Barton v. Ministry of Education and others, 2025 BCHRT 207
Date Issued: August 20, 2025
File: CS-005293
Indexed as: Barton v. Ministry of Education and others, 2025 BCHRT 207
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:
Sally Barton
COMPLAINANT
AND:
His Majesty the King in Right of the Province of British Columbia
as represented by the Ministry of Education and Child Care
and the BC Public Service Agency and Scott MacDonald
RESPONDENTS
REASONS FOR DECISION
APPLICATION TO DISMISS A COMPLAINT
Sections 27(1)(c) and (g)
Tribunal Member: Beverly Froese
Counsel for the Complainant: John C. Adams
Counsel for the Respondents: Joanne Kim and Dave Hanacek
I INTRODUCTION
[1] In March 2021, Sally Barton made a complaint against the Respondents alleging discrimination regarding her employment based on sex contrary to s. 13 of the Human Rights Code. Mr. Barton subsequently amended her complaint to add allegations and also allege discrimination regarding her employment based on mental disability.
[2] Ms. Barton’s complaint alleges that Mr. MacDonald discriminated against her based on sex during the time she worked as an Assistant Deputy Minister [ADM] at the Ministry. At the material time, Mr. MacDonald was the Ministry’s Deputy Minister and Ms. Barton’s supervisor. Ms. Barton alleges that the BC Public Service Agency [PSA] discriminated against her based on sex when it failed to adequately respond to her complaints about Mr. MacDonald’s behaviour. She also alleges she was discriminated based on sex and mental disability when her employment was terminated.
[3] The Respondents deny discriminating. They say the PSA appropriately responded to Ms. Barton’s complaints, in particular by retaining an experienced third-party investigator [Investigator] who found Ms. Barton’s allegations against Mr. MacDonald and the PSA to be unsubstantiated. The Respondents deny that the manner in which the investigation was conducted was in any way discriminatory and say Ms. Barton had a full opportunity to participate. The Respondents also say that Ms. Barton’s employment was terminated for non-discriminatory reasons.
[4] Under the Tribunal’s Case Path Pilot, the Respondents were allowed to apply to dismiss the complaint under s. 27(1)(g) of the Code on the basis that some of the complaint was filed late and under s. 27(1)(c) of the Code on the basis that the complaint has no reasonable prospect of success.
[5] In their application, the Respondents submit that allegations in the complaint relating to events that occurred before the one-year time limit to make a complaint should be dismissed. They also make several arguments as to why Ms. Barton has no reasonable prospect of proving her case at a hearing. To make my decision, I have reviewed all the parties’ submissions, supporting evidence, and cited case law. In these reasons, I only refer to what is necessary to explain my decision.
[6] For the reasons set out below, the Respondents’ application is granted in part. All the allegations of discrimination based on sex are timely and will proceed to a hearing. The allegations of discrimination based on mental disability are dismissed on the basis they have no reasonable prospect of success.
[7] I apologize to the parties for the length of time it has taken to issue this decision.
II BACKGROUND
[8] The following background is taken from the materials filed by the parties. I make no findings of fact.
[9] In 2006, Ms. Barton joined the BC Public Service. In September 2017, she became the Ministry’s ADM, Services and Technology. At all material times, Mr. MacDonald was the Ministry’s Deputy Minister and Ms. Barton’s supervisor.
[10] The PSA provides services and programs to support BC Public Service employees, such as employee and labour relations, conflict management, early intervention, and returns to work. The PSA says that it does not tolerate discrimination, bullying, harassment, or any other type of inappropriate behaviour, and takes allegations of employee misconduct seriously. If an employee reports workplace discrimination, bullying, or harassment, the PSA works with and advises supervisors about appropriate actions that can be taken, such as investigations or discipline.
[11] The PSA’s Executive Director oversees the Employee Relations Team, which is responsible for leading and overseeing investigations and issuing disciplinary sanctions. The Employee Relations Team also provides advice, guidance, and support to managers and supervisors in the BC Public Service about complaints and workplace accommodations.
[12] In early October 2019, the Ministry’s Director of Strategic Human Resources informed the Executive Director that Mr. MacDonald had become aware that Ms. Barton had been “verbally abusive” toward a staff member. The Executive Director was told that Mr. MacDonald discussed the incident with Ms. Barton and wanted to give her a letter that set out clear expectations regarding her communication and conduct.
[13] In late October 2019, Mr. MacDonald issued a Letter of Expectation to Ms. Barton that said she was expected to treat all Ministry staff with dignity and respect. Ms. Barton says that the Letter of Expectation confused her, and Mr. MacDonald refused to give her examples of behaviour he was concerned about other than the incident with the staff member. Ms. Barton also says that Mr. MacDonald did not respond to a “go forward plan” she prepared and provided to him after receiving the Letter of Expectation.
[14] Sometime after receiving the Letter of Expectation, Ms. Barton contacted an ADM at the PSA to report concerns she had about Mr. MacDonald’s conduct. Ms. Barton says that ADM told her he could not advise her because he was already advising Mr. MacDonald and referred her to the Executive Director. Ms. Barton then reported to the Executive Director that Mr. MacDonald treated her and other female senior managers with hostility and gave male ADMs preferential treatment.
[15] Throughout November 2019, Ms. Barton spoke to and exchanged emails with the Executive Director and another ADM at the PSA [PSA ADM] about her concerns with Mr. MacDonald. During those communications, Ms. Barton asked for information about her options. Ms. Barton says she was told she had three options – do nothing, enter into an informal mediation process, or make a formal complaint. She alleges that the Executive Director and the PSA ADM strongly recommended that she not make a formal complaint about Mr. MacDonald because the process would be lengthy, stressful, and invasive.
[16] During this time, Ms. Barton told the Executive Director and the PSA ADM that the situation with Mr. MacDonald was escalating and becoming “increasingly untenable”. She also told them she felt threatened and vulnerable. Ms. Barton said she wanted to continue in her position, but Mr. MacDonald had still not clarified his expectations or given her examples of changes he wanted her to make. She expressed concerns about potential retaliation if she made a formal complaint or participated in a mediation process and asked for more information about her options and assistance with deciding how to proceed. Ms. Barton also told the Executive Director and the PSA ADM that three female employees were willing to be interviewed about their experiences working in the Ministry.
[17] In early December 2019, Ms. Barton went on a medical leave of absence, with an anticipated return to work date of early April 2020. The medical note Ms. Barton provided to her employer at the time states that she was experiencing major depression, anxiety, and stress from bullying.
[18] The parties do not appear to dispute that before she went on leave, Ms. Barton did not tell the Executive Director or the PSA ADM how she wanted to proceed with her concerns about Mr. MacDonald. Ms. Barton says this was because they had cautioned her against making a formal complaint and she was waiting for them to provide her with details about the informal mediation process.
[19] Ms. Barton alleges that after she went on leave, Mr. MacDonald continued to target and treat her disrespectfully, for example when her government login credentials were suspended, and she was asked to return her work laptop and phone.
[20] Near the end of April 2020, Ms. Barton told the PSA ADM that she expected to return to work at the beginning of June 2020. She expressed frustration with what she perceived to be a lack of action regarding her complaint about Mr. MacDonald and a return-to-work plan. Ms. Barton told the PSA ADM that she wanted to return to work but Mr. MacDonald’s behaviour made her position untenable.
[21] Around mid-May 2020, the PSA ADM told Ms. Barton that the three female employees whose names she put forward were not able to confirm her allegations of bullying and harassment by Mr. MacDonald. He also told Ms. Barton that it was common for an employee on leave to have their government login credentials suspended and be asked to return work equipment. The PSA ADM told Ms. Barton that when she was cleared to return to work, she could choose to participate in a facilitated process with Mr. MacDonald. He also said that her other option was a formal investigation, which could be disruptive and lengthier given the limits on in-person meetings due to COVID-19.
[22] After speaking with the PSA ADM, Ms. Barton contacted the three female employees whose names she put forward. She says they were surprised and upset to learn that the PSA ADM said they did not express concerns about Mr. MacDonald’s conduct towards the Ministry’s female senior managers.
[23] The weekend before she was supposed to return to work, Ms. Barton went to the office and discovered that her security pass had been deactivated. When she contacted the PSA ADM, she was told that to avoid the risk of re-experiencing the concerns she had with Mr. MacDonald, her full pay and benefits were reinstated but she would not return to active duty.
[24] Throughout June 2020, Ms. Barton and the PSA ADM communicated about her return to work and the option of pursuing a formal investigation. During this time, Ms. Barton expressed concerns about how the PSA had handled her complaint and possible retaliation against her for making a complaint. Ms. Barton says she was also concerned that the PSA ADM was in a conflict of interest because he was advising both her and Mr. MacDonald.
[25] Around that time, Ms. Barton asked the PSA ADM about returning to work in a different position. He told Ms. Barton that given her concerns about what she perceived to be a lack of action by the PSA, the most appropriate course of action would be to start a formal investigation.
[26] The PSA subsequently retained the Investigator to conduct an investigation into Ms. Barton’s allegations against Mr. MacDonald. Over the next few weeks, Ms. Barton exchanged emails with the Executive Director and the PSA ADM about questions she had with the investigation process. In these communications, Ms. Barton told them she was surprised and shocked to learn that she was being kept on leave. She told them she was willing to participate in the investigation but did not understand why the decision to extend her leave had been made without her knowledge. Ms. Barton expressed concerns about how Mr. MacDonald had communicated to Ministry staff that her leave had been extended and the potential harm to her reputation from an extended leave. The Executive Director told Ms. Barton there was no formal policy on returning an employee to full pay and benefits but not active duty. He also told her that the decision to extend her leave was “non-punitive” and intended to protect her “while minimizing the risk of further respectful workplace concerns arising that could unnecessarily expand and hamper the timeliness of the investigation”.
[27] During an interview in July 2020, Ms. Barton told the Investigator that she had recorded conversations with Mr. MacDonald and the PSA ADM without their knowledge or consent [Recordings]. Ms. Barton says the Investigator told her the Recordings would be helpful to her investigation and did not raise any concerns about them.
[28] During August 2020, Ms. Barton and the Executive Director continued to exchange emails. In her emails, Ms. Barton expressed concerns about the impact her continued “suspension” was having on her reputation and said she felt like she was being retaliated against for complaining about Mr. MacDonald. Ms. Barton also asked for clarification regarding the investigation and whether the Investigator might consider whether she had done anything wrong. The Executive Director assured Ms. Barton that she was not a respondent in the investigation and that she would be given notice if the Investigator received information indicating that she had done something wrong.
[29] In early September 2020, the Executive Director informed Mr. MacDonald that the PSA was conducting a formal investigation into allegations of inappropriate behaviour toward Ms. Barton and other female employees. In late September 2020, Ms. Barton confirmed with the Investigator that she wanted the PSA ADM to also be a named respondent in the investigation because of how he mishandled her concerns about Mr. MacDonald.
[30] In late October 2020, Ms. Barton had discussions with two Employee Relations Representatives [Representatives]. During those discussions, Ms. Barton told them her continued suspension made her feel isolated. Ms. Barton asked the Representatives if it was possible for her to return to work at the Ministry or in an alternate position in the public service.
[31] Around mid-November 2020, the investigation’s terms of reference were expanded to include Ms. Barton’s allegations that the PSA ADM did not appropriately handle her concerns about Mr. MacDonald.
[32] In December 2020, the Representatives told Ms. Barton that due to the serious nature of the allegations against Mr. MacDonald, it would not be appropriate for her to return to the Ministry until the investigation was done. They told Ms. Barton that the investigation would be completed sooner than expected and that the PSA had been contacted about possible employment options for her while it was ongoing.
[33] In January 2021, Ms. Barton expressed concerns to the Representatives that her employment was in jeopardy. She told the Representatives about the impacts her continued absence was having on her personally and professionally. The Representatives told Ms. Barton that she had an ADM position with the public service and nothing at the time indicated otherwise.
[34] Sometime in February 2021, Ms. Barton gave the Investigator copies of the Recordings. Ms. Barton says the Investigator never said her conduct was being investigated or that she might face disciplinary consequences for making them.
[35] In late March 2021, the Investigator issued her report [Investigation Report]. The Investigator found that none of Ms. Barton’s allegations against Mr. MacDonald or the PSA ADM were substantiated. Specifically, the Investigator concluded that:
· Mr. MacDonald’s interactions with Ms. Barton did not amount to bullying or harassment;
· there was no evidence that Mr. MacDonald treated female employees differently;
· there was no evidence to imply that any of Mr. MacDonald’s actions were retaliatory; and
· there was no evidence that the PSA mishandled Ms. Barton’s complaint or misrepresented information to her.
[36] The Respondents say that after reviewing the Investigation Report, the decision was made to terminate Ms. Barton’s employment without cause.
[37] In early April 2021, Ms. Barton met with PSA representatives and was informed about the Investigation Report’s conclusions. She did not get a copy of the Investigation Report at that time. During the meeting, Ms. Barton was told that her employment was being terminated without cause because making the Recordings was a breach of the BC Public Service’s Standards of Conduct. Ms. Barton says she was also told that her employment was being terminated because Mr. MacDonald said she was overly aggressive.
[38] Ms. Barton says the termination meeting was “emotionally devastating”. She believes the Ministry and the PSA turned an investigation into Mr. MacDonald’s conduct into an investigation about hers. She says that rather than being protected, she was punished for raising concerns about Mr. MacDonald’s conduct and participating in the investigation. Ms. Barton alleges that the Ministry and the PSA used her interviews with the Investigator and the Investigation Report’s findings and conclusions as a reason to terminate her employment. `
III DECISION
[39] In their submission, the Respondents separate the allegations in the complaint into various categories. I find that doing so is helpful to the analysis; however, because of overlapping allegations and arguments, for the purposes of this application I have divided them into the following categories:
a. Workplace Allegations – The complaint alleges that between September 2017 and December 2019, Mr. MacDonald bullied and harassed Ms. Barton based on her sex and fostered a “culture of gender-based discrimination and fear” at the workplace. Specifically:
i. in the spring of 2018, Mr. MacDonald yelled at Ms. Barton during a meeting with two female executives, accused her of being “territorial”, and later said he had to “protect” the other executive from being “steamrolled” by her;
ii. in the spring of 2018, Mr. MacDonald assigned offices on his floor to male senior level managers and assigned female senior managers to smaller offices on a different floor. Mr. MacDonald later dismissed concerns raised by female managers about the office allocations;
iii. in the spring of 2018, Mr. MacDonald denied Ms. Barton’s request to attend a government event with selected staff but allowed a male ADM to attend a conference with selected staff without prior approval;
iv. in the spring of 2018, Mr. MacDonald gave male ADMs benefits such as allowing them to make frequent international trips without prior approval and hiring staff during a hiring freeze;
v. as part of an ADM Review Process in June 2019, Mr. MacDonald told Ms. Barton that she managed with an “elbows out” style and was “getting a reputation”. When she asked what he meant, Mr. MacDonald did not give Ms. Barton any examples and told her the Province had considered terminating her employment when she was on maternity leave;
vi. in August 2019, a male ADM tasked to look into the office allocation issue stormed out of a meeting, slammed the door, and said he would not discuss the issue. Mr. MacDonald did not take any steps to address the ADM’s unprofessional behaviour after a female executive raised it;
vii. in October 2019, MacDonald issued the Letter of Expectation, accused Ms. Barton of committing a “serious” infraction, and refused to provide examples of how she was being “aggressive”;
viii. throughout the fall of 2019, Mr. MacDonald told Ms. Barton she was being “aggressive” without providing examples and accused her of bullying his staff. Mr. MacDonald led Ms. Barton to believe that her continued employment was threatened; and
ix. in December 2019, MacDonald used the term “bitch-slap” at a meeting with senior executives.
b. Reprisal Allegations – The complaint alleges that between January and June 2020, Mr. MacDonald retaliated against Ms. Barton for raising concerns about him with the PSA, specifically:
i. when her log-in credentials and email access were cut off;
ii. when her name was removed from the government directory;
iii. when Mr. MacDonald refused to approve the payment of her CPA dues; and
iv. in the manner in which Ms. Barton’s continued absence from work was announced to Ministry staff.
c. Inadequate Response Allegations – The complaint alleges that the PSA inadequately and inappropriately responded to Ms. Barton’s concerns about Mr. MacDonald, specifically by:
i. delaying the matter for months and not including the PSA ADM as a respondent in the investigation from the start; and
ii. unilaterally extending her leave of absence.
d. Conflict of Interest Allegations – The complaint alleges that the PSA ADM was in a conflict of interest because he was advising both Ms. Barton and Mr. MacDonald regarding their respective complaints about each other’s conduct.
e. Inadequate Investigation Allegations – The complaint alleges that the PSA failed to ensure that the investigation was conducted in a meaningful and appropriate manner, specifically because:
i. the investigation was based on incomplete and misleading information;
ii. the Investigator found that Mr. MacDonald either raising his voice or yelling at Ms. Barton during a meeting in mid-September 2018 was a “one-off minor incident”;
iii. the Investigator questioned Ms. Barton’s credibility, in particular with respect to her allegation that a male ADM slammed the door on his way out of a meeting;
iv. the Investigator either rejected Ms. Barton’s evidence about certain events or did not ask her about them;
v. the Investigator found that the Letter of Expectation was justified;
vi. the Investigator did not put the ADM Review Meeting minutes to Ms. Barton so she could respond about her “elbows-out reputation” and show that she had a history of positive performance reviews;
vii. the Investigator treated a female witness’ evidence about her working relationship with Mr. MacDonald as irrelevant;
viii. the Investigator did not investigate whether Ms. Barton’s participation in the investigation was voluntary; and
ix. the Investigator rejected Ms. Barton’s concerns about the length and impact that her “suspension” had on her reputation and failed to ask witnesses about those concerns or ask her to provide witnesses who could speak to her concerns.
f. Termination Allegations – The complaint alleges that Ms. Barton’s sex and mental disability were factors in the termination of her employment.
[40] The Respondents apply to dismiss part of the complaint under s. 27(1)(g) of the Code and the entire complaint under s. 27(1)(c). I consider each ground in turn.
A. Section 27(1)(g) – Part of the complaint was filed outside the one-year time limit
[41] The Respondents submit that the Workplace Allegations should be dismissed under s. 27(1)(g) of the Code because they are untimely.
[42] There is a one-year time limit for filing a human rights complaint: Code, s. 22. Section 22 is meant to ensure that complainants pursue their human rights remedies promptly so that respondents can go ahead with their activities without the possibility of a dated complaint: Chartier v. School District No. 62, 2003 BCHRT 39 at para. 12. Section 27(1)(g) of the Code permits the Tribunal to dismiss a late-filed complaint.
[43] A complaint is filed in time if the last allegation of discrimination happened within one year, and older allegations are part of a “continuing contravention”: Code, s. 22(2); School District v. Parent obo the Child, 2018 BCCA 136 at para. 68. A continuing contravention is “a succession or repetition of separate acts of discrimination of the same character” that could be considered separate contraventions of the Code, and “not merely one act of discrimination which may have continuing effects or consequences”: Chen v. Surrey (City), 2015 BCCA 57at para. 23; School District at para. 50.
[44] The assessment of whether discrete allegations are a continuing contravention is a “fact specific one which will depend very much on the individual circumstances of each case”: Dickson v. Vancouver Island Human Rights Coalition, 2005 BCHRT 209 at para. 17. A relevant consideration is whether there are significant gaps between the allegations: Dickson at paras. 16-17. Whether or not a gap is significant will be assessed contextually, considering the length itself and any explanations for the gap: Reynolds v Overwaitea Food Group, 2013 BCHRT 67, at para. 28. A significant, unexplained, gap in time will weigh against finding a continuing contravention: Bjorklund v. BC Ministry of Public Safety and Solicitor General, 2018 BCHRT 204 at para. 14.
[45] The complaint was filed on March 22, 2021. Since the alleged events in the Workplace Allegations occurred before March 22, 2020, they are only timely if they are part of an alleged continuing contravention. In other words, the Workplace Allegations are timely if they are of the same character as at least one allegation in the complaint that occurred on or after March 22, 2020.
[46] The Respondents submit that the Workplace Allegations are not a continuing contravention because they are not separate acts of the same character as the Reprisal Allegations or the Inadequate Response Allegations.
[47] I agree with the Respondents that the Workplace Allegations are not of the same character as the Inadequate Response Allegations. The Workplace Allegations allege discriminatory bullying and harassment by Mr. MacDonald. The Inadequate Response Allegations relate to the adequacy of the PSA’s efforts to address and respond to the Workplace Allegations.
[48] I disagree, however, with the Respondents’ argument that the Reprisal Allegations are of a different character than the Workplace Allegations. Although the Reprisal Allegations occurred after Ms. Barton went on a medical leave, that does not mean they are not of the same character. I agree with Ms. Barton that, taken together, the Workplace Allegations and Reprisal Allegations are properly characterized as an alleged pattern of separate acts of discriminatory conduct based on sex that “manifested itself in different ways and at different times”.
[49] The Tribunal has recognized that discrimination based on sex “is a broad concept encompassing a wide range of behaviour”: Lesnikov v. Anglo American Exploration (Canada) Ltd., 2024 BCHRT 245 at para. 42. In my view, the common thread that links the Workplace Allegations and the Reprisal Allegations is alleged conduct by Mr. MacDonald “that leverages or reinforces gendered power hierarchies in the workplace, such as acts or omissions that humiliate, subjugate, blame, or intimidate”: Lesnikov at para. 42.
[50] Further, the gaps between the Workplace Allegations and the Reprisal Allegations are neither significant nor unexplained. The latest of the Workplace Allegations occurred in November and December 2019 and the first Reprisal Allegation occurred about a month later.
[51] Having found the Workplace Allegations to be timely, I deny the Respondents’ application to dismiss them under s. 27(1)(g) of the Code.
B. Section 27(1)(c) – No reasonable prospect of success
[52] The Respondents apply to dismiss Ms. Barton’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.
[53] 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.
[54] 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.
[55] 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 [Hill] at para. 27.
[56] 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. The Tribunal may dismiss a complaint under s. 27(1)(c) if the credibility issues can be resolved “on the basis of corroborative affidavit and contemporaneous documentary evidence”: Evans at para. 37. 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.
[57] To prove her complaint at a hearing, Ms. Barton will have to prove that she has a characteristic protected by the Code, she was adversely impacted regarding her employment with the Ministry, and her protected characteristic was a factor in the adverse impact: Moore v. British Columbia (Education), 2012 SCC 61 at para. 33. To be successful, it is only necessary for Ms. Barton to prove that her protected characteristic was a factor in any employment-related adverse impacts she suffered; she does not have to prove it was the only or overriding factor: Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Bombardier Inc. (Bombardier Aerospace Training Center), 2015 SCC 39 at para. 52; Stewart v. Elk Valley Coal Corp., 2017 SCC 30 at paras. 45 and 46.
[58] If Ms. Barton proves her case, the burden would shift to the Respondents to justify the adverse impact as a bona fide occupational requirement. If the impact is justified, there is no discrimination.
1. Discrimination based on sex
[59] In their submission, the Respondents make several arguments as to why the various categories of allegations have no reasonable prospect of success. I consider each of those arguments in turn.
a. Allegations in the complaint were investigated and found to be unsubstantiated
[60] The Respondents rely on the findings of the Investigation Report as a full answer to the Workplace, Reprisal, and Inadequate Response Allegations. The Respondents say that Ms. Barton has not provided any evidence to show the investigation was inadequate, unfair, biased, or unreliable. They further say that Ms. Barton’s assertion that the investigation is not an adequate or appropriate substitute for a Tribunal hearing is mere conjecture.
[61] In support of their argument, the Respondents cite Halabi v. Coast Mountain Bus Company, 2006 BCHRT 310, where the Tribunal dismissed a complaint under s. 27(1)(c). One of the relevant factors in that case was evidence indicating that Customer Service Report complaints the complainant had made that were the same or similar to the allegations in his complaint had already been investigated and found to be unsubstantiated.
[62] Appendix “B” of the Respondents’ submission contains a helpful chart that compares the allegations in the complaint that are identical or similar to those the Investigator found to be unsubstantiated. Based on that chart, I accept for the purposes of this application that the Investigator concluded that the Workplace, Reprisal, and Inadequate Response Allegations were not substantiated.
[63] The Investigation Report is compelling evidence. It is a factor that I take into consideration as part of my “global assessment” of the likelihood of the complaint’s success: Halabi at para. 23.
[64] On its own, however, the Investigation Report is not sufficient to convince me that the Workplace, Reprisal, and Inadequate Response Allegations should be dismissed. The Investigation Report contains only brief excerpts or summaries of evidence the Investigator gathered from unnamed witnesses. The Respondents did not provide the entirety of the evidence on which the Investigator based her findings and conclusions, for instance interview notes and documents she reviewed. As a result, with the exception of a few discrete allegations, for example that offices had already been allocated when Mr. MacDonald became the Ministry’s Deputy Minister, I cannot properly assess whether Ms. Barton has no reasonable prospect of proving these categories of allegations.
[65] Further, in my view this is not the type of complaint where efficiency might be gained by parsing out and dismissing individual allegations since the parties will need to provide evidence about Ms. Barton’s work experiences in any event: Fraser v. Tolko Industries Ltd. and others, 2021 BCHRT 118 at para. 216. Similar to the situation in Fraser, Ms. Barton has made many allegations that must be considered in context with each other. In Fraser, the Tribunal declined to dismiss particular allegations that “on their own might not rise to the level of discrimination or might not appear to be connected to a ground of discrimination, but might do so when viewed contextually”: at para. 214. As the Tribunal noted in Fraser, in “any complaint involving an alleged discriminatory work environment over a period of time, it would likely be difficult to dismiss any particular allegations as not contributing to the alleged problem”: at para. 215.
b. The PSA’s response adequately and appropriately addressed Ms. Barton’s complaints about Mr. MacDonald
[66] The Respondents submit that allegations about the PSA’s response to Ms. Barton’s complaints about Mr. MacDonald have no reasonable prospect of success. In their submission, the Respondents refer to both Inadequate Response Allegations and Inadequate Investigation Allegations.
[67] The Respondents submit that this part of the complaint should be dismissed because the PSA retained an experienced third-party investigator with the proper understanding of the analytical framework under the Code. They say the Investigator conducted an extensive and comprehensive investigation in which Ms. Barton had ample opportunity to present her evidence and respond to any conflicting evidence. The Respondents say Ms. Barton was placed on paid leave during the investigation so she would not be at risk of re-experiencing her concerns about a negative work environment. Last, the Respondents say that Ms. Barton’s disagreement with the Investigator’s findings and conclusions does not mean the investigation was unreasonable, inappropriate, biased, or discriminatory.
[68] The Respondents submit that factors the Tribunal considers under s. 27(1)(d)(ii) of the Code are relevant. That provision allows the Tribunal to dismiss a complaint if proceeding would not further the Code’s purposes because the respondent has remedied the alleged discrimination. In support of their argument, the Respondents cite Jamal v. TransLink Security Management and another (No. 2), 2020 BCHRT 146, where the Tribunal stated at para. 106 that relevant factors to determine if an employer has fulfilled its duty to investigate complaints of discrimination include:
… whether the employer and persons charged with addressing discrimination have a proper understanding of discrimination, whether the employer treated the allegations seriously and acted “sensitively”, and whether the complaint was resolved in a manner that ensured a healthy work environment: Laskowska at para. 59, cited in Beharrell at para. 21.
[69] The Respondents also cite Davis v. Teck Coal Ltd. and another, 2018 BCHRT 285, where the Tribunal stated that complaints would not be dismissed if a complainant was not involved in any investigation of the alleged discrimination “to the extent that s/he could provide an answer to the results of the investigation”: at para. 84. In Davis, the Tribunal did not dismiss the complaint under s. 27(1)(d)(ii) even though the employer had arranged for an external investigation. The complainant in that case was told about the results of the investigation but was not allowed to put forward evidence in response to what certain witnesses said to the investigator. When denying the application to dismiss, the Tribunal said that the process the respondent undertook “could not be said to be similar to what would occur in a hearing”: at para. 88.
[70] The Respondents have provided persuasive evidence regarding the Investigator’s qualifications, investigatory methods, and understanding of the relevant law and legal principles. The Investigation Report indicates that the Investigator is an experienced third-party investigator and investigated allegations that are, for the most part, identical to the Workplace, Reprisal, and Inadequate Response Allegations. The Investigation Report indicates that the Investigator adopted an analytical framework that included applying the legal test to establish discrimination under the Code and the government’s policy on workplace discrimination and harassment. It indicates that the Investigator relied on established legal principles to assess the credibility and reliability of the witnesses’ evidence. The Investigation Report indicates that in addition to Ms. Barton and Mr. MacDonald, the Investigator interviewed numerous witnesses, all of whom were informed of their right to have a support person or union representative present. It also indicates that the Investigator provided her interview notes to each witness to review for accuracy. Last, the Investigation Report indicates that in addition to interviewing witnesses, the Investigator reviewed numerous documents, including policies and internal communications, and listened to the Recordings.
[71] I agree with the Respondents that the principles from cases such as Jamal and Davis can be helpful to the analysis. I also agree with the Respondents that just because a complainant disagrees with an investigator’s findings and conclusions does not mean the investigation was unreasonable, inappropriate, or conducted in a discriminatory manner: Sharma v. Coast Mountain Bus Company (No. 3), 2014 BCHRT 164 at para. 68. However, I am not convinced by the Investigation Report alone that Ms. Barton has no reasonable prospect of proving this part of her complaint. Without knowing what evidence was before the Investigator or how, if at all, that evidence was tested, I am not persuaded that allegations about the PSA’s response to Ms. Barton’s complaint have already been determined in a manner “similar to what would occur in a hearing”. Further, Ms. Barton does not just disagree with the Investigator’s findings and conclusions. Her allegations go beyond the Investigation itself and relate to the PSA’s response in general to her complaints about Mr. MacDonald.
[72] I provide several examples to explain why, despite evidence supporting the Respondents’ argument that the PSA took Ms. Barton’s complaints seriously and fulfilled its duty to investigate, I am not persuaded on the materials before me that Ms. Barton has no reasonable prospect of proving this part of her complaint.
[73] First, I am not persuaded that Ms. Barton had a full opportunity to present or respond to evidence the Investigator gathered regarding the decision to extend her leave without her knowledge or consent. The parties do not appear to dispute that Ms. Barton was not told that her leave had been extended until the weekend before she expected to return to work in early June 2020. There is evidence indicating that prior to her anticipated return to work, Ms. Barton repeatedly expressed concerns to the Executive Director and PSA ADM about her desire to return to work and the impact an extended leave would have on her professional reputation. It indicates that despite assurances to Ms. Barton that an extension of her leave was not intended to be “punitive” and was done for her own protection, it had a significant negative impact on her. The affidavit evidence indicates that Ms. Barton told the Executive Director and PSA ADM that extending her leave without her consent increased her stress and left her feeling “ostracized” and “punished”. It indicates that Ms. Barton told them that extending her leave meant she was “unable to enjoy the interaction with my staff, other colleagues, and the Ministry’s partners”, which “was an important part of my role”. The affidavit evidence indicates that after her leave was extended, Ms. Barton experienced self-doubt and loss of confidence. It indicates that Ms. Barton avoided friends or others in her peer group that worked for the provincial government because of concerns that she would be asked why she was not actively working and not be able to explain the circumstances because of confidentiality. There is also evidence indicating that at the time Ms. Barton’s leave was extended, it was anticipated that the investigation would be completed several months sooner than it actually was.
[74] The Investigator found that the PSA had no obligation to discuss extending Ms. Barton’s leave in advance. She also found that in the circumstances, it was reasonable for Ms. Barton’s leave to be extended pending completion of the investigation. The Investigator found that it was appropriate for Ms. Barton to remain on leave because her relationship with Mr. MacDonald had not been repaired. She also found that evidence from the PSA ADM that no other Deputy Ministers had agreed to have Ms. Barton placed in their ministries was consistent with evidence that Ms. Barton was “getting a reputation”. She found that Ms. Barton had not provided any evidence of actual damage to her reputation. Last, the Investigator cited evidence from an unnamed witness who, in essence, said that if an ADM has a Deputy Minister’s confidence, then any issues colleagues or staff might have with that ADM are “their problem”, not the ADMs.
[75] It is not clear to me from the Investigation Report or the Respondents’ supporting materials whether the Investigator reviewed the same evidence the parties provided in this application before making her findings and conclusions. For instance, in an email Ms. Barton sent to the PSA ADM a few days after she was supposed to return to work, she said that although it would have been difficult, she would have been able to handle returning to work with Mr. MacDonald professionally and be productive in her role. Ms. Barton told the PSA ADM that she wanted to participate in a fair and unbiased investigation, but it was not fair or necessary to extend her leave. She also told the PSA ADM that had she been asked about the decision to extend her leave before it was made, she would have said she was willing to take the risk and that extending her leave made her feel ostracized and punished.
[76] It is also not clear to me whether Ms. Barton had an opportunity to respond to the Investigator’s conclusion that evidence that other Deputy Ministers did not want Ms. Barton in their ministries was consistent with evidence that she was “getting a reputation”. Nothing in the Investigation Report or other materials before me appears to contradict Ms. Barton’s allegation that the Investigator did not put ADM Review Meeting minutes to her so she could respond to allegations that she had an “elbows-out reputation” and show that she had a history of positive performance reviews. There also does not appear to be any evidence indicating that Ms. Barton was aware that the Investigator had evidence that other Deputy Ministers did not want her in their ministries.
[77] Ms. Barton has provided evidence indicating that in June 2020, the PSA ADM told her that an alternate position might be an option if one was available. She provided evidence indicating that in December 2020, she told the Representatives that she felt “disconnected and excluded” and asked if there were any other ADM roles. In response, the Representatives told Ms. Barton that a specific alternate ADM position was not suitable but not because of her reputation. Ms. Barton also provided evidence indicating that in January 2021, the Representatives told Ms. Baraton they were continuing to monitor available positions.
[78] The second example relates to the Investigator’s findings and conclusions regarding Ms. Barton’s allegations that Mr. MacDonald continued to target her after she went on leave. Ms. Barton provided evidence to support her allegations. I cannot tell from the Investigation Report whether that evidence was provided to the Investigator. Specifically, an internal government email related to payment of Ms. Barton’s CPA fees states that Mr. MacDonald should “absolutely” approve the payment and this issue was “not a hill to die on”. A note from late August 2020 states that a witness told the Executive Director she was “shocked” that Ms. Barton’s login credentials were taken away when she was on leave. Last, there is evidence indicating that Mr. MacDonald did not follow the PSA ADM’s advice to send his draft email to staff announcing the extension of Ms. Barton’s leave to her first so he could get her feedback.
[79] Third, I am not persuaded that Ms. Barton was given a full opportunity to respond to evidence that appears to have influenced the Investigator’s findings regarding her credibility. In the Investigation Report, the Investigator said that at times Ms. Barton’s credibility was “questionable”. For instance, in her complaint, Ms. Barton alleged that Mr. MacDonald allowed male ADMs to engage in disrespectful behaviour and gave the Investigator a particular example of a male ADM being rude and disrespectful at a meeting. The Investigation Report says the Investigator was subsequently told by another witness that Ms. Barton and the male ADM were “friendly” and Ms. Barton gave him rides to and from work and socialized with him outside the office. The Investigation Report says the Investigator put this evidence to Ms. Barton and she confirmed it. Based on that confirmation, the Investigator concluded that Ms. Barton’s “comments about the ADMs behaviour being disrespectful does not hang together and appears disingenuous”.
[80] In her affidavit, Ms. Barton does not dispute that she told the Investigator she occasionally gave the male ADM rides to and from work and socialized with him outside the office. Her evidence, which does not appear to be contradicted, is that the Investigator never asked her to explain why she did these things and why doing them would be inconsistent with her allegation. Ms. Barton says that had she been asked, she would have told the Investigator that she gave the male ADM rides because they lived close together and it would have been rude to refuse him a ride, and that the “socializing” consisted of the occasional business dinner.
[81] Finally, Ms. Barton has provided evidence supporting her allegation that the PSA ADM did not adequately or appropriately respond to her complaints about Mr. MacDonald. Specifically, Ms. Barton provided evidence indicating that in November 2019, she forwarded the names of three women to the PSA ADM who she said were willing to speak to him about their experiences working at the Ministry. She provided evidence indicating that in response to an email she sent in late April 2020, the PSA ADM told her that he had separate confidential conversations with the three women “but was unable to confirm the concerns you relayed to me regarding bullying and harassment”. In her affidavit, Ms. Barton says she contacted the three women and all of them were upset and surprised to learn that the PSA ADM said they had not expressed concerns about Mr. MacDonald’s conduct toward female senior managers. Ms. Barton also provided evidence indicating that one of the women emailed the PSA ADM after she learned about what he told Ms. Barton about their conversation. In that email, the woman told the PSA ADM that although she did not directly witness Mr. MacDonald bullying or harassing Ms. Barton, she believed she gave him enough information about Mr. MacDonald’s treatment of her female colleagues and their fears of losing their careers if they came forward to warrant a further investigation. She also gave the PSA ADM the name of another potential witness but there is no evidence indicating that person was ever contacted.
c. The Conflict of Interest Allegations
[82] The Respondents argue that the Conflict of Interest Allegations have no reasonable prospect of success because Ms. Barton has mischaracterized the evidence about the PSA’s role. The Respondents also say this part of the complaint should be dismissed because the Investigator already concluded that similar allegations were unsubstantiated.
[83] For two reasons I am not persuaded by the Respondents’ arguments. First, whether Ms. Burton has mischaracterized the PSA’s role requires the Tribunal to make findings of fact, which cannot be done on an application to dismiss. As key facts are in dispute, a hearing is necessary to fully assess and test the evidence: Complainant v. Richmond (City), 2023 BCHRT 57 at para. 44.
[84] Second, the Investigator does not appear to have investigated the allegation that the PSA ADM was in a conflict of interest because he was advising both Ms. Barton and Mr. MacDonald. The Investigator investigated several allegations about the PSA ADM’s conduct, for instance whether he failed to act on evidence from third parties, and whether he initiated the Investigation in a timely manner. However, there does not appear to be any consideration given to this part of Ms. Barton’s complaint. I note here that in an amendment to her complaint, Ms. Barton says she only became aware that the PSA ADM was advising her at the same time he was advising Mr. MacDonald about their respective complaints when she received documents through the Tribunal’s disclosure process.
d. Ms. Barton’s allegations about receiving misleading and inaccurate information prior to the investigation
[85] This argument relates specifically to Ms. Barton allegations that she was told before the investigation started that her conduct was not being investigated and her position with the Ministry was secure. She also alleges she was not told that by March 2020, Mr. MacDonald had already decided she would not return to the Ministry. Ms. Barton says that her decision to participate in the investigation would have been different had she been told that her employment might be in jeopardy and she would not be returning to the Ministry regardless of the outcome. Ms. Barton says she believed her return to work was dependant only on the investigation being completed.
[86] The Respondents submit that these allegations should be dismissed because they are not supported by the evidence. I disagree. In my view, there is sufficient evidence before me to take this part of Ms. Barton’s complaint out of the realm of conjecture.
[87] Specifically, there is evidence indicating that before the investigation started, the PSA ADM assured Ms. Barton that she was not being investigated and that she would be given notice if anything came up during the investigation that raised issues about her conduct. There is no evidence before me indicating that Ms. Barton was ever told during the investigation that the Investigator became aware of any information that raised issues about her conduct. There is also evidence indicating that during the Investigation and after expressing concerns about the length of her leave, Ms. Barton was told that she had an ADM position and nothing indicated otherwise.
[88] Further, Ms. Barton has provided affidavit and documentary evidence that supports her assertion that by March 2020, Mr. MacDonald had already decided that she would not return to work at the Ministry. Specifically, an email from an Employee Relations Specialist in early May 2020 states that she was told in late March 2020 that Mr. MacDonald said Ms. Barton would not be returning to the Ministry and he would no longer communicate with her. The Executive Director’s notes of conversations or meetings in March and May 2020 also state that Ms. Barton would not be returning to the Ministry and no one was looking for an alternate position for her.
e. Ms. Barton’s employment was terminated for non-discriminatory reasons
[89] The parties do not appear to dispute that Ms. Barton’s employment was terminated because she made the Recordings. Ms. Barton also alleges she was told that her employment was being terminated because she was “overly aggressive”.
[90] The Respondents say this part of Ms. Barton’s complaint should be dismissed because there is no nexus between the termination of her employment and her sex. The Respondents say that after considering the information in the Investigation Report, it was determined that the employment relationship with Ms. Barton was irreparably broken, and the Recordings were a clear breach of confidence. They also say that Ms. Barton’s employment was terminated without cause, and she was provided with a generous severance.
[91] In my view, this allegation is not a stand-alone allegation. Rather, it must be considered as part of the pattern of alleged discrimination by the Respondents based on sex.
[92] For two reasons, I am not persuaded that Ms. Barton has no reasonable prospect of proving this part of her case.
[93] First, the evidence before me indicates that the PSA became aware of the Recordings well before Ms. Barton’s employment was terminated in April 2021. Specifically, the documentary evidence indicates that in July 2020, the Investigator told the Executive Director about the Recordings, and said she needed the Recordings for evidence and might play them to the counterparty. It also indicates that they discussed how the Investigator might respond to any concerns raised about the Recordings. There is no evidence indicating that anyone raised concerns about the Recordings during the Investigation.
[94] The evidence also indicates that in September 2020, the Executive Director told Ms. Barton that the PSA was not aware of anything revealed in the Investigation that presented any concerns about her conduct. It also indicates that in mid-January 2021, the Investigator asked Ms. Barton if she had any additional recordings. Around the same time, the Representatives told Ms. Barton that she had an ADM position and nothing indicated otherwise.
[95] The parties do not appear to dispute that prior to her dismissal, Ms. Barton was never told that the Recordings were a possible breach of the Standards of Conduct or that she might face disciplinary consequences for making them. The Respondents have not provided any details in their materials that explains why Ms. Barton was not told during the Investigation that the Recordings were a possible breach of the Standards of Conduct. They have not provided any details as to how the PSA arrived at its conclusion that the Recordings breached the Standards of Conduct or why Ms. Barton was not given an opportunity to respond. I note here that in her affidavit, Ms. Barton says that before she went on leave in 2019, she was the Ministry’s Ethics Advisor and does not agree that the Recordings violated the Standards of Conduct. Finally, the Respondents have not provided any information about who was involved in the decision to terminate Ms. Barton’s employment.
[96] Second, the Respondents made no submissions or provided any evidence relating to Ms. Barton’s allegation that she was told at the termination meeting that in addition to the Recordings, her employment was being terminated because she was overly aggressive. In the absence of any submissions or evidence to the contrary, I assume for the purposes of this application that this is not in dispute. As there is nothing before me contradicting Ms. Barton’s allegation that her sex was connected to the termination of her employment because Mr. MacDonald did not criticize male executives for being aggressive, I decline to dismiss this part of her complaint.
f. Conclusion
[97] After considering all the Respondents’ arguments regarding the various categories of allegations, I am not persuaded Ms. Barton has no reasonable prospect of successfully proving them. I am not expressing an opinion on the merits of her complaint. I am only saying that given the nature of the complaint, issues of credibility, key factual disputes, and significant gaps in the evidence before me, this complaint should go to a hearing.
2. Discrimination based on mental disability
[98] In her complaint, Ms. Barton alleges that relying on the Recordings as a reason to terminate her employment constitutes discrimination based on mental disability. Specifically, Ms. Barton alleges that the mental disability she had at the time was a factor in her decision to make the Recordings. Ms. Barton also alleges that before her employment was terminated, the Respondents either knew or should have known she had mental disability and had a duty to inquire whether that mental disability was a factor in her decision to make the Recordings.
[99] The Respondents argue that this part of Ms. Barton’s complaint should be dismissed because there is no reasonable prospect she will be able to prove a nexus between her alleged mental disability and the termination of her employment. They further say the duty to inquire was not triggered because there was no reasonable basis on which to believe there might be a relationship between Ms. Barton’s alleged disability and the Recordings. Last, the Respondents say Ms. Barton never told her employer she had a disability that required accommodation or that her alleged disability was at least one of the reasons she made the Recordings.
[100] In support of their argument, the Respondents cite Alexander v. Northern Health Authority and others (No. 2), 2008 BCHRT 389. In that case, the Tribunal dismissed the complaint against the complainant’s employer under s. 27(1)(c). The Tribunal found there was no reasonable prospect the complainant would be able to prove her employer knew, or should have known, she had a disability that affected her work and might require accommodation: at para. 77. This matters because employers have a duty to make inquiries before making an adverse decision based on an employee’s job performance if the employer is aware, or reasonably ought to be aware, that there is a relationship between the disability and the job performance: Martin v. Carter Chevrolet Oldsmobile, 2001 BCHRT 37 at para. 29.
[101] I observe, however, that the Tribunal has since departed from the view that the burden rests on a complainant to establish that the respondent was aware or ought reasonably to have been aware of the disability and the need for accommodation. Instead, the Tribunal has said that the state of the respondent’s knowledge is an issue properly considered during the analysis of the respondent’s justification defence, specifically whether the respondent has satisfied its duty to accommodate the complainant. The Tribunal said that the underlying principle remains the same, “the respondent is not responsible to accommodate a disability that it was not aware of or could not reasonably have been aware of”: Klewchuk v. City of Burnaby (No. 6), 2022 BCHRT 29 at paras. 366-373. For the purposes of this application, therefore, the Respondents must persuade me they are reasonably certain to prove at a hearing that they were not aware or could not reasonably have been aware of a connection between Ms. Barton’s disability and the Recordings.
[102] I begin by considering whether Ms. Barton has a reasonably likelihood of proving a connection between the termination of her employment and her alleged mental disability.
[103] For the purposes of this application, the Respondents do not dispute that Ms. Barton had a mental disability at the material time. They also do not appear to dispute that the termination of Ms. Barton’s employment constitutes an employment-related adverse impact. Rather, the Respondents argue that Ms. Barton has no reasonable prospect of establishing a nexus between her mental disability and the termination of her employment. I agree.
[104] Ms. Barton’s affidavit and medical evidence indicates that at the time she made the Recordings, she was experiencing anxiety and depression because of her interactions with Mr. MacDonald and what she perceived to be a lack of support from the PSA ADM regarding her complaint. For instance, in her affidavit Ms. Barton says that at the material time, her mental disability made her feel more vulnerable. The medical evidence she provided indicates that before she went on medical leave, Ms. Barton was fatigued and had poor concentration. However, it is not enough for Ms. Barton to allege that she had a mental disability at the time she made the Recordings. There must be some explanation or evidence that supports a connection between Ms. Barton’s anxiety and depression and her decision to record conversations with Mr. MacDonald and the PSA ADM without their knowledge or consent.
[105] In her affidavit, Ms. Barton says she recorded conversations with Mr. MacDonald because she was afraid about his possible conduct in the future. She says she recorded conversations with the PSA ADM so she would have a reliable record of their communications. Last, she says she made the Recordings because she did not believe they violated the Standards of Conduct. The Investigation Report states that Ms. Barton told the Investigator she recorded conversations with Mr. MacDonald because she was worried about her job. She told the Investigator she recorded conversations with the PSA ADM because she did not know if she could trust him. Nothing in the evidence before me indicates that Ms. Barton ever said anything to the Investigator about how her mental disability was connected to the Recordings.
[106] In her affidavit, Ms. Barton says that had the Investigator or employer asked, she would have given them a full explanation for why she made the Recordings. She also says she did not know there was a reason for her to seek disability-related accommodations for having made the Recordings.
[107] Even if that is the case, nowhere in her complaint does Ms. Barton allege that her mental disability was one of the reasons why she recorded conversations with Mr. MacDonald and the PSA ADM without their knowledge or consent. Nowhere in her materials filed in support of this application does Ms. Barton explain how her mental disability played a role in her decision to record conversations with Mr. MacDonald and the PSA ADM without their knowledge or consent. The complaint and the evidence before me all indicate that Ms. Barton made the Recordings for reasons not connected to her mental disability. For these reasons, I am persuaded she has no reasonable prospect of proving this element of her case.
[108] As I have found that Ms. Barton has no reasonable prospect of proving her case at a hearing, it is not necessary for me to consider whether it is reasonably certain the Respondents would be able to establish that their conduct was justified because the duty to inquire was not triggered.
IV CONCLUSION
[109] The Respondents’ application to dismiss part of the complaint under s. 27(1)(g) is denied.
[110] The Respondents’ application to dismiss the complaint under s. 27(1)(c) is granted in part. The complaint of discrimination based on mental disability is dismissed. The complaint alleging discrimination based on sex will proceed to a hearing.
Beverly Froese
Tribunal Member