BC Human Rights Tribunal

 

I          INTRODUCTION

[1]               Tyler Cooper alleges that Cermaq Canada Inc. [Cermaq] and Shannan Brown [collectively, the Respondents] discriminated against him based on a physical disability contrary to s. 13 of the Human Rights Code when they failed to accommodate his broken toes and back injury and then terminated him from his employment.

[2]               The Respondents deny discriminating and apply to dismiss the complaint under ss. 27(1)(c), 27(1)(b), and 27(1)(d)(ii) of the Code. They say Mr. Cooper does not have physical disabilities within the meaning of the Code and assert that they terminated Mr. Cooper’s employment solely for poor work performance. They argue that Ms. Brown was acting at all times within the scope of her employment.

[3]               Mr. Cooper did not respond to the application to dismiss but told the Tribunal that he still wishes to pursue his complaint.

[4]               I find that I can decide the Respondents’ application under s. 27(1)(c) of the Code, which requires me to determine whether the complaint has no reasonable prospect of success. In particular, I must determine whether there is no reasonable prospect of Mr. Cooper proving he had physical disabilities, he was adversely impacted in employment, and his physical disabilities were a factor in the adverse impact: Moore v. British Columbia (Education), 2012 SCC 61 at para. 33.

[5]               While I am not satisfied that there is no reasonable prospect of Mr. Cooper proving that his broken toes and back injury were physical disabilities, I nevertheless dismiss the complaint. I am satisfied that Mr. Cooper has no reasonable prospect of proving an adverse impact with respect of the allegation that he was not accommodated at work. And I am satisfied that the Respondents are reasonably certain to prove that Mr. Cooper’s disabilities were not a factor in his termination but rather Cermaq had a non-discriminatory reason for the termination—i.e. Mr. Cooper’s failure to follow company policy.

[6]               To make this decision, I have considered all the information filed by the parties. In these reasons, I refer only to what is necessary to explain my decision. I make no findings of fact.

II       BACKGROUND

[7]               Cermaq is a salmon farming company with a hatchery located close to Duncan, B.C. [the Hatchery]. Ms. Brown is Cermaq’s People and Culture Director.

[8]               The Respondents say that the Hatchery is “an isolated workplace filled with safety risks.” They describe the Hatchery as follows:

The Hatchery is located approximately three kilometres from the city centre of Duncan on a dead-end road, two blocks off the highway…It is surrounded by farmland or trees on three sides. The Hatchery is fully fenced and secured. It is approximately 1.5 acres. There are many water hazards, from tanks to settling ponds, plus numerous buildings, heavy electrical equipment such as pumps, running 24 hours a day to move millions of gallons of water continuously. There is not a clear line of sight to the whole property from any vantage point. There is significant mechanical or water noise in most indoor areas.

[9]               Mr. Cooper started his employment with Cermaq in November 2020. He was employed at the Hatchery as a Freshwater Technician with the following duties:

a.    being the first responder to alarm systems during the late afternoon to evening at the Hatchery for the health and welfare of the eggs and fish onsite;

b.    completing tasks to support the day shifts that are low safety risk and to assist with the setup for the next day’s workers; and

c.     being an additional security measure for the Hatchery by having a presence at the site beyond regular working hours.

[10]           Cermaq hired Mr. Cooper to work alone on overnight shifts at the Hatchery. During his first three months at the Hatchery, he was not required to work alone or for overnight shifts while he was trained on the Freshwater Technician role. After his probation period ended in February 2021, his hours were set from 11 p.m. to 7:30 a.m. Mr. Cooper then worked alone.

[11]           Cermaq required Mr. Cooper to wear a “loner device” when he was working alone. The loner device allows the employee to check in and notifies the service provider should the employee miss any check ins. The loner device reminds employees to check in through an alarm that sounds. It also sounds an alarm and notifies the service provider of any trips or falls that lead to impact, or when there has been no movement. The Respondents say that its policies require its employees working alone to check in every hour through the loner device and that Mr. Cooper received these policies and training on how to use the loner device.

[12]           According to the Respondents, problems with Mr. Cooper’s work performance arose after he began working overnight shifts at the Hatchery. In particular, they say that Mr. Cooper consistently failed to use his loner device according to Cermaq’s policies and that Mr. Cooper was often late for work. They say that Mr. Cooper received verbal warnings to keep his loner device powered on, but he failed to do so.

[13]           The Respondents point to a copy of Mr. Cooper’s loner device report for the month of August 2021. They say it shows that the loner device was functioning, but that Mr. Cooper logged off the loner device between 2:15 am and 5:45 am on August 24, 2021 and was logged out of the loner device for almost the entire shift on August 21, 2021. The Respondents also say that they saw video footage in August 2021 of Mr. Cooper entering a room, closing the blinds, and shutting off the lights. During that time, Mr. Cooper’s loner device was also powered off. The Respondents say there was no reason for Mr. Cooper to have turned off the lights in the room as he would have needed the light to perform his tasks. The clear implication of the Respondents’ argument is that Mr. Cooper was sleeping on the job.

[14]           For his part, Mr. Cooper says in his complaint that he was not trained properly on the loner device. He says his loner device malfunctioned for the first six months of his employment and never asked for check ins. He does, however, admit that he would turn the device off when he was not moving in order to avoid the alarms.

[15]           Mr. Cooper says that approximately one month before Cermaq terminated his employment, he hurt his back at work. He says he continued to work through the back injury because it was not severe. He says he told Cermaq that certain duties would affect his back injury but there was no change in duties.

[16]           Cermaq says that on July 24, 2021, Mr. Cooper informed Cermaq that he had strained his back at work. Cermaq told Mr. Cooper to submit an injury report, which he did on July 27. Cermaq’s Occupational Health and Safety Coordinator [OHSC] corresponded with Mr. Cooper about his injury. Mr. Cooper told the OHSC on July 27 that his back was a lot better than it was when he injured it, even without medical treatment, although there was still some tightness. He told Cermaq that he would continue to monitor its progress. When the OHSC checked in with Mr. Cooper on August 3, Mr. Cooper said he was feeling the spot, but it was not a huge bother. Based on her communications with Mr. Cooper as well as the injury report, the OHSC noted on Mr. Cooper’s report that he was “Able to perform regular duties, does not require medical aid or any higher medical treatment.” The OHSC closed the injury report.

[17]           Cermaq’s Injury Management Program Coordinator also checked in with Mr. Cooper regarding his back on July 28 and August 10. Mr. Cooper told her that his back was “okay” and that he was receiving acupuncture treatment. He also advised that he was going to seek a medical opinion on the injury but that his regular work duties were not making the injury worse, so he could continue with his work.

[18]           In August, Mr. Cooper broke two of his toes outside of work, while fishing.

[19]           Cermaq says that Mr. Cooper texted his manager [the Manager] around August 19, 2021 to inform him of his foot injury and to tell the Manager that the injury would likely slow him down during his shift the next evening, particularly changing boots. He said that the toes required buddy strapping but “all is in the right place”. The Manager responded that Mr. Cooper could wear his own boots that shift. The Manager says that Mr. Cooper arrived late for his shift the next evening.

[20]           A physical demands assessment was done on August 22, which recommended buddy strapping the broken toes and modified work duties. Cermaq says it modified Mr. Cooper’s work duties accordingly. Mr. Cooper says, however, “the next night my duties had increased with more walking added to the list”, so he “found reasons not to make it into work as much as I could.”

[21]           The Manager says that Mr. Cooper texted him on August 29, 2021, providing a doctor’s note saying that Mr. Cooper needed three days off work due to “medical reasons”. Mr. Cooper told the manager he was experiencing issues and asked about the counselling services available to him. The Manager told Mr. Cooper that counselling services are accessible to all Cermaq employees. As I understand it, Mr. Cooper took the three days off.

[22]           On September 3, 2021, the Manager checked in on Mr. Cooper, asking whether Mr. Cooper would be coming into work that night and how Mr. Cooper would like to be compensated for his days off. Mr. Cooper responded that he would be coming into work. According to the Manager, Mr. Cooper was late for his shift that evening. As I understand it, Mr. Cooper missed further days of work after this initial shift back due to a possible COVID-19 infection.

[23]           The Manager says that a decision to terminate Mr. Cooper’s employment was made in early September 2021. He says in the materials before me, the decision was made because he had lost trust in Mr. Cooper due to his tardiness to work and his failure to use the loner device properly, which were breaches of company policy and procedure.  

[24]           In the materials before me is a September 8, 2021 text message exchange between Mr. Cooper and the Manager. Mr. Cooper messages the Manager to inform him that he has a physical therapy appointment for his lower back, which he allegedly had injured during his September 3 shift. In response, the Manager says that he would like to meet with Mr. Cooper. During that meeting, the Manager informed Mr. Cooper that his employment was terminated. The termination letter, which the Manager signed on September 10, 2021, says that Mr. Cooper’s employment was terminated for “failure to keep your loner device on”. 

[25]           Mr. Cooper says that his back had not fully healed in three weeks and that “They terminated me on the day of my first physio appointment.”

[26]           Neither party says what role, if any, Ms. Brown played in the decision to terminate Mr. Cooper’s employment or the alleged failure to accommodate his injuries.

III     DECISION

[27]           The Respondents apply to dismiss Mr. Cooper’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.

[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 his complaint at a hearing, Mr. Cooper will have to prove that he has a characteristic protected by the Code, he was adversely impacted in employment, and his protected characteristic was a factor in the adverse impact: Moore at para. 33. If he did that, the burden would shift to the Respondents to justify the impact as a bona fide occupational requirement. If the impact is justified, there is no discrimination.

A.    Protected Characteristic

[32]           First, the Respondents argue that Mr. Cooper has no reasonable prospect of establishing that he had physical disabilities protected by the Code. Based on the materials before me, I disagree.

[33]           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 Tribunal considers “the individual’s physical or mental impairment, if any; the functional limitations, if any, which result from that impairment; and the social, legislative or other response to that impairment and/or limitations”, with the focus being on the third element: Morris v. BC Rail, 2003 BCHRT 14 at para. 214. The Tribunal has said that meeting this part of the test requires proof of a “physiological state that is involuntary, has some degree of permanence, and impairs the person’s ability, in some measure, to carry out the normal functions of life”: Boyce v. New Westminster (City), 1994 CanLII 18445 (BC HRT) at para. 50.

[34]           Ailments which do not constitute an obstacle to full participation in society are not considered disabilities: Jickling v. Sweet Meadows Market (No. 2), 2024 BCHRT 325 at para. 21. However, whether a temporary or treatable condition constitutes a disability is a question of fact in each case: Wali v. Jace Holdings, 2012 BCHRT 389 at para. 82. A disability is not limited to ongoing or chronic conditions and may include conditions that have resolved or require a temporary leave from work: Derek v. Aspen Planers, 2018 BCHRT 266 at para. 44.

[35]           Here, the Respondents argue that “It is unclear how the Complainant’s toe injury or alleged back injury had a degree of permanence, or how it impaired his ability to carry out the normal functions of life.” However, the materials before me indicate that Mr. Cooper required modified work duties to accommodate his broken toes. While the evidence indicates that Mr. Cooper’s back injury did not affect his job performance, I am not prepared to say that Mr. Cooper has not taken this element out of the realm of conjecture, where the evidence also indicates that he was receiving acupuncture for the injury. If this case went to a hearing, more evidence and argument would almost certainly be required to establish Mr. Cooper’s disabilities. But for the purpose of this application, I am satisfied he has met the low bar of bringing this element of the complaint beyond the realm of mere conjecture.

B.     Adverse Impacts

[36]             Mr. Cooper alleges he experienced two adverse impacts in relation to his employment. First, he argues that the termination of his employment constitutes an adverse impact. Second, he says that he was adversely impacted by the Respondents’ failure to accommodate him.

[37]           The Respondents seem to concede that the termination of Mr. Cooper’s employment could constitute adverse treatment. Indeed, it is well established that termination from employment is an adverse impact for the purposes of human rights law: Carney v. Pro‐Can Construction Group, 2020 BCHRT 62 at para. 22.

[38]           Turning to Mr. Cooper’s allegation that the Respondents failed to accommodate him, Mr. Cooper has alleged that he experienced barriers to his employment after he injured his back and toes. In particular, he says that certain of his work duties affected his back and that he needed a change in duties as a result, but there was no change. Mr. Cooper also says that his duties increased after he broke his toes, requiring him to walk more. He says that the increase in his workload led him to miss work.

[39]           The Respondents counter these allegations in their application to dismiss, saying that they understood from Mr. Cooper’s injury report and Mr. Cooper’s own statements that Mr. Cooper did not need any accommodations for his back injury. And they say that they modified Mr. Cooper’s work duties as recommended by the physical demands assessment for his broken toes.

[40]           On the whole of the materials before me, including the information contained in the complaint form, I am satisfied that this aspect of Mr. Cooper’s complaint has no reasonable prospect of success. The information contained in Mr. Cooper’s complaint seems to conflict with the Respondent’s evidence on this application to dismiss. In some circumstances this would require a hearing to resolve. In this case, however, I find that I can resolve the discrepancy in the factual assertions based on corroborative evidence in the materials: Monnette v. BC (Ministry of Justice), 2017 BCHRT 34 at para. 34.

[41]           In terms of the back injury, Mr. Cooper says that he required modified work duties, which he says Cermaq failed to accommodate. However, the emails between Mr. Cooper and Cermaq as well as the injury report, say that Mr. Cooper was able to perform his regular duties. There is no evidence before me that Mr. Cooper notified Cermaq that certain duties affected his back. And while Mr. Cooper did seek physical therapy for his back on the day that his employment was terminated, the evidence before me indicates that the treatment was for a new back injury.

[42]           Even if I were satisfied that Mr. Cooper had taken his allegation of adverse impact out of the realm of conjecture, I am also satisfied that the Respondents are reasonably certain to prove a justification defence at a hearing with regards to their attempts to accommodate Mr. Cooper’s back injury.

[43]           In the accommodation process, both parties have obligations: Flynn v. DF Architecture Inc. (No. 2), 2025 BCHRT 81 at para. 1. While the bulk of these obligations fall to the employer, the employee must give the employer enough information to reasonably alert the employer that accommodation might be needed: Central Okanagan School District No. 23 v. Renaud, 1992 CanLII 81 (SCC), [1992] 2 SCR 970 [Renaud]. Here, Mr. Cooper told the Respondents that he injured his back, but the evidence before me indicates that Mr. Cooper did not tell Cermaq that he required modified work duties. And there is no other evidence before me that anything else should have alerted Cermaq to the need for accommodation. Rather, the evidence before me indicates that when Cermaq made inquires, Mr. Cooper told Cermaq that he could perform his work as usual. If a person requires accommodation, it is their responsibility to bring forward the relevant facts: Renaud. I am satisfied based on the materials before me that the Respondents are reasonably certain to prove that Mr. Cooper failed in his obligations as the person seeking accommodation.

[44]           In terms of the broken toes, Mr. Cooper says that after the physical demands assessment was done, the Respondents failed to modify his work duties as recommended. He says that he was required to walk more, which caused him to miss work. However, the Manager says in his affidavit that Mr. Cooper’s work duties were modified. Further, the contemporaneous materials in the evidence before me indicate that Mr. Cooper missed work not because of the broken toes but rather due to mental health issues and a possible COVID-19 infection. I therefore find that I can resolve the discrepancy in the factual assertions based on corroborative evidence in the materials. I am satisfied based on these materials that this aspect of Mr. Cooper’s complaint has no reasonable prospect of success.

C.     Nexus

[45]           Next, the Respondents argue that Mr. Cooper has no reasonable prospect of proving that his termination was connected to his alleged physical disabilities. I agree.

[46]           Giving Mr. Cooper’s complaint a broad and generous reading, he seems to suggest that his injuries and his termination are related given the timing between the two. The Tribunal has consistently held that the timing of an event can support an inferred connection between a protected characteristic and an adverse impact: Parry v. Vanwest Collee, 2005 BCHRT 310 at para. 63; Morris v. BC Rail, 2003 BCHRT 14. Timing alone, however, is not always sufficient to prove nexus. While the Tribunal may draw inferences based on the timing of events. The Tribunal has explained that:

…an inference [arising from] the timing of a termination…is just that, an inference. It can be strengthened by other evidence to support discrimination, or, conversely [it can be] displaced by evidence of a non-discriminatory reason for the termination: Harris v. Rize Alliance Properties and another, 2019 BCHRT 223 at para. 31. 

[47]           Here, I find that any inference of discrimination that could be drawn given the timing of events is displaced by the Respondents’ evidence of a non-discriminatory reason for the termination. The Respondents have provided affidavits with documents supporting their claim that Mr. Cooper’s employment was terminated due to ongoing performance issues, which started soon after Mr. Cooper began working the overnight shift and predate Mr. Cooper’s injuries. The Respondents say Mr. Cooper was verbally warned about the performance issues, which included Mr. Cooper failing to use the loner device according to policy and Mr. Cooper’s tardiness. Mr. Cooper does not dispute this. While Mr. Cooper says that his loner device was malfunctioning, he also admits that he turned off the loner device because he did not like the alarms. Further, there is no evidence before me that Mr. Cooper informed the Respondents that his device was malfunctioning. This is bolstered by the contemporaneous documentary evidence in the materials that shows Mr. Cooper’s loner device functioned properly.

[48]           On the whole of the materials before me, I am satisfied there is no reasonable prospect that Mr. Cooper could establish a connection between a disability and the termination. I am satisfied that the Respondents are reasonably certain to establish a non-discriminatory reason for the termination: Mr. Cooper’s purported performance issues, which he does not allege were related to any disability.

IV    CONCLUSION

[49]           I am satisfied that there is no reasonable prospect that Mr. Cooper could establish his case of discrimination. I dismiss Mr. Cooper’s complaint under s. 27(1)(c) of the Code. The complaint will not proceed.

Robin Dean

Tribunal Member