Potter v. London Drugs, 2025 BCHRT 139
Date Issued: June 12, 2025
File: CS-004584
Indexed as: Potter v. London Drugs, 2025 BCHRT 139
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:
Thomas Alexander Potter
COMPLAINANT
AND:
London Drugs Limited
RESPONDENT
REASONS FOR DECISION
APPLICATION TO DISMISS A COMPLAINT
Section 27(1)(c)
Tribunal Member: Devyn Cousineau
On his own behalf: Thomas Alexander Potter
Counsel for the Respondent: Jennifer Devins and Lara Israel
I INTRODUCTION
[1] In this decision, I explain why I am dismissing Thomas Potter’s human rights complaint.
[2] Mr. Potter worked for London Drugs for nearly 45 years. Between 2017 and 2020, he was off work on a disability-related leave. When his long-term disability benefits ended, London Drugs asked him for information about whether he would be able to return to work, with or without accommodation, in the foreseeable future. Mr. Potter did not provide that information. As a result, London Drugs determined that the employment contract had been frustrated, and ended Mr. Potter’s employment.
[3] In his human rights complaint, Mr. Potter says that, by ending his employment, London Drugs discriminated against him based on his disability, in violation of s. 13 of the Human Rights Code. London Drugs argues that it is reasonably certain to prove that its decision was justified based on the bona fide occupational requirement that an employee be available for work. It asks the Tribunal to dismiss the complaint because it has no reasonable prospect of success: Code, s. 27(1)(c).
[4] For the following reasons, I am satisfied that London Drugs is reasonably certain to prove its defence. Given how long Mr. Potter had been off work, and without any information to suggest he could return in the foreseeable future, there was nothing further that London Drugs could do to accommodate him. Through no one’s fault, Mr. Potter was no longer able to work. Ending his employment was not discriminatory. The complaint is dismissed.
II DECISION
[5] London Drugs applies to dismiss the complaint on the basis that it has no reasonable prospect of success: Code, s. 27(1)(c). The onus is on London Drugs to establish the basis for dismissal.
[6] To consider this application, I do not make findings of fact. Instead, I look 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. I must base my 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.
[7] 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.
[8] There is no dispute that Mr. Potter’s disability was a factor in his employment ending: Moore v. British Columbia (Education), 2012 SCC 61 at para. 33. This application turns on whether London Drugs is reasonably certain to prove a defence of bona fide occupational requirement: Purdy v. Douglas College and others, 2016 BCHRT 117 at para. 50. This defence has three parts:
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.
b. Good faith: it adopted the workplace standard in an honest and good faith belief that it was necessary to fulfil its valid purpose.
c. Reasonable necessity and accommodation: the standard was reasonably necessary to accomplish its purpose and London Drugs discharged its duty to accommodate Mr. Potter 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; Ciliberto v. Tree Island Industries Ltd., 2024 BCHRT 87 at para. 27
[9] There is no dispute about the first two elements of the defence. The “standard” at issue is that employees be available to work: Senyk v. WFG Agency Network (No. 2), 2008 BCHRT 376 at para. 354. This is a legitimate standard, adopted in good faith, which is not only rationally connected to the performance of the job but integral to it. The ability to perform work is the “essence” of the employment contract: Hydro-Québec v. Syndicat des employé-e-s de techniques professionnelles et de bureau d’Hydro-Québec, section locale 2000 (SCFP-FTQ), 2008 SCC 43 at para. 15.
[10] The heart of this complaint, like many, is on the third element of the defence: whether London Drugs satisfied its obligation to accommodate Mr. Potter to a point of undue hardship. The concept of “reasonable accommodation” requires employers to take all reasonable and practical steps to assess whether working conditions can be changed to allow the employee to do their work and, if not, whether there is other work that they could do: Hydro-Québec at para. 17. Where an employee cannot work because of a disability, the employer’s duty to accommodate them ends “where the employee is no longer able to fulfill the basic obligations associated with the employment relationship for the foreseeable future”: Hydro-Québec at para. 19. This is an assessment made based on the entire history of the matter: Hydro-Québec at para. 21.
[11] The significant facts are not in dispute. In the last ten years of his employment, Mr. Potter was off work for about 6.5 years due to disability-related medical leaves (2010 – 2012; September 2015 – February 2017; September 2017 – September 2020). In May 2020, the long-term disability [LTD] insurer determined that Mr. Potter continued to meet its definition of “total disability”, meaning that he was totally disabled from performing his job.
[12] On April 21, 2020, London Drugs’ Disability Management Coordinator [Coordinator] wrote to Mr. Potter to request “updated medical information from your treating physician addressing whether there is any potential for you to return to work in the foreseeable future with or without accommodation”. She advised that, if Mr. Potter could not provide this information, “we will conclude there is no return to work potential and your employment will end effective September 30, 2020”.
[13] Mr. Potter did not respond to this April 21 letter. He says that he was recovering from an accident. On October 6, the Coordinator followed up, asking whether Mr. Potter would like London Drugs to process the end of his employment as a retirement. Mr. Potter did not respond right away. On October 13, London Drugs processed his retirement effective September 30.
[14] On October 22, Mr. Potter responded to these communications. He said that his doctor was working on a letter about his ability to return to work. That same day, the Coordinator explained:
In terms of the medical, we only need that if you are medically able to return to work. It was our understanding based on information from [the LTD insurer], you were considered disabled on a permanent and long term basis, however, if there have been significant changes that would support your return, we can re-instate your employment should there be an accommodation suitable for you.
[15] There was a bit more back-and-forth after this. Mr. Potter says that he felt confused and did not know what was required of him to return to work. Ultimately, he did not provide any information, medical or otherwise, indicating that he could return to work in the foreseeable future. His retirement remained in effect.
[16] Mr. Potter argues that London Drugs knew he eventually wanted to return to work and failed to engage in a meaningful process to determine whether that was possible: citing Boehringer Ingelheim (Canada) Ltd./ Ltée. v. Kerr, 2011 BCCA 266. Respectfully, I disagree.
[17] London Drugs gave Mr. Potter multiple opportunities to provide medical information to support that he could return to work, in some capacity, in the foreseeable future. It gave Mr. Potter notice that, unless it received that information, his employment would come to an end. The Tribunal has described this as a “best practice”, which allows the employee the opportunity to obtain up to date medical information, and/or prepare themselves for the employment relationship to end: Chohan v. Costco Wholesale Canada, 2017 BCHRT 233 at para. 54. Even after London Drugs had processed his retirement, it continued to offer Mr. Potter the opportunity to provide some information about the prospect he could return to work in the foreseeable future.
[18] As the employee, it was Mr. Potter’s responsibility to bring forward the facts that could facilitate an accommodation: Central Okanagan School District No. 23 v. Renaud, [1992] 2 SCR 970 [Renaud]. He did not do so. Notably, in this dismissal application, Mr. Potter still has not provided any indication – medical or otherwise – that he could have returned to work, in any capacity, in 2020 or anytime since.
[19] This is not a case like Kerr, which Mr. Potter relies on. In Kerr, the insurer considered the employee capable of work, the employer knew the employee wanted to return to work, and the employer’s conclusion that the employee could not work was based on a stereotypical assumption about the nature of her disability: see e.g. paras. 34-36. Here, I acknowledge that Mr. Potter says that he wanted to return to work. However, the evidence before me is that he had been absent for most of the previous 10 years, and continued to be totally disabled from his job. The employer was not relying on stereotype, but gave Mr. Potter the opportunity to provide medical evidence supporting his ability to return to work in the foreseeable future. He did not do so.
[20] In this circumstance, the case is more similar to complaints cited by London Drugs, where the Tribunal has dismissed an employee’s complaint because the employee is no longer able to fulfill the basic obligations of the employment relationship for the foreseeable future: Barboutis v. Singer Valve, 2012 BCHRT 244; Barker v. Vitalus Nutrition, 2016 BCHRT 88; Costco; Minns v. JACE Holdings, 2011 BCHRT 53. It is also similar to Hydro-Québec, where the Supreme Court of Canada concluded the employer’s duty to accommodate the employee ended after the employee was absent from work for over 2.5 of the last seven years, with no indication that she would be able to return to regular work in the reasonably foreseeable future.
[21] In this case, the undisputed evidence is that Mr. Potter had exhausted all his sick pay and his short- and long-term disability benefits. He continued to meet the insurer’s definition of “total disability” and has not pointed to any evidence that might support his ability to return to work in the foreseeable future. I am reasonably certain that London Drugs will prove that he was no longer able to meet the basic obligations of the employment relationship and, in these circumstances, its duty to accommodate him had come to an end. In this situation, the complaint has no reasonable prospect of success and is dismissed.
[22] Finally, I acknowledge that Mr. Potter has made several new allegations in his response to the dismissal application, relating to events dating back as far as 2008. For example, he alleges that:
a. In 2008, he was discriminated against in respect of a job competition;
b. In 2009, he was unfairly criticized for his disability-related absences and London Drugs failed to offer flexible work schedules and accommodate his mental illness;
c. In 2012, while he was planning for his return to work, London Drugs eliminated his technical position, and effectively demoted him;
d. In 2015, London Drugs refused to accommodate him and lowered his wages; and
e. During his medical leave in 2017, London Drugs failed to support him and the requirements of the Return to Duty Program negatively impacted him and exacerbated his disabilities.
[23] I agree with London Drugs that these are entirely new allegations, which are not part of Mr. Potter’s human rights complaint. Mr. Potter did not apply to add the new allegations to his complaint, as he was required to do under the Tribunal’s Rules of Practice and Procedure: Rule 24(4)(b). In any event, the allegations are about events significantly outside the one-year time period for filing a complaint: Code, s. 22(1) and (2). It would be unfair to London Drugs to consider these allegations, and I have not done so: Pausch v. School District No. 24 and others, 2008 BCHRT 154. I also have not considered Mr. Potter’s arguments that London Drugs and the insurer violated the Personal Information Protection Act and the Employment Standards Act, because those arguments are not about discrimination under the Code.
III CONCLUSION
[24] I acknowledge this is an unfortunate situation. After nearly 45 years, through no fault of his own, Mr. Potter’s employment came to an end.
[25] However, I am satisfied that there is no reasonable prospect that the Tribunal would conclude, after a hearing, that this outcome violated the Code. The complaint is dismissed.
Devyn Cousineau
Vice Chair