Psychologist v. Calian Ltd. and others, 2025 BCHRT 155
Date Issued: June 27, 2025
File: CS-005950
Indexed as: Psychologist v. Calian Ltd. and others, 2025 BCHRT 155
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:
Psychologist
COMPLAINANT
AND:
Calian Ltd. and Contract Manager and Vice President
RESPONDENTS
REASONS FOR DECISION
APPLICATION TO DISMISS A COMPLAINT
Section 27(1)(c) and (d)(ii)
Tribunal Member: Edward Takayanagi
Counsel for the Complainant: Alison Moore
Counsel for the Respondents: Sarah Antonious
I INTRODUCTION
[1] The Psychologist alleges that Calian Ltd. its Contract Manager and Vice President discriminated against them in employment based on physical disability contrary to s. 13 of the Human Rights Code. They say they have disabilities that make them clinically vulnerable and at increased risk of complications from COVID-19, and when they requested to work remotely the Respondents failed to accommodate them and ultimately terminated their employment contract.
[2] The Respondents deny discriminating. They apply to dismiss the complaint under s. 27(1)(c) of the Code. They say the Psychologist has no reasonable prospect of proving they were adversely impacted in employment because they say the Psychologist was an independent contractor, not an employee. They also say they are reasonably certain to establish at a hearing that they took all reasonable and practical steps to accommodate the Psychologist.
[3] The individual respondents apply to dismiss the complaint as against them under s. 27(1)(d)(ii) because they say they were acting solely in their capacity as employees of Calian and it would not further the purposes of the Code to proceed against them.
[4] For the reasons that follow I allow the application to dismiss as against the individual respondents and deny the application to dismiss as against Calian. The parties agree that the actions taken by the individual respondents were made in the ordinary course of their employment. Calian has acknowledged its responsibility to satisfy any remedial award ordered. The complaint against the Contract Manager and Vice President is dismissed.
[5] I am not persuaded that the Psychologist has no reasonable prospect of proving at a hearing that their relationship fell within the scope of s.13. Section 13 of the Code is not limited to employer-employee relationships, as those terms are understood in other areas of law. The complaint against Calian will proceed.
[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 background facts are taken from the parties’ materials. I make no findings of fact.
[8] Calian is a company that provides medical services to its client, the Canada Border Services Agency [CBSA]. The Contract Manager and Vice President are employees of Calian.
[9] The Psychologist has Hypermobile Ehlers Danlos Syndrome [hEDS], a genetic disorder that causes migraines, sciatica, chronic fatigue, digestive issues, and cardiovascular issues. People with hEDS are at increased risk of complications from COVID-19.
[10] On November 27, 2019, the Psychologist contracted with Calian to provide psychological services for CBSA, to its detainees at its immigration holding center. The contract was effective from January 6, 2020, to May 23, 2022. Psychological services were to be provided onsite at the holding center.
[11] In or around March 2020, the Province of BC declared a state of emergency in response to the COVID-19 pandemic. CBSA adjusted its service model to provide all psychological services to detainees virtually. The Psychologist began providing their services virtually from their home.
[12] In or around October 2021, CBSA informed the Contract Manager that it would resume onsite services and would require the Psychologist to return to the onsite holding center to provide psychological services.
[13] On October 12, 2021, the Contract Manager emailed the Psychologist to advise them of the need to return to onsite services at the holding center. They said that as of October 19, 2021, CBSA required all of its service providers to provide onsite service only.
[14] On October 24, 2021, the Psychologist emailed the Contract Manager to say they cannot work onsite during the ongoing COVID-19 pandemic due to medical issues. They attached a note from their physician dated October 20, 2021, which states that the Psychologist “is unable to work on site for medical reasons until further notice.”
[15] On October 27, 2021, the Contract Manager emailed the Psychologist to say that the requirement to provide psychological services onsite is a CBSA mandate. They also informed the Psychologist that in accordance with the federal vaccine mandate, the CBSA staff are fully vaccinated and that they have installed plexiglass dividers and distancing requirements to provide a safe work environment. The Psychologist continued to assert that they could not work onsite due to medical reasons.
[16] On November 5, 2021, the Contract Manager emailed the Psychologist requesting further information about their specific limitations or restrictions to consider what accommodations may be possible. The Psychologist responded on November 8, 2021, providing a second doctor’s note stating, “Due to medical reasons, [the Psychologist] is required to work off-site as [they have] for the past year and a half.”
[17] On November 12, 2021, the Contract Manager emailed CBSA requesting an update on remote work and whether there were services that could be provided remotely. The CBSA responded on November 16, 2021, stating that it had returned to normal operations with all of its staff working in-person onsite.
[18] On November 23, 2021, the Psychologist phoned a manager at CBSA to discuss the requirement that services be provided onsite. The manager said it was Calian’s decision to require work to be performed onsite and CBSA would not have an issue with the Psychologist working remotely or finding other accommodations for them.
[19] On November 25, 2021, the Contract Manager sent a letter to the Psychologist stating that CBSA requires all services to be provided onsite. They asked the Psychologist to provide information about their limitations and restrictions caused by their disability so they could consider appropriate accommodations. They said that without such information they would be unable to accommodate the Psychologist and would result in termination of their contract.
[20] On November 29, 2021, the Psychologist responded to the Contract Manager saying they have already provided medical information about their limitation which is that they cannot work onsite. The Psychologist said that CBSA informed them that it was possible to work remotely and the requirement that the Psychologist return onsite appeared to be a decision made by Calian.
[21] On November 30, 2021, CBSA emailed the Contract Manager saying that CBSA’s assistant director said they are “supportive of all assessments being fully on-site again, except for exceptional circumstances.” On the same day, the Vice President emailed the Psychologist stating that CBSA requires services onsite, but Calian wanted to find a way to accommodate the Psychologist. They repeated the request for information about the Psychologist’s limitations and restrictions to explore viable accommodations.
[22] On December 17, 2021, the Contract Manager emailed the Psychologist to say that they appeared to be at an impasse because CBSA requires all services to be performed onsite, and the Psychologist cannot work onsite.
[23] On December 20, 2021, the Contract Manager emailed the Psychologist terminating the contract with the Psychologist to provide services to CBSA.
III DECISION
A. Section 27(1)(d)(ii)
[24] The Respondents apply for, and the Psychologist consents to the dismissal of the complaint against the individual respondents under s. 27(1)(d)(ii). Calian confirms that the actions taken by the Contract Manager and the Vice President were made in the ordinary course of their employment and that, if the complaint is justified, any remedial order would be satisfied by Calian. In these circumstances I find it appropriate to dismiss the complaint as against the individual respondents.
B. Section 27(1)(c)
[25] 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.
[26] 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.
[27] 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.
[28] To prove their complaint at a hearing, the Psychologist will have to prove that they have a characteristic protected by the Code (in this case a physical disability), they were adversely impacted in employment, and their protected characteristic was a factor in the adverse impact: Moore v. British Columbia (Education), 2012 SCC 61 at para. 33. If they did that, the burden would shift to Calian to justify the impact as a bona fide occupational requirement. If the impact is justified, there is no discrimination.
[29] Calian says there is no reasonable prospect the Psychologist will be able to prove they were adversely impacted in employment because they were an independent contractor and not an employee. For the purposes of this application, it does not dispute that the Psychologist has a physical disability under the Code, that termination of employment is an adverse impact, or that the Psychologist not providing onsite services was a reason for the termination of their contract. In addition to its independent contractor argument, Calian also argues the complaint has no reasonable prospect of success because it is reasonably certain to prove a defense at the hearing: Purdy v. Douglas College and others, 2016 BCHRT 117 at para. 50.
[30] To justify an adverse impact at a hearing, Calian would have to prove that: (1) they adopted the standard for a purpose rationally connected to the performance of a job, (2) they adopted the standard in an honest and good faith belief that it was necessary to the fulfillment of that legitimate purpose; and (3) the standard is reasonably necessary to the accomplishment of that legitimate purpose. This third element encompasses their duty to accommodate [the complainant] 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.
[31] The standard in this case is on-site work. Calian says it is reasonably certain to prove at a hearing that requiring the Psychologist to return to onsite work is a bona fide occupational requirement. It says the standard is rationally connected to the performance of the job, adopted in good faith, and they could not have done anything else reasonable or practical to avoid terminating the Psychologist’s contract.
[32] I begin my analysis with whether the Psychologist has no reasonable prospect of establishing that they were in an employment relationship with Calian for the purposes of the Code.
[33] The Tribunal interprets the meaning of employment for the purposes of s.13 broadly and purposively: British Columbia Human Rights Tribunal v. Schrenk, 2017 SCC 62 at para. 31. On this broad definition of employment, independent contractors have been found to be employees under the Code. This is so, even though they may not be considered employees in other legal contexts. The test for determining who is in an employment relationship rests on two factors: “control exercised by an employer over working conditions and remuneration, and corresponding dependency on the part of a worker”: McCormick v. Fasken Martineau DuMoulin LLP, 2014 SCC 39 at para. 22-23.
[34] In McCormick the Court referred to factors set out in Crane v. British Columbia (Ministry of Health Services) (No. 1), 2005 BCHRT 361, which may be helpful in assessing the extent of control and dependency in the relationship between parties. These factors include whether the respondent gained some benefit from the complainant, whether they exercised control over the complainant’s wages, conditions of employment, or the nature of the work performed, whether they were responsible for remunerating the complainant, and whether they have the ability to remedy any discrimination: McCormick at para. 24.
[35] Applying these factors to the evidence before me, I am not persuaded that there is no reasonable prospect the Tribunal would find after a hearing on the merits that the Psychologist was in an employment relationship with Calian.
[36] The agreement between Calian and the Psychologist, dated November 27, 2019, provides that the Psychologist will provide medical services in a manner that is acceptable to Calian, and that Calian will authorize the specific services to be provided on a day-to-day basis and the applicable schedule requirements. The Psychologist is required to obey all Calian’s rules and regulations, and Calian has the ability to suspend the agreement if the Psychologist does not comply. The agreement is subject to the Psychologist providing continued satisfactory performance and Calian may terminate the agreement if it determines that a term of the agreement has been breached. Calian also set the remuneration rate for the Psychologist’s services.
[37] Calian argues that the Psychologist is a contractor because the agreement expressly provides that the Psychologist can provide services to other organizations and their services are not retained by Calian on an exclusive basis. Calian says the Psychologist only worked about eight hours a month, and Calian did not substantially supervise the Psychologist’s work. Calian has not provided any authorities that support their argument that s.13 should not apply on these facts.
[38] I am not persuaded by Calian’s argument. It is beyond the realm of conjecture that Calian exercised control over the Psychologist’s work, including by: determining their rate of pay; their schedule; the specific services they provided, and whether their services were satisfactory. Calian also had the ability to suspend or end the relationship. I appreciate that Calian did not retain the Psychologist on an exclusive basis and the Psychologist did not work full-time hours. However, these factors do not address the level of control exercised by Calian over the Psychologist’s work within the context of the relationship they did, in fact, have. Considering these factors, I am not satisfied that the Psychologist has no reasonable prospect of proving they were Calian’s employee for the purposes of the Code.
[39] I next turn to Calian’s justification defense. Calian says it is reasonably certain to establish a defense at a hearing. It argues that the requirement for the Psychologist to return to onsite work was a bona fide occupational requirement and it could not have done anything else reasonable or practical to avoid the negative impact on the Psychologist. It argues that it satisfied its obligation to accommodate the Psychologist and that it was the Psychologist who failed to participate in the accommodation process by not disclosing medical information about their functional limitations.
[40] I am unable to conclude that Calian is reasonably certain to prove a defense at a hearing. Central to Calian’s justification defense is that CBSA mandated all services be performed onsite. However, it is not clear on the evidence that this was the case. The Psychologist asserts that the requirement that they return to provide onsite care was made by Calian rather than the CBSA. They have provided contemporaneous notes taken during a phone conversation with a manager at CBSA supporting their assertion that CBSA was open to the Psychologist continuing to work from home. Further, the email correspondence from CBSA shows that CBSA says the assistant director is “supportive of all assessments being fully on-site again, except for exceptional circumstances.” The evidence appears to indicate that working onsite was not required by CBSA in all circumstances. Further, it is unclear to me whether Calian told CBSA about the Psychologist’s accommodation request and sought an exception to working on-site. Therefore, I am not convinced Calian is reasonably certain to prove CBSA would not allow the Psychologist to work from home as a medical accommodation.
[41] Calian also argues that the Psychologist failed to provide medical information and participate in the accommodation process and therefore its obligations came to an end. It is true that the search for accommodation is a multi-party inquiry in which employees have a duty to participate in the accommodation process, and to give employers information to determine what accommodation may be possible: Central Okanagan School District No. 23 v. Renaud, 1992 CanLII 81 (SCC), [1992] 2 SCR. 970 at para. 994; K.B. v. S.S., 2016 BCHRT 61 at para. 136. However, I am not persuaded that it is reasonably certain that the Tribunal would find that the Psychologist failed to participate in an accommodation process. Calian says the Psychologist failed to provide additional medical information despite multiple requests. Here, the evidence is that the Psychologist provided two notes from their doctor and asked what additional information was being sought. The Psychologist sought clarification from Calian about what information it was looking for, and specific questions to put to their doctor. On the materials before me I am not persuaded that it is reasonably certain the Tribunal would find Calian’s obligation to accommodate the Psychologist came to an end because the Psychologist failed to participate in the accommodation process.
[42] Based on the materials before me in this application, I cannot say it is reasonably certain Calian will be able to establish its defense. Therefore, I am not persuaded that the Psychologist’s allegations have no reasonable prospect of success, and I deny the application to dismiss the complaint under s. 27(1)(c) of the Code.
IV CONCLUSION
[43] I allow the application to dismiss the complaint as against the Contract Manager and the Vice President under s. 27(1)(d)(ii) of the Code.
[44] I deny the application to dismiss the complaint as against Calian under s. 27(1)(c) of the Code.
Edward Takayanagi
Tribunal Member