O’Keeffe v. School District No.39 (Vancouver), 2025 BCHRT 159
Date Issued: July 8, 2025
File: CS-004692
Indexed as: O’Keeffe v. School District No.39 (Vancouver), 2025 BCHRT 159
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:
Timothy O’Keeffe
COMPLAINANT
AND:
Board of Education of School District No. 39 (Vancouver)
RESPONDENT
REASONS FOR DECISION
APPLICATION TO DISMISS A COMPLAINT
Section 27(1)(c)
Tribunal Member: Ijeamaka Anika
On their own behalf: Timothy O’Keeffe
Counsel for the Respondent: Adriana Wills
I INTRODUCTION
[1] Timothy O’Keeffe alleges that Board of Education of School District No. 39 (Vancouver) [the School District] discriminated against him on the basis of disability in employment contrary to s. 13 of the Human Rights Code. Mr. O’Keeffe says the School District failed to accommodate his request for accommodation based on his susceptibility to respiratory infections, including COVID-19.
[2] The School District denies discriminating. It says that it sought to accommodate Mr. O’Keeffe but could not implement a reasonable accommodation without further information regarding Mr. O’Keeffe’s disability and Mr. O’Keeffe failed to provide it with that medical information. It says that, as a result, it could not decide on the accommodation request. It applies to dismiss the complaint under s. 27(1)(c) of the Code on the basis that the complaint has no reasonable prospect of success.
[3] Mr. O’Keeffe has not submitted a response to this dismissal application. I am satisfied that he had notice of the dismissal application.
[4] For the reasons that follow, I am persuaded that the School District is reasonably certain to make out a bona fide reasonable justification defence. Specifically, the School District is reasonably certain to prove Mr. O’Keeffe did not participate in the accommodation process and therefore, its obligation came to an end.
[5] To make this decision, I have considered all the materials in this complaint. In these reasons, I only refer to what is necessary to make my decision. I make no findings of fact.
II BACKGROUND
[6] This background is taken from the materials filed by the parties. Where there are disputes in the evidence, I indicate it below.
[7] The School District is a public school district constituted pursuant to the School Act.
[8] Mr. O’Keeffe was employed by the School District as a School and Student Support A (Education Assistant). In 2020, by the time of the events forming the subject of this complaint, Mr. O’Keeffe had been employed by the Vancouver School Board for 30 years.
[9] On March 18, 2020, the Province of BC declared a state of emergency because of the COVID‐19 pandemic. As a result of the pandemic, the School Board suspended education services through early spring 2020 until the provincial government ordered a return to the delivery of education services in hybrid form between May and June 2020.
[10] The School District says that it implemented detailed and comprehensive safety protocols for COVID-19. At the time of the school closure, it developed protocols for working with children including the “Safe Work Instruction and Protocols” for BC Government COVID-19 K-12 Education Plan – Stage 3 (in-class and remote learning) dated May 28, 2020. In July 2020, the BC Ministry of Health provided the K-12 Education Restart Plan in anticipation that all schools would provide education services in Stage 2 (full return to in-class learning) with the goal of maximizing in-class instruction for students in accordance with the revised public health guidelines to reduce the transmission of COVID-19.
[11] In August 2020, Mr. O’Keeffe requested accommodation to work from home. On August 19, 2020, Mr. O’Keeffe emailed the School District stating that due to medical advice, he was requesting an accommodation for the 2020-2021 school year “or until such time as the viral threat either subsides or a vaccine is available” [first request]. His email stated that due to his age (he was 64 years old at the time) and medical history of respiratory issues, he had been advised by his physician that he was at an elevated risk of developing complications if exposed to COVID-19. His medical history included a family history of tuberculosis, a previous pneumothorax (collapsed lung) and episodes of bronchitis and pneumonia. He requested to support students – many of whom were immunocompromised and choosing remote or online learning options – without incurring personal risk of infection. Mr. O’Keeffe sent the School District a medical note from his physician dated April 3, 2020. The medical note stated that Mr. O’Keeffe should not work with students, as “he has a higher chance of developing complications if he were to contract COVID-19.”
[12] The same day, the School District responded to Mr. O’Keeffe’s email stating that due to the BC Government directive to schools to open in Stage 2 on July 29, 2020, the School District would return to full-time in-class learning and that in that Stage, remote work was unavailable. It told Mr. O’Keeffe that its understanding from BC Government agencies including the Centre for Disease Control, WorkSafeBC, Vancouver Coastal Health Authority, and BC Government and the Provincial Health Officer, was that the risk of COVID-19 transmission is low “assuming that you are complying with the Health and Safety protocols and personal hygiene requirements established for schools.” It included a link to the K-12 safety guidelines and told him there would be a two-day orientation for staff regarding safety protocols and hygiene for maintaining safe schools beginning on September 8, 2020. It asked Mr. O’Keeffe for supporting documents that showed the nature of his illness, risk associated with COVID-19 and consequences in reference to the Provincial Health Officer’s statement that children were at low risk of COVID‑19 and that schools were safe. On the materials before me, Mr. O’Keeffe did not respond to this email.
[13] On August 31, 2020, Mr. O’Keeffe emailed the School District another request for accommodation to work remotely [second request]. He stated that since the Vancouver School Board was now able to provide an option for remote learning, he was resubmitting his request to work remotely. In his email, he stated the following: he was at a higher risk of developing complications from COVID-19 due to his age and medical history; without comprehensive testing of all students and staff, the Vancouver School Board could not guarantee a COVID-19 free workplace; while others may become “somewhat sick”, he was more likely to become seriously ill or die. Mr. O’Keeffe also resent his physician’s letter from April 3, 2020, with an annotation that the letter was updated on August 31, 2020. The details of the letter remained the same.
[14] The School District responded the same day. It said that it was meeting with union executives to discuss what options were available in Phase 2 given that it required a full return to in-class learning. It requested Mr. O’Keeffe’s updated medical information and a description of the steps he was taking to mitigate exposure to COVID-19 in his home environment by September 3, 2020. The School District says that Mr. O’Keeffe did not provide it with any further information.
[15] The School District submits there was no further discussion about accommodation after this. The School District says that Mr. O’Keeffe retired effective July 1, 2022.
III DECISION
[16] The School District applies to dismiss Mr. O’Keeffe’s complaint on the basis that it has no reasonable prospect of success: Code, s. 27(1)(c). In this application, the burden is on the School District to establish the basis for dismissal.
[17] 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.
[18] 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.
[19] 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. The threshold to move the complaint forward to a hearing is low.
[20] To prove his complaint at a hearing, Mr. O’Keeffe will have to prove that (1) he has a disability, (2) he was adversely impacted in employment, and (3) that his protected characteristic was a factor in the adverse impact: Moore v. British Columbia (Education), 2012 SCC 61 at para. 33. Mr. O’Keeffe is not required to prove the complaint at this time but need only point to some evidence capable of taking his complaint “out of the realm of conjecture”: Berezoutskaia at para. 24.
[21] If he does that, the burden will shift to the School District to justify the impact as a bona fide reasonable justification. If the School District justifies the impact, there is no discrimination.
[22] The School District argues that the complaint has no reasonable prospect of success because it is reasonably certain to prove a defence at the hearing: Purdy v. Douglas College and others, 2016 BCHRT 117 at para. 50. For that reason, I will assume without deciding that Mr. O’Keeffe has taken the elements of his case out of the realm of conjecture.
[23] To justify denying Mr. O’Keeffe’s request to work from home, the School District would have to prove that: (1) it adopted the standard of in-person attendance for all staff for a purpose rationally connected to the performance of the job, (2) it adopted the standard in an honest and good faith belief that it was necessary to the fulfilment of that legitimate purpose; and (3) the standard is reasonably necessary to the accomplishment of that legitimate purpose. This third element encompasses the School District’s duty to accommodate Mr. O’Keeffe 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.
[24] As noted above, Mr. O’Keeffe has not submitted a response to this dismissal application. I am satisfied that Mr. O’Keeffe had notice of the application. Nonetheless, I have considered the whole of the evidence before me, and I am satisfied that the School District is reasonably certain to establish the three elements at a hearing. I set out my reasons next.
[25] There is no dispute that the School District adopted the requirement of in-person work for all staff in compliance with BC Provincial Government’s expectation that in-person educational services would be provided in September 2020 and beyond. There is also no dispute that the School District adopted the requirement of in-person work in an honest and good faith belief that it was necessary to maximize in-class instruction for all students.
[26] The crux of the issue is the third element of the test: whether the School District is reasonably certain to prove it required the information it sought in order to determine what accommodation Mr. O’Keeffe required and what it could provide short of undue hardship. In the accommodation process, it is the employer who bears the primary responsibility. However, it is well-established that employees have an obligation to cooperate and participate within that process: Central Okanagan School District No. 23 v. Renaud, 1992 SCR 970 at pp. 994-995. The Tribunal has stated that, generally, if a person requires accommodation, it is their responsibility to bring forward the relevant facts: Flynn v. DF Architecture Inc. (No. 2), 2025 BCHRT 81 at para. 42 citing Renaud.
[27] Based on Mr. O’Keeffe’s complaint form, I understand his argument to be that it is not reasonably certain that the School District will make out the third element of Meiorin at a hearing because, he says, the School District failed to accommodate him. He says that the School District did not take meaningful steps to accommodate him because his request was denied without due consideration – within hours of making the request despite his physician’s letter documenting and supporting the request. The School District disputes this and argues that it sought to accommodate Mr. O’Keeffe but could not implement a reasonable accommodation without further information regarding Mr. O’Keeffe’s disability. It says it requested current medical information to enable it to determine if Mr. O’Keeffe had a disability that would prevent him from attending work and being in contact with students and to enable it to canvass its operations to determine whether it could accommodate Mr. O’Keeffe by providing him with work that did not require him to report to the worksite and/or be in contact with students.
[28] On this third element, I am persuaded that it is reasonably certain that the School District would establish that it discharged its duty to accommodate Mr. O’Keeffe. After Mr. O’Keeffe’s first request, the School District requested specific medical information regarding Mr. O’Keeffe’s vulnerability to COVID-19 to enable it to consider his request to work from home. While employers are not entitled to all medical information about an employee, they are entitled to the information that is required to formulate a reasonable accommodation: Flynn at para. 44 citing Gordy v. Painter’s Lodge (No. 2), 2004 BCHRT 225 at para. 84. That information includes “the employee’s current medical condition, prognosis for recovery, ability to perform job duties, and capabilities for alternate work”: Gordy at para. 84. On the materials before me, Mr. O’Keeffe did not provide any further medical information. Following Mr. O’Keeffe’s second request, the School District again asked for updated medical information and Mr. O’Keeffe resubmitted his medical note from April 3, 2020. He did not provide the further information requested. I accept that the School District is reasonably certain to prove it required the further medical information it sought so it could assess Mr. O’Keeffe’s request. Because Mr. O’Keeffe failed to provide that information, the School District is reasonably certain to prove Mr. O’Keeffe did not cooperate in the accommodation process and the School District’s obligations came to an end.
[29] For the reasons set out above, I am satisfied that there is no reasonable prospect the complaint would succeed at a hearing. The complaint is dismissed in its entirety pursuant to s. 27(1)(c) of the Code.
IV CONCLUSION
[30] The complaint is dismissed.
Ijeamaka Anika
Tribunal Member