purposes is not only about the interests in the individual complaint. It may also be about broad public policy issues, like the efficiency and responsiveness of the human rights system, and the expense and time involved in a hearing: Dar Santos v. University of British Columbia, 2003 BCHRT 73, at para. 59, Tillis v. Pacific Western Brewing and Komatsu, 2005 BCHRT 433 at para. 15, Gichuru v. Pallai (No. 2), 2010 BCHRT 125, at paras. 113-118.

[12]           The Society argues that it would not further the Code’s purposes for the complaint to proceed because the underlying dispute has been resolved or remedied: Williamson v. Mount Seymour Park Housing Co-operative and others, 2005 BCHRT 334.

[13]           Generally, where a complaint of discrimination has been appropriately resolved, proceeding with the complaint would not further the purposes of the Code because the discrimination has already been remedied: Williamson at para. 13. The Tribunal’s ability to fulfill the purposes of the Code is harmed when its resources are taken up with complaints that have already been adequately addressed, whether through settlement, unilateral respondent action or other proceedings: Williamson at para. 13.

[14]           For the Tribunal to dismiss a complaint under s. 27(1)(d)(ii) on the basis that the respondent has appropriately addressed the alleged discrimination, the respondent must persuade the Tribunal that:

a.     The respondent took the complainant’s discrimination claim seriously;

b.     The respondent appropriately addressed the impact on the complainant; and

c.     Where necessary, the respondent took appropriate steps to ensure the discrimination would not happen again: see, e.g., Horner v. Concord Security Corporation, 2003 BCHRT 86; Williamson; Aflakian v. Fraser Health Authority and another, 2011 BCHRT 170; Baker v. Brentwood College School and another, 2011 BCHRT 335.

[15]           The Tribunal’s analysis under s. 27(1)(d)(ii) is contextual and case specific. Alongside the above requirements for dismissing a complaint on the basis that the alleged discrimination has been addressed, the Tribunal may also consider relevant contextual factors, such as: the seriousness of the alleged discrimination; the timeliness of the respondent’s response to the allegation; the nature of its response (e.g., whether the respondent investigated the allegation); whether the respondent acknowledged the discrimination; whether the complainant was compensated for their losses; whether the respondent has a discrimination policy; and the importance of encouraging parties to address allegations of discrimination in a timely and constructive manner: see Baker at para. 47. Not every factor listed is relevant to every case.

[16]           Applying, the above analysis, I am persuaded that it would not serve the purposes of the Code to proceed with this complaint because the Society has appropriately addressed the alleged discrimination.

[17]           First, the evidence supports that the Society took Ms. Stewart’s complaint seriously. It actively participated in the human rights complaint process and the grievance process, met filing deadlines, and was fully engaged in both processes.

[18]           Second, the evidence before me is that the Society has policies and procedures in place to address allegations of discrimination. The Society says it regularly reviews and updates its policies and procedures.

[19]           Third, the parties entered into a settlement agreement in Ms. Stewart’s grievance process compensating Ms. Stewart $55,000.00. The Society says this amount represents Ms. Stewart’s loss of income, and the emotional and psychological impact she allegedly experienced. I appreciate that the terms of the settlement specifically did not release the claims made in the human rights complaint. However, I find the grievance dealt with many of the same issues that are now before the Tribunal about the termination of Ms. Stewart’s employment. Further, the Society addressed Ms. Stewart’s allegations about the termination of her employment by rescinding the termination and agreeing to a mutual end of the employment.

[20]           Finally, the Society says they have taken steps so that the alleged discrimination cannot happen again. It says Ms. Stewart’s complaint is about a discrete instance of being terminated when she was ill and disabled. It says the termination of employment was rescinded, and the parties have agreed to a mutual end of employment.

[21]           The evidence before me is that the Society addressed Ms. Stewart’s allegation of discrimination in a direct and attentive manner and have conclusively resolved it through a settlement agreement. Ms. Stewart was awarded a sum of money compensating her for her losses and injuries and her termination was rescinded. In these circumstances, where the Society has shown it has addressed the impact of the alleged discrimination, I cannot say it would further the purposes of the Code to proceed with the complaint.

[22]           Accordingly, I allow the application and dismiss the complaint under s. 27(1)(d)(ii).

IV    CONCLUSION

[23]           The application to dismiss is granted. The complaint is dismissed under s. 27(1)(d)(ii).

Edward Takayanagi

Tribunal Member