BC Human Rights Tribunal

I          INTRODUCTION

[1]               In August 2021, Bridget Schmidt made a complaint against BLCO Enterprises Ltd. [BLCO] and Century 21 Resources Ltd. [Century 21] [together, the Respondents] alleging discrimination regarding her employment based on mental disability contrary to s. 13 of the Human Rights Code. Specifically, Ms. Schmidt alleges she was discriminated against when her employer decided to relocate her position to Calgary while she was on a medical leave and then terminated her employment when she declined the transfer.

[2]               The Respondents deny discriminating. They say that because of issues related to Ms. Schmidt’s job performance and the operational needs of the business, Ms. Schmidt’s position was relocated to Calgary. The Respondents say Ms. Schmidt chose not to accept the transfer and her employment was terminated for non-discriminatory reasons.

[3]               Under its Case Path Pilot, the Tribunal allowed the Respondents to make an application to dismiss the complaint under s. 27(1)(c) of the Code on the basis that the complaint has no reasonable prospect of success.

[4]               In this application, the Respondents say that Ms. Schmidt has no reasonable prospect of proving that, at the material time, she had a disability protected by the Code or that there was any nexus between her alleged disability and its decisions to relocate her position and terminate her employment. The Respondents also say the complaint should be dismissed because their decisions were justified.

[5]               For the following reasons, the Respondents’ application is denied. Based on the materials before me, I am not persuaded that Ms. Schmidt has no reasonable prospect of proving her case or that it is reasonably certain the Respondents will be able to prove their conduct was justified.

[6]               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.

II       BACKGROUND

[7]               The following background is taken from the materials filed by the parties. I make no findings of fact.

[8]               The Respondents started a franchise operation in 1998. At all material times, the Respondents operated several KFC and Taco Bell restaurants in BC, Alberta, and Saskatchewan.

[9]               In August 2016, Ms. Schmidt started working for the Respondents as a bookkeeper in their Penticton office. Since 2018, her direct supervisor was the Respondents’ Director of Finance.

[10]           During most of her adult life, Ms. Schmidt has experienced anxiety and depression, for which she has received treatment. The parties do not appear to dispute that until the events giving rise to this complaint, Ms. Schmidt did not tell her employer about her anxiety and depression.

[11]           In November 2019, BLCO opened an office in Calgary and started to consolidate its corporate support operations. The intent of the restructuring was to create a centralized work environment that would allow for more collaboration and support among the Respondents’ corporate departments. After the Calgary office opened, Ms. Schmidt was the only member of BLCO’s finance team under the Director of Finance’s supervision who was working out of the Penticton office. Some of Century 21’s finance positions remained in Penticton until 2021.

[12]           Eventually the Calgary office became the Respondents’ head office and restaurant payroll reporting was centralized there. The Director of Finance allowed Ms. Schmidt to continue working out of the Penticton office so long as her job performance was satisfactory.

[13]           In mid-February 2020, the Director of Finance met with Ms. Schmidt to discuss her job duties and expectations with respect to work hours. At the meeting, they also discussed the option of Ms. Schmidt working from home rather than at the Penticton office. The Director of Finance says she already considered Ms. Schmidt to be working “remotely” because she was the only one on the finance team not working in the Calgary office.

[14]           The parties do not appear to dispute that Ms. Schmidt knew that one of the conditions of her working from home was that the arrangement would be subject to quarterly evaluations to ensure it was still working satisfactorily. They also appear to agree that Ms. Schmidt knew the work from home arrangement might revert back to an in-office work environment based on the business’ operational needs.

[15]           Ms. Schmidt accepted the Respondents’ offer to work from home. Starting around early April 2020, Ms. Schmidt primarily worked from home but sometimes attended the Penticton office. Around that time, most of the Respondents’ finance team worked from home due to the Covid-19 pandemic.

[16]           In March 2021, issues arose with respect to Ms. Schmidt’s job performance. The parties do not appear to dispute that Ms. Schmidt received two disciplinary notices for significant errors she made using the company’s software.

[17]           The Director of Finance says the work from home arrangement contributed greatly to Ms. Schmidt’s performance issues because she was not directly supervised. She also says that some of the bookkeeping errors Ms. Schmidt made were the result of gaps in software training, and a lack of guidance and one-on-one support.

[18]           At the time the disciplinary notices were issued, the Director of Finance communicated to Ms. Schmidt that she was not happy with the quality of her work. The Director of Finance says that given the nature of the errors Ms. Schmidt made, she had serious reservations about allowing Ms. Schmidt to continue to work from home.

[19]           Around mid-March 2021, Ms. Schmidt saw her doctor after she started to have migraines that triggered her anxiety and depression. At the end of March 2021, Ms. Schmidt was prescribed antidepressant medication and provided her employer with a note from her doctor saying that she needed two weeks off for medical reasons. In her email to the Director of Finance and Human Resources Manager [HR Manager] attaching the doctor’s note, Ms. Schmidt said:

I am writing to inform you that I will be taking a medical leave, I have been suffering with migraines, and that has triggered my anxiety and depression. I have attached a note from my doctor to confirm that it is necessary for my health to take a medical leave, it is for 2 weeks with today 3/30 as the start date.

[20]           In early April 2021 Ms. Schmidt provided her employer with a doctor’s note saying she would be able to return to work on April 15, 2021 without any restrictions or limitations. Ms. Schmidt says the note was based on the understanding that she would continue to work from home. She also says her doctor recommended extending her medical leave, but she could not afford to do so.

[21]           While Ms. Schmidt was on medical leave, her emails were forwarded to the Director of Finance. At that time, the Director of Finance discovered errors Ms. Schmidt had been making with respect to processing invoices. The Director of Finance says that because of the ongoing issues with Ms. Schmidt’s job performance and the company’s operational workflow, she decided it was no longer acceptable for Ms. Schmidt to work from home. She says that all positions within the finance department needed to be physically located in Calgary.

[22]           The Director of Finance met with the HR Manager to discuss ending Ms. Schmidt’s remote work arrangement and make plans for her to relocate to Calgary. The Director of Finance says no decision had been made to terminate Ms. Schmidt’s employment because she wanted to continue to support Ms. Schmidt in her position with direct supervision.

[23]           Ms. Schmidt returned to work on April 15, 2021. On that day, the HR Manager informed her that her position was being relocated to Calgary because the Director of Finance felt she needed in-person training and support from her colleagues. Ms. Schmidt says they did not discuss her medical leave or any concerns about her job performance.

[24]           In their email exchange after the meeting, the HR Manager explained to Ms. Schmidt that her position was being relocated for several reasons, including to improve workflow and collaboration, and so the Director of Finance could provide one-on-one coaching and guidance. In her response, Ms. Schmidt said she wanted to keep her job and asked what would happen if she declined the transfer. The HR Manager told Ms. Schmidt that her employment would end because the company did not have another job available for her.

[25]           Ms. Schmidt says she ultimately decided that moving to Calgary would be detrimental to her mental health and that her anxiety and depression flared up even thinking about relocating. Ms. Schmidt emailed the Director of Finance and HR Manager and said she was declining the transfer. In addition to telling them that relocating was not feasible because of a serious family illness, Ms. Schmidt said:

… my family is all here in BC, they are my support system as I am experiencing health issues and this additional stress with my job now being moved is not conducive to my mental well being. Returning back from medical leave yesterday, I was feeling a bit better and now I am spiraling down, having difficulty sleeping and once again woke up with a migraine.

[26]           Ms. Schmidt continued to work from home until mid-May 2021, when her employment was terminated without cause.

III     DECISION

[27]           The Respondents apply to dismiss the 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.

[28]           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.

[29]           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.

[30]           A dismissal application is not the same as a hearing: Lord v. Fraser Health Authority, 2021 BCSC 2176 at para. 20; SEPQA v. Canadian Human Rights Commission, [1989] 2 SCR 879 at 899. The threshold to advance a complaint to a hearing is low. In a dismissal application, a complainant does not have to prove their complaint or show the Tribunal all the evidence they may introduce at a hearing. They only have to show that the evidence takes their complaint out of the realm of conjecture: Workers’ Compensation Appeal Tribunal v. Hill, 2011 BCCA 49 at para. 27.

[31]           To prove her complaint at a hearing, Ms. Schmidt will have to prove that at the material time, she had a disability protected by the Code, she was adversely impacted with respect to her employment with the Respondents, and her disability was a factor in the adverse impact: Moore v. British Columbia (Education), 2012 SCC 61 at para. 33. If she does that, the burden will shift to the Respondents to justify the impact as a bona fide occupational requirement. If the impact is justified, there is no discrimination.

A.    Ms. Schmidt’s case

[32]           The Respondents argue that Ms. Schmidt has no reasonable prospect of proving two elements of her case. I consider each in turn.

1.      Protected characteristic

[33]           The Respondents argue that Ms. Schmidt has no reasonable prospect of establishing that at the material time she had a mental disability protected by the Code. The Respondents say there is no allegation that Ms. Schmidt had any medical condition that was permanent or ongoing.

[34]           The term “disability” is not defined in the Code and whether a complainant has established this element is determined on a case-by-case basis. The term “disability” is not to be narrowly defined, and generally “includes an involuntary physical or mental condition that has some degree of permanence, and impairs an individual’s ability, in some measure, to carry out the normal functions of life”: Beckett and Kuan v. The Owners, Strata Plan NW 2603, 2016 BCHRT 27 at para. 120; see also Wynne v. Tofino Consumers Co-Operative Association, 2023 BCHRT 218 at para. 20. When determining whether a complainant has proved this element of their case, the Tribunal considers any functional limitations resulting from the complainant’s physical or mental impairment. The Tribunal also considers the “social, legislative, or other response” to the complainant’s impairment or limitations: Morris v. BC Rail, 2003 BCHRT 14 at para. 214.

[35]           Ms. Schmidt’s affidavit evidence indicates that for several years she has experienced anxiety and depression. It also indicates that at times she sought medical treatment for her mental health, including therapy, counselling, and antidepressant medication. The affidavit and documentary evidence indicates that prior to the termination of her employment, Ms. Schmidt had gone to her doctor because of migraines that were exacerbating her anxiety and depression. It also indicates that Ms. Schmidt’s doctor prescribed medication and recommended she take time off work.

[36]           Regardless of what the Respondents knew or ought to have known at the material time about Ms. Schmidt’s alleged disability, in my view the evidence described above is sufficient to take this element of her complaint out of the realm of speculation.

2.      Nexus

[37]           The Respondents argue that Ms. Schmidt has no reasonable prospect of establishing a nexus between the termination of her employment and her alleged mental disability. The Respondents say the decision to relocate Ms. Schmidt’s position to the Calgary office was made solely for operational reasons. The Respondents further say that other than the timing of Ms. Schmidt’s medical leave and the decision to relocate her position, there is no evidence suggesting that Ms. Schmidt’s medical leave or her alleged disability was a factor.

[38]           Based on the materials before me, it does not appear that Ms. Schmidt is alleging that her anxiety and depression caused or contributed to the errors she was making before she went on medical leave. In her affidavit, Ms. Schmidt says the errors for which she received two disciplinary notices were caused by a lack of training, a software glitch, and forgetting to record GST and expenses separately. Ms. Schmidt also says she was not given enough support to feel comfortable with the company’s new software.

[39]           However, given the timing of the Respondents’ decision to relocate Ms. Schmidt’s position, I am not persuaded she has no reasonable prospect of proving this part of her case. The Tribunal has recognized that when an employer decides to reorganize the structure of its workplace or terminate an employee’s employment when they are on medical leave, an inference can be made that the employee’s disability was a factor in the decision-making: Parry v. Vanwest College, 2005 BCHRT 310 at paras. 64-67; Morris at para. 231. Based on that reasoning, in my view it would be open to the Tribunal Member hearing this complaint to find there was a connection between Ms. Schmidt’s alleged disability and the Respondents’ decisions to relocate her position and terminate her employment when she declined the transfer.

[40]           Further, the evidence before me indicates that before the decision was made to relocate Ms. Schmidt’s position, the Respondents were aware that Ms. Schmidt needed a two-week medical leave of absence due to migraines that triggered her anxiety and depression. It indicates that before the decision was made to terminate Ms. Schmidt’s employment, the Respondents were aware that Ms. Schmidt had “health issues” for which she needed her family support system, the additional stress of learning her job had been relocated was not conducive to her mental health, and she was “spiraling down” and had difficulty sleeping after being informed of the relocation.

[41]           In my view, a hearing is required to determine whether the Respondents had sufficient information at the time to know, or make any necessary inquiries, as to whether Ms. Schmidt had a disability that required accommodation: Bertrend v. Golder Associates, 2009 BCHRT 274 at paras. 218-220; Martin v. Carter Chevrolet Oldsmobile, 2001 BCHRT 37 at para. 29.

B.     The Respondents’ justification defence

[42]           The Respondents argue that the complaint has no reasonable prospect of success because they are reasonably certain to prove their conduct was justified.

[43]           The Tribunal may consider a defence in an application to dismiss under s. 27(1)(c) of the Code: Trevena v. Citizens’ Assembly on Electoral Reform and others, 2004 BCHRT 24 at para. 67. A complaint has no reasonable prospect of success if it is reasonably certain that the respondent will establish a defence at a hearing: Purdy v. Douglas College and Others, 2016 BCHRT 117 at para. 50. At a hearing, the burden of establishing the elements of a justification defence is on the respondent.

[44]           To justify the decisions to relocate Ms. Schmidt’s position and then terminate her employment, the Respondents will have to prove at a hearing that: (1) they adopted the standard for a purpose rationally connected to the performance of the job; (2) they adopted the standard in an honest and good faith belief that it was necessary to fulfill that legitimate purpose; and (3) the standard is reasonably necessary to accomplish the legitimate purpose. This third element encompasses the Respondents’ duty to accommodate Ms. Schmidt’s disability 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 at para. 54.

[45]           For the purposes of this application, I accept the Respondents’ description of the standard at issue as requiring all finance team members to be physically present in Calgary. Based on the evidence before me, I am persuaded it is reasonably certain the Respondents would be able to prove that the standard is rationally connected to the performance of Ms. Schmidt’s job. In the absence of evidence to the contrary, I am also persuaded it is reasonably certain the Respondents would be able to establish that the standard was adopted in good faith and in the belief it was necessary to accomplish the legitimate purpose.

[46]           As is often the case, in my view the issue is whether it is reasonably certain the Respondents will be able to prove they accommodated Ms. Schmidt’s disability to the point of undue hardship.

[47]           The duty to accommodate “is an exercise in common sense and flexibility, in which both the process and the substance of the accommodation are relevant”: Fenech v. PNI Media Inc. and another, 2023 BCHRT 120 at para. 49. What constitutes “undue hardship” depends on “the characteristics of each enterprise, the specific needs of each employee, and the specific circumstances in which the decision is to be made”: McGill University Health Centre (Montreal General Hospital) v. Syndicat des employés de l’Hôpital général de Montréal, 2007 SCC 4 at para. 22. An employer will have satisfied its duty to accommodate “when reasonable means of accommodation are exhausted and only unreasonable or impractical options for accommodation remain”: Council of Canadians with Disabilities v. VIA Rail Canada Inc., 2007 SCC 15 at para. 130.

[48]           The Respondents say they met their duty to accommodate Ms. Schmidt’s alleged disability. They say that before she declined the transfer to Calgary, Ms. Schmidt never made any effort to identify a possible accommodation, nor did she work with them to facilitate a search for reasonable accommodation. The Respondents say Ms. Schmidt never provided any medical information to support her decision not to relocate to Calgary. They also say that Ms. Schmidt’s decision to stay close to her family was a personal choice and not a medically necessary accommodation. Last, the Respondents say that allowing Ms. Schmidt to work from home or out of the Penticton office would have been an undue hardship.

[49]           The Respondents have provided compelling evidence to support their argument that the decision to relocate Ms. Schmidt’s position to Calgary was justified. Specifically, the Respondents submitted evidence showing that the work from home arrangement in place between April 2020 and March 2021 was not working satisfactorily. The Respondents have also submitted evidence indicating that Ms. Schmidt’s suggested accommodation of working out of the Penticton office and having the Director of Finance split her time between Calgary and Penticton would have been an undue hardship.

[50]           However, for the following reasons, I am not persuaded it is reasonably certain the Respondents would be able to establish at a hearing that they met their duty to accommodate Ms. Schmidt’s alleged disability.

[51]           First, Ms. Schmidt has put forward in her submission possible accommodation options that the evidence indicates were not considered by the Respondents before her employment was terminated. Specifically, Ms. Schmidt says she could have received the required supervision, training, and support through videoconferencing and screen sharing. She also says that given her extensive bookkeeping experience and knowledge of the Respondents’ operations, modifications could have been made to her job duties.

[52]           I am not deciding whether the options Ms. Schmidt proposed were reasonable or practical options for the Respondents. All I am saying is that there is no evidence before me indicating that the Respondents considered these or other alternatives to determine if implementing any of them would have been an undue hardship.

[53]           Second, the evidence supports the Respondents’ assertion that Ms. Schmidt never identified possible accommodations or provided medical information indicating that working remotely was a medically necessary accommodation. That evidence is relevant to determining whether Ms. Schmidt fulfilled her obligation in the search for reasonable accommodation by bringing to the Respondents’ attention the facts of the discrimination: Central Okanagan School District No. 23 v. Renaud, [1992] 2 SCR 970 [Renaud] at p. 994.

[54]           However, the duty to accommodate is a two-way street. Even though a complainant can suggest accommodation measures, “the employer is in the best position to determine how the complainant can be accommodated without undue interference in the operation of the employer’s business”: Renaud at p. 994. There is no evidence before me indicating that the Respondents ever asked Ms. Schmidt to participate in an accommodation process to search for reasonable and practical alternatives to relocating. There is also no evidence indicating that the Respondents requested medical evidence to support Ms. Schmidt’s assertion that in addition to dealing with a family illness, her decision not to relocate was due to her mental health. Rather, the evidence indicates that when Ms. Schmidt asked what would happen if she did not accept the transfer, she was told that her employment would end in one month.

IV    CONCLUSION

[55]           For the reasons set out above, the Respondents’ application to dismiss the complaint under s. 27(1)(c) of the Code is denied. The complaint will proceed to a hearing.

 

Beverly Froese

Tribunal Member