Gesslein v. Ministry of Social Development and Poverty Reduction and others, 2025 BCHRT 143
Date Issued: June 17, 2025
File: CS-006573
Indexed as: Gesslein v. Ministry of Social Development and Poverty Reduction and others, 2025 BCHRT 143
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:
Tanya Gesslein
COMPLAINANT
AND:
His Majesty the King in right of the province of British Columbia as represented by the Ministry of Social Development and Poverty Reduction and Shawn Jackson and Melony Forster and Scott Hill and Jeanette Gault and Hayley Young and Judy D’Gal
RESPONDENTS
REASONS FOR DECISION
APPLICATION TO DISMISS A COMPLAINT
Section 27(1)(f)
Tribunal Member: Andrew Robb
On her own behalf: Tanya Gesslein
Counsel for the Respondents: Zachary Ansley
I INTRODUCTION
[1] Tanya Gesslein was employed by the Ministry of Social Development and Poverty Reduction [the Ministry]. Her human rights complaint says the Ministry discriminated against her on the grounds of her disability and family status, contrary to s. 13 of the Human Rights Code. The individual respondents are managers in the Ministry.
[2] Ms. Gesslein’s position was unionised, and was subject to a collective agreement between her union and the BC Public Service Agency. She filed grievances and harassment complaints under the collective agreement, which referred to some of the same events described in her human rights complaint. An arbitration panel was appointed. The panel held a hearing, made findings of fact, and awarded a remedy to Ms. Gesslein.
[3] The Ministry applies to dismiss the complaint, arguing that the arbitration panel decision appropriately dealt with the substance of the complaint. Ms. Gesslein disputes this. She says the panel decision did not deal with her human rights complaint. She says the remedy awarded by the panel was inappropriate. She says the Tribunal should “pick up where the panel left off”, and address issues that were not addressed by the panel. She also suggests the panel’s hearing process was inadequate.
[4] For the reasons set out below, I allow the Ministry’s application, and I dismiss the complaint. I find the arbitration panel had jurisdiction to decide human rights issues, and made decisions about the same issues that arise from Ms. Gesslein’s human rights complaint. Ms. Gesslein had the opportunity to know the case she had to meet, in the panel’s process, and had a fair chance to meet it. I am satisfied that the arbitration panel appropriately dealt with the substance of the human rights 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.
II BACKGROUND
[6] Ms. Gesslein started working in the BC Public Service in 2005. Around 2012 or 2013, her work schedule was modified, at her request. She is a parent, and she says the modification allowed her to fulfill her childcare obligations. She moved to the Ministry in 2015, where she continued to have a modified work schedule.
[7] In April 2020, Ms. Gesslein went on medical leave from her work at the Ministry. She says this was due to a mental disability. When she returned to work, in September 2020, she had a new supervisor, the respondent Mr. Jackson.
[8] Shortly after her return to work, Mr. Jackson told Ms. Gesslein the modified work schedule would be discontinued, and she would be expected to work the same hours as the rest of her work group. Ms. Gesslein says Mr. Jackson took additional actions against her which amounted to harassment, including assigning her tasks with unrealistic deadlines, harassing her about an overpayment of her salary, giving her inadequate time to complete a performance review exercise, and calling her on her personal phone when she had to take time off. Ms. Gesslein submitted a bullying and harassment complaint against Mr. Jackson and a related grievance against the Ministry for failing to honour her modified schedule.
[9] Ms. Gesslein says Ms. Forster, another supervisor in her department, also singled her out for poor treatment. She says Ms. Forster questioned her about her working hours, demanded she take leave without pay when she was unable to work for reasons beyond her control, and told her co-workers not to answer her work-related questions. She also says Ms. Forster required her to continue reporting to Mr. Jackson even after she submitted the bullying and harassment complaint against him. Based on these allegations, Ms. Gesslein submitted a bullying and harassment complaint against Ms. Forster.
[10] In November 2020, Ms. Gesslein formally requested that her modified work schedule be continued as an accommodation based on her disability and her family status. She provided a doctor’s note supporting her request. The Ministry denied the request, and confirmed that her modified work schedule would be discontinued as of December 21, 2020, and she would be expected to work the same hours as her co-workers. Ms. Gesslein then filed a second grievance alleging the Ministry failed to accommodate her, on the grounds of her mental disability and family status.
[11] Before her modified work schedule was discontinued, Ms. Gesslein went back on medical leave. She remained off work until 2023. When she returned to work it was in a different role, reporting to different managers, with her preferred work schedule.
[12] The arbitration panel was appointed to address Ms. Gesslein’s grievances and her bullying and harassment complaints. The panel issued its decision on November 27, 2023. The panel found Ms. Gesslein’s new position, with new reporting requirements and her preferred schedule, following a medical leave during which she received disability benefits, resolved some of the issues in her complaints and grievances. Consequently, the decision focused on her claims for damages and wage loss, and her request for remedial orders requiring that Ministry employees receive additional training.
[13] The panel’s decision referred to Ms. Gesslein’s human rights complaint, which was being held in abeyance pending the outcome of the arbitration process. The panel said the human rights complaint “involves essentially the same discrimination-based allegations as those raised and pursued in these proceedings.”
[14] The panel’s findings included the following:
a. Ms. Gesslein’s grievances had no merit. Ms. Forster and Mr. Jackson had not singled Ms. Gesslein out for poor treatment, and there was no basis for concluding they acted in bad faith or for improper reasons. After she was told her modified work schedule would be discontinued, Ms. Gesslein began to view all managerial action that she did not like as mistreatment.
b. The Ministry had not agreed to permanently modify Ms. Gesslein’s work schedule. The modified schedule was the result of an informal arrangement, but with no guarantee it would continue indefinitely.
c. The discontinuance of her modified work agreement was not discriminatory, arbitrary, or unreasonable. It was a legitimate operational decision, to ensure Ms. Gesslein’s schedule was consistent with her co-workers’ schedules.
d. There was no violation of Ms. Gesslein’s human rights. The two grounds alleged—mental disability and family status—were closely tied together, as her disability claim was based on not being allowed to continue with a work schedule that accommodated her childcare obligations. Ms. Gesslein’s doctor’s note did not establish that there was a medical basis for her modified work schedule.
e. The decision to discontinue her modified work schedule did not seriously interfere with a substantial parental duty. The panel cited case law and found this was a requirement for a finding of family status discrimination.
f. Ms. Gesslein was not entitled to damages for injury to dignity because there had been no discrimination. Nor was there a basis to order the remedial training for Ministry staff that Ms. Gesslein sought in her grievance.
g. However, Ministry management was generally insensitive to Ms. Gesslein’s mental disability, which appeared to have been exacerbated by the decision to discontinue her modified work schedule. Management disregarded her mental health condition in its decisions about her, which led to her going back on medical leave in December 2020. She should have been given lengthier notice of the change to her schedule.
h. Ms. Gesslein was subject to investigations and invasions of her privacy that could have been avoided if management was more sensitive to the circumstances surrounding her return to work after a mental health leave.
[15] As a remedy for the harassment complaints, the panel awarded a lump sum payment of $15,000.00, less statutory deductions, to Ms. Gesslein.
[16] There was no appeal or judicial review of the panel’s decision.
III DECISION
[17] The Tribunal may dismiss a complaint under s. 27(1)(f) of the Code if the substance of the complaint has been appropriately dealt with in another proceeding. The principles underlying s. 27(1)(f) flow from the doctrines of issue estoppel, collateral attack and abuse of process, and include finality, fairness, and protecting the integrity of the administration of justice by preventing unnecessary inconsistency, multiplicity, and delay: British Columbia (Workers’ Compensation Board) v. Figliola, 2011 SCC 52 [Figliola] at paras. 25 and 36.
[18] To decide whether the substance of a complaint has been appropriately dealt with in another proceeding, the Tribunal must ask itself three things:
a. Did the other proceeding have concurrent jurisdiction to decide human rights issues?
b. Was the previously decided legal issue essentially the same as what is being complained of to the Tribunal?
c. Did the complainant or their privies have the opportunity to know the case to be met and have a chance to meet it, regardless of how closely the previous process mirrored the process the Tribunal prefers or uses itself?
Ultimately, the Tribunal must decide “whether it makes sense to expend public and private resources on the relitigation of what is essentially the same dispute”: Figliola at para. 37.
[19] There is no dispute that the arbitration panel had concurrent jurisdiction to decide human rights issues: Labour Relations Code, s. 89(g); Sebastian v. Vancouver Coastal Health Authority, 2019 BCCA 241 at para. 37. But Ms. Gesslein denies that the panel decided the issues that arise in her human rights complaint, and suggests the panel’s process was inadequate.
[20] I find the arbitration panel decided essentially the same issues that Ms. Gesslein complains about to the Tribunal. Her human rights complaint alleged discrimination on the grounds of mental disability and family status. Regarding family status, the complaint alleged that the discontinuance of her modified work schedule left her unable to fulfill her parental responsibilities. Regarding mental disability, the complaint said Mr. Jackson and Ms. Forster singled her out for poor treatment, including harassment and bullying, because she went on medical leave in 2020 for reasons related to a mental disability. The complaint said the other individual respondents failed to prevent the harassment by Mr. Jackson and Ms. Forster, and in some cases they participated in the harassment, or provided false information to the people who investigated Ms. Gesslein’s harassment allegations.
[21] The arbitration panel decision addressed the arguments in Ms. Gesslein’s human rights complaint. Regarding Ms. Gesslein’s argument that the individual respondents harassed her, the panel found there was no objective support for her claim that she was singled out or targeted in any way, and no evidence that Mr. Jackson or Ms. Forster acted with any improper motivation. The panel found the Ministry was generally insensitive to Ms. Gesslein’s mental disability, and failed to consider that she had recently returned from a medical leave that was likely related to a mental disability, in making the decision to discontinue her modified work schedule. This was the basis for the decision to award her a lump sum payment.
[22] I do not accept Ms. Gesslein’s submission that the arbitration panel did not address her allegation, in the human rights complaint, that she was treated differently after returning from medical leave. The panel addressed this allegation in the context of her harassment complaints. The panel found there was no evidence that she was treated differently from other employees, but that Ministry decisions were made without due consideration of the fact that she had just returned from medical leave.
[23] The arbitration panel also considered Ms. Gesslein’s allegation that the decision to discontinue her modified schedule was discriminatory. The panel cited Moore v. British Columbia (Education), 2012 SCC 61, British Columbia (Human Rights Tribunal) v. Gibraltar Mines Ltd., 2023 BCCA 168, and other cases under the Code, and found the principles set out in these cases were engaged by Ms. Gesslein’s grievance, but there was no violation of her human rights. The panel considered her childcare obligations, and found the decision to discontinue her modified schedule did not amount to a serious interference with a substantial parental duty, so there was no discrimination on the ground of family status.
[24] I do not accept Ms. Gesslein’s submission that the arbitration panel failed to consider the Ministry’s duty to accommodate her to the point of undue hardship. In human rights law, the duty to accommodate does not arise until a complainant establishes that they were adversely impacted in connection with their protected characteristics. The panel’s findings indicate that Ms. Gesslein did not experience an adverse impact that was connected to her disability or her family status. Based on these findings, the panel found that accommodation was not warranted.
[25] Nor do I accept Ms. Gesslein’s submission that the arbitration panel did not consider her allegations about invasions of her privacy by some of the individual respondents, after she filed her grievances and harassment complaints. The panel cited the invasions of her privacy in deciding to award her a lump sum payment, in the context of her harassment complaints.
[26] Although the panel decision did not address all the allegations in Ms. Gesslein’s complaint, against all the individual respondents, this does not preclude dismissal under s. 27(1)(f): Figliola at para. 52. The main issues in the human rights complaint are Ms. Gesslein’s allegations about poor treatment because she had a mental disability and went on leave, and the decision to discontinue her modified work schedule. I am satisfied that the panel’s decision addressed these issues.
[27] Ms. Gesslein argues that the remedy awarded by the arbitration panel was inadequate and did not consider the full extent of her financial losses from her medical leave starting in December 2020. But the panel’s reasons show the panel considered the full amount of wage loss she sought, and determined that the case did not warrant an award of more than $15,000. Even if I was of the opinion that the remedy was inadequate, that would not be a principled basis on which to decline to dismiss the complaint. Figliola instructs the Tribunal on what to consider under s. 27(1)(f), and adequacy of the remedy is not a consideration.
[28] Turning to the arbitration panel’s process, Ms. Gesslein suggests it was flawed because it was not a full arbitration, and no witnesses were permitted during the hearing. The panel’s reasons show that the panel accepted that the circumstances leading to Ms. Gesslein’s harassment complaints and grievances were largely resolved by her new position, when she returned to work in 2023, and on this basis the panel directed that the hearing could proceed based solely on written submissions on the outstanding remedial issues. Ms. Gesslein was supported by her union and represented by counsel, who gave a presentation at the panel hearing, supplemented by written submissions after the hearing.
[29] Although Ms. Gesslein was unable to call witnesses at the arbitration panel hearing, I am satisfied she had notice of the case to meet and a fair chance to meet it. It is not necessary, in an application under s. 27(1)(f) of the Code, for the prior process to be a “procedural mimic” of the Tribunal’s process: Figliola at para. 49. Ms. Gesslein had ample opportunity to air her grievances before the panel.
[30] The arbitration panel addressed essentially the same dispute that arises from Ms. Gesslein’s human rights complaint. In these circumstances, it does not make sense to expend further resources on the relitigation of this dispute.
IV CONCLUSION
[31] The complaint is dismissed under s. 27(1)(f) of the Code.
Andrew Robb
Tribunal Member