Rhodes v. Emcon Services Inc., 2025 BCHRT 194
Date Issued: August 15, 2025
File: CS-005152
Indexed as: Rhodes v. Emcon Services Inc., 2025 BCHRT 194
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:
Fredrick Rhodes
COMPLAINANT
AND:
Emcon Services Inc.
RESPONDENT
REASONS FOR DECISION
APPLICATION TO DISMISS A COMPLAINT
Section 27(1)(c)
Tribunal Member: Laila Said Alam
Counsel for the Complainant: Courtney Burnett
Counsel for the Respondent: Gregory Heywood and Teodora Bardas
I INTRODUCTION
[1] Fredrick Rhodes was employed with Emcon Services Inc. [Emcon] On September 28, 2021, he filed a complaint alleging that Emcon discriminated against him based on physical disability in violation of s. 13 of the Human Rights Code. Mr. Rhodes says when he notified Emcon that he was medically cleared to return to work from a medical leave, Emcon did not offer him an opportunity to return to work, and terminated his employment.
[2] Emcon denies discriminating. It applied to dismiss Mr. Rhodes’ complaint on the basis that it has no reasonable prospect of success: Code, s. 27(1)(c). Emcon says it did not terminate Mr. Rhodes’ employment. It says Mr. Rhodes was not medically cleared to return to work, that he did not participate in the return to work process, and ultimately abandoned his job.
[3] The parties dispute foundational issues of credibility. I need to decide whether those foundational issues of credibility can be resolved on the evidence before me, or whether these issues must be determined at a hearing.
[4] For the following reasons, I deny Emcon’s dismissal application. 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. I make no findings of fact.
II BACKGROUND
[5] Emcon is Mr. Rhodes’ former employer, and is a highway and bridge maintenance company.
[6] In 2018, Emcon hired Mr. Rhodes as a full-time commercial driver. The position requires an active Class 1 Driver’s Licence in accordance with requirements set out by the Insurance Company of British Columbia.
[7] On August 2, 2020, Mr. Rhodes suffered a stroke. He took an approved medically supported leave of absence for three months.
[8] Emcon issued a record of employment for “illness or injury” with Mr. Rhodes’ last day worked as July 30, 2020.
[9] In February 2021, Mr. Rhodes spoke with Emcon’s Manager of the Trucking Division about a return to work. The manager told Mr. Rhodes that another driver had been hired during Mr. Rhodes’ absence. The parties dispute the remainder of what was communicated during this telephone conversation.
[10] To date, Mr. Rhodes has not returned to work with Emcon.
III DECISION
[11] Next, I consider Emcon’s arguments in support of its application to dismiss. Before I do, I must briefly address the submissions filed by the parties.
1. Objection to Mr. Rhodes’ submission
[12] Emcon says in reply that Mr. Rhodes improperly includes new allegations in response to this application. Specifically, Mr. Rhodes alleges Emcon did not provide him with his overtime entitlements, and his work for Emcon caused strain on his relationship with his partner, particularly when her health began to suffer.
[13] Rule 24(4)(b) of the Tribunal’s Rules of Practice and Procedure provides a process for considering amendment applications when an application to dismiss is outstanding. As explained in Pausch v. School District No. 34 and others, 2008 BCHRT 154:
[28] [The Rule] addresses the time period when, in the normal course, a complainant has the right to amend their complaint, (unless that allegation falls outside the time limit), but for an existing application to dismiss. In requiring an application to amend, the Rules have placed an onus on the complainant to persuade the Tribunal to exercise its discretion to allow the amendment. The Rule’s purpose is to provide procedural fairness when a respondent files an application to dismiss a complaint by preventing a moving target. I agree with the Respondents’ submission that respondents need to know the allegations they are facing in order to assess whether, and under which subsection, to bring a dismissal application.
[29] That said, Rule 25(4)(b) provides a process for considering amendment applications. Focusing on the objective of procedural fairness, […] the Tribunal may grant leave to file an amendment under this Rule when to do so would further the purposes of the Code and the Rules including ensuring that all parties are treated fairly.
[14] Mr. Rhodes did not make an application under Rule 24(4)(b). I agree with Emcon that the allegations are outside the scope of Mr. Rhodes’ complaint. Mr. Rhodes’ allegations in response deprives Emcon of the opportunity they would have had to assess the scope of the complaint and determine how to frame their application to dismiss: Pausch at para. 30. I will not consider the information contained in Mr. Rhodes’ complaint that broadens the complaint. As Emcon’s application to dismiss the complaint is denied, Mr. Rhodes will need to assess his case and make his own determinations respecting whether he requires an amendment to the complaint.
2. Scope of this application to dismiss
[15] The Tribunal granted Emcon leave to file a dismissal application under the Tribunal’s Case Path Pilot Practice Direction [Case Path Pilot]. The Case Path Pilot is consistent with the Tribunal’s discretion to dismiss a complaint at a preliminary stage and its power to make rules regarding how it exercises that discretion: ss. 27(1) and 27.3 of the Code. Under the Case Path Pilot, the Tribunal reviews the complaint and response and decides whether allowing the respondent to file a dismissal application under s. 27(1) would facilitate the complaint’s just and timely resolution.
[16] Through the Case Path Pilot, Emcon requested to file a dismissal application under ss. 27(1)(c) and (d)(ii). The Tribunal granted Emcon permission to file a dismissal application under s. 27(1)(c), only. In the dismissal application before me, however, Emcon also argues to dismiss the complaint under s. 27(1)(d)(ii). I decline to consider this argument, because it was put forward against the Tribunal’s clear instructions. There is nothing before me to explain or justify Emcon’s departure from those instructions, or to persuade me that it would be fair and appropriate to expand the scope of the application permitted under the Case Path Pilot. I will only address Emcon’s application under s. 27(1)(c).
3. Application to dismiss the complaint under s. 27(1)(c) of the Code
[17] Emcon applies to dismiss Mr. Rhodes’ complaint on the basis that it has no reasonable prospect of success: Code, s. 27(1)(c). The onus is on Emcon to establish the basis for dismissal: Byelkova v Fraser Health Authority, 2021 BCSC 1312 at para. 90.
[18] 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.
[19] 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.
[20] 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.
[21] To prove his complaint at a hearing, Mr. Rhodes will have to prove that he had a disability, he was adversely impacted in employment, and his disability was a factor in the adverse impact: Moore v. British Columbia (Education), 2012 SCC 61 at para. 33. If he did that, the burden would shift to Emcon to justify the impact as a bona fide occupational requirement. If the impact is justified, there is no discrimination. In other words, if it is reasonably certain that a respondent would establish a defence at a hearing, then there is likely no reasonable prospect that the complaint will succeed: Purdy v. Douglas College and others, 2016 BCHRT 117 at para. 50.
[22] Based on all the materials before me, Emcon has not persuaded me that Mr. Rhodes’ complaint has no reasonable prospect of success or that they are reasonably certain to prove a defense at a hearing. I explain why next.
[23] Emcon does not dispute that Mr. Rhodes was on an approved medical leave of absence beginning in August 2021. The remainder of the complaint – whether Mr. Rhodes suffered an adverse impact, whether there is a connection between the adverse impact he alleges and his disability, whether Mr. Rhodes was medically cleared to return to work, whether Emcon’s duty to accommodate Mr. Rhodes was triggered, whether Emcon made efforts to return Mr. Rhodes to work, whether Mr. Rhodes failed to engage return to work efforts, and whether Mr. Rhodes abandoned his employment are all in dispute. These are issues that go to the core of Mr. Rhodes’ complaint and Emcon’s defence.
[24] Many human rights complaints raise issues of credibility. This is not, by itself, a sufficient reason to deny an application to dismiss: Evans v. University of British Columbia, 2008 BCSC 1026 at para. 34. However, if there are foundational or key issues of credibility, the complaint must go to a hearing: Francescutti v. Vancouver (City), 2017 BCCA 242 at para 67. For the following reasons, I cannot resolve these material disputes on the evidence before me, and the complaint must go to a hearing.
[25] Emcon’s position is that, to facilitate a return to work, the manager asked Mr. Rhodes to provide him with confirmation of an active Class 1 Licence; a clear, current and credible medical opinion confirming his ability to return to safe and productive active employment or any limitations that require accommodations. Emcon says while the manager did advise Mr. Rhodes that another driver had been hired in his absence, he asked Mr. Rhodes to provide the return to work documents so that Emcon could facilitate Mr. Rhodes’ return and consider any necessary accommodations.
[26] Mr. Rhodes maintains that during the call, the manager told him that his position had been replaced by another driver while he was on leave and there were no positions available for him. He says Emcon did not, at any point, request documentation from him as a precursor to return to his employment. He says Emcon did not undertake any accommodation process for him to reasonably participate in.
[27] I cannot reconcile Emcon and Mr. Rhodes’ version of events on the materials before me. I have affidavit evidence from both sides affirming their respective narratives, and there are no written communications between the parties in the materials about Mr. Rhodes’ return to work. Whether Emcon indicated that Mr. Rhodes was terminated and whether Emcon initiated the accommodation process to facilitate a return to work are key issues that cannot be resolved on this application.
[28] In my view, the conflicting evidence and credibility questions go to the very root of the complaint and preclude the Tribunal from granting Emcon’s dismissal application. The nature of the differences relates to the foundational issues of whether Mr. Rhodes was terminated; whether he was terminated in part because of his disability; whether Emcon sought reasonable and necessary information in order to accommodate Mr. Rhodes’ return to work; and whether Mr. Rhodes failed to provide necessary information to facilitate a return to work. To fairly and effectively decide these issues and to weigh the evidence to make findings of facts on a balance of probabilities, the member designated to hear the complaint must hear all of the evidence at a hearing, tested through cross-examination. At this stage of the process, where the Tribunal does not find facts or assess evidence in the same way it would at a hearing, I am unable to conclude that Mr. Rhodes’ complaint has no reasonable prospect of success.
[29] For these reasons, I deny Emcon’s application to dismiss the complaint under s. 27(1)(c) of the Code.
IV CONCLUSION
[30] Emcon’s application to dismiss the complaint under s. 27(1)(c) of the Code is denied. Mr. Rhodes’ complaint will proceed to a hearing.
Laila Said Alam
Tribunal Member