Cherry v. Ministry of Public Safety and Solicitor General and another, 2025 BCHRT 209
Date Issued: August 20, 2025
File: CS-005836
Indexed as: Cherry v. Ministry of Public Safety and Solicitor General and another, 2025 BCHRT 209
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:
Donald Cherry
COMPLAINANT
AND:
His Majesty the King in right of the Province of British Columbia as represented by the Ministry of Public Safety and Solicitor General and Canada Life Assurance Company
RESPONDENTS
REASONS FOR DECISION
APPLICATION TO DISMISS A COMPLAINT
Section 27(1)(a) & 27(1)(c)
Tribunal Member: Robin Dean
Counsel for the Complainant: Graham Nattress
Counsel for HMTK: Joni Worton
Counsel for Canada Life Assurance Company: Tessa J. Gilmor
I INTRODUCTION
[1] In a complaint filed December 27, 2021, Donald Cherry alleges that the Respondents discriminated against him in the area of employment based on mental disability contrary to s. 13 of the Human Rights Code. His allegations relate to a claim for long term disability [LTD] benefits.
[2] Mr. Cherry alleges that Canada Life Assurance Company adjudicated his LTD claim in a discriminatory manner—i.e. differently than it would have adjudicated a physical disability claim. He says that Canada Life put a fixed end date on his benefits—November 30, 2021—despite the opinions of two medical experts that his benefits should end on February 1, 2022. Mr. Cherry says Canada Life refused to reconsider its decision to end his benefits on November 30, 2021, as it would have in the case of a physical disability.
[3] Turning to Mr. Cherry’s allegations against the Ministry of Public Safety and Solicitor General, he says that the Ministry refused to allow him to return to work after his LTD benefits expired because he was not medically cleared. As a result, he says that he suffered financial loss and retired early.
[4] The Respondents deny that they discriminated against Mr. Cherry. They both file applications to dismiss arguing that the Tribunal is without jurisdiction to hear the case, and, in any event, there is no reasonable prospect the complaint would succeed even if it did go to a hearing.
[5] I find that I can decide the Respondents’ applications under s. 27(1)(c) of the Code. The issue before me is whether there is no reasonable prospect that the complaint will succeed.
[6] For the following reasons, I am satisfied that there is no reasonable prospect the complaint will succeed, and I dismiss the complaint. 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
[7] Mr. Cherry worked for the Ministry from 2004 until he retired on February 1, 2022. From November 2018 until his retirement, he worked in a position that was excluded from Union membership. As an excluded Ministry employee, he was entitled to benefits under the Ministry’s LTD Plan [Plan]. On May 14, 2021, Mr. Cherry applied for LTD benefits after he became totally disabled due to physical and psychological conditions. In his application, his physician as well as his psychiatrist stated an anticipated return to work date of February 1, 2022.
[8] The Province of British Columbia fully funds the Plan. Canada Life assesses claims and makes benefit payment, for which it is reimbursed. The Ministry does not assess claims, review medical information or make eligibility determinations.
[9] In July 2021, Canada Life accepted Mr. Cherry ‘s claim for disability benefits.
[10] In the materials before me is a July 21, 2021 letter from Canada Life informing Mr. Cherry that his claim for disability benefits had been approved up to November 30, 2021 [Decision]. The letter also advised Mr. Cherry of his appeal options within 60 days, including arranging to have his claim reviewed by a Claims Review Committee [CRC]. The 60-day appeal period ended on September 21, 2021.
[11] Canada Life says Mr. Cherry followed up on the letter with a telephone call on July 21, 2021, during which Canada Life confirmed the Decision and the appeal information.
[12] Canada Life says the end date for Mr. Cherry’s LTD benefits was based on the medical evidence he submitted as well as an internal Canada Life medical board review. In Canada Life’s view, it did not have sufficient medical evidence of disability past November 30, 2021.
[13] Mr. Cherry did not file an appeal within 60 days. Nor did he provide any additional medical evidence to trigger a reconsideration before the appeal deadline as was his right under the Long Term Disability Plan Regulation, which sets out the terms of the Plan.
[14] The Ministry says it reached out to Mr. Cherry on October 4, 2021 about his December 1, 2021 return to work. Mr. Cherry reiterated that his doctors had indicated an earliest return to work date of February 1, 2022.
[15] On November 29, 2021, Mr. Cherry submitted a request to file a late appeal of the Decision, which was granted on December 1, 2021. The Ministry says it fully supported Mr. Cherry’s request to file a late appeal.
[16] Mr. Cherry did not return to work on December 1, 2021. He was placed on leave without pay pending the outcome of the CRC appeal. Mr. Cherry had until February 2, 2022 to submit any additional medical information to support his appeal.
[17] Canada Life says it reconsidered the Decision in light of a November 23, 2021 medical note, which read, “Mr. Cherry will be fit for return-to-work trial on February 1, 2022.” However, on December 6, 2021, Canada Life determined that there was not sufficient evidence to demonstrate that Mr. Cherry could not return to work on December 1, 2021.
[18] Mr. Cherry characterizes the end date of his benefits as “immutable”, and he says that Canada Life told him that no further medical evidence would change the end date. He says that Canada Life told him on February 14, 2022 that an end date might have been reconsidered in the case of a serious physical condition, but not in the case of a mental health claim.
[19] Canada Life acknowledges this conversation but says that it was based on a hypothetical posed by Mr. Cherry, asking whether his claim would have been approved if he had undergone spinal surgery and provided a specialist report. Canada Life says its representative told Mr. Cherry in that situation, Canada Life might have reopened the claim and considered ongoing claim management. However, it says that mental and physical disability claims are administered in the same way. It says the onus was on Mr. Cherry to prove his entitlement to ongoing LTD benefits under the Plan and that he did not submit further medical information despite the Respondents’ request.
[20] The CRC hearing was scheduled for April 13, 2022. In the meantime, Mr. Cherry submitted additional medical information to Canada Life. On January 24, 2022, Canada Life determined that the further medical information did not alter the Decision.
[21] The Ministry says the British Columbia Public Service Agency [PSA] tried to arrange a modified return to work plan for Mr. Cherry while he awaited the CRC hearing. The PSA offered Mr. Cherry accommodation with modified duties or placement in a different position. Mr. Cherry says he the PSA told him he could not return to work because he did not have medical clearance to do so. In the materials before me is an email from the PSA to Mr. Cherry telling him that medical clearance indicating any restrictions and limitations would be required to return to work.
[22] Mr. Cherry says that when he discussed the end of his benefits period with the PSA, a PSA Corporate Advisor told him that he was being treated differently because he was dealing with a mental disability rather than a physical disability. According to Mr. Cherry, the PSA Corporate Advisor said they “would not even be having this discussion if my ongoing disability was due to a new complication with my back that is supported by medical evidence, as that would be an irrefutable condition.”
[23] On January 17, 2022, Mr. Cherry informed the Ministry that he would be retiring on January 31, 2022, but that he would proceed with the CRC process. Mr. Cherry says he felt like he had no other choice but to retire so that he could begin receiving money from his pension. Therefore, Mr. Cherry therefore did not return to work on February 1, 2022.
[24] On April 22, 2022, Mr. Cherry was paid the full amount of his claim to the CRC after the PSA instructed Canada Life to accept the LTD claim for the period of December 1, 2021 to January 30, 2022, on a without prejudice and precedent basis. As a result, the CRC hearing was cancelled.
III DECISION
[25] The Respondents apply to dismiss Mr. Cherry’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.
[26] 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.
[27] 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.
[28] 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.
[29] 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.
[30] To prove his complaint at a hearing, Mr. Cherry will have to prove that he has a characteristic protected by the Code, he was adversely impacted in employment, and his protected characteristic was a factor in the adverse impact: Moore v. British Columbia (Education), 2012 SCC 61 at para. 33. If they did that, the burden would shift to the Respondents to justify the impact as a bona fide occupational requirement. If the impact is justified, there is no discrimination.
[31] The Respondents do not dispute that Mr. Cherry has a mental disability. Rather, they say Mr. Cherry has no reasonable prospect of proving an adverse impact or a connection between his mental disability and any adverse impact. As I understand it, Mr. Cherry alleges that he was adversely impacted by the early cessation of his LTD benefits (i.e. before February 1, 2022) and his early retirement. I will address each allegation in turn.
[32] Mr. Cherry alleges that Canada Life set a fixed end date for his LTD benefits (November 30, 2021), which ignored his doctors’ opinions that he would not be prepared to return to work before February 1, 2022. He says in doing so, Canada Life caused financial and emotional harm. Mr. Cherry says he could not survive without the LTD benefits, so he made the choice to retire early, at age 55, in order to collect his pension. Mr. Cherry describes feeling like he was in a Catch-22 situation, because the Respondents refused to recognize his doctors’ medical opinions for the purpose of his LTD benefits but at the same time would not allow him to return to work because he had not been medically cleared to do so, based on those same medical opinions. He says that his early retirement caused him to retire with a lower pension, to lose income, and to suffer further and more intense symptoms of his mental disability.
[33] The Respondents dispute that Mr. Cherry suffered any adverse impacts attributable to them. They say that the adverse impacts alleged by Mr. Cherry flowed from his own failure to appeal the Decision, which approved his LTD benefits to an end date of November 30, 2021. They say that had Mr. Cherry appealed in time, he would not have had to wait so long for his appeal to be heard, and he could have been collecting LTD benefits while he waited for the CRC hearing. They further say they requested additional medical information from him to justify reassessing the end date of his LTD benefits, but Mr. Cherry failed to provide them with the additional medical information that would have been necessary.
[34] I am persuaded that Mr. Cherry has no reasonable prospect of proving he suffered an adverse impact attributable to the Respondents with respect to his early retirement. Mr. Cherry retired on the day he was scheduled to return to work, which would have resumed with salary and benefits. Mr. Cherry says he had to retire because he had been living with no income since the end of November and he needed the money from his pension. I do not understand from the materials before me how his salary would not have provided him with the required funds if he had returned to work. Nor do I have any evidence before me that Mr. Cherry was not medically cleared to return to work on February 1, 2022, or that the Respondents hindered Mr. Cherry’s return to work. I am persuaded that Mr. Cherry has no reasonable prospect of proving any adverse impact flowing from his early retirement is due to the Respondent’s conduct. I am satisfied that under these circumstances, it is appropriate to dismiss this aspect of Mr. Cherry’s complaint under s. 27(1)(c).
[35] Turning to the loss of LTD benefits between November 30, 2021 and February 1, 2022, I am also persuaded that this allegation has no reasonable prospect of success. Mr. Cherry alleges that Canada Life processed his claim differently than it would have for a physical disability, including by putting a fixed end date on his LTD benefits. This is based on speculation and conjecture and is not borne out in the materials before me.
[36] The materials before me indicate that Mr. Cherry applied for and was receiving LTD benefits not only for a mental disability, but also for a physical one. Canada Life says the claim was assessed and a decision made on the basis of both mental and physical disability. Indeed, in the medical records as well as Mr. Cherry’s application for LTD benefits, Mr. Cherry’s mental health struggles and his difficulties with back pain are cited as reasons for needing time off work. In Canada Life’s July 21, 2021 letter, Canada Life says it is allowing his claim until November 30, 2021 so that he can get treatment for both issues.
[37] Mr. Cherry relies on a telephone conversation he had with a Canada Life representative, who told him that given the closed timeframe for benefits, further medical information would not be considered to reopen his claim. During the phone call, the representative told him in response to a hypothetical Mr. Cherry posed that further medical evidence would be considered and his claim possibly reopened if he had received an invasive spinal surgery. Mr. Cherry cites this call as evidence that his claim was being adjudicated differently than it would in the case of a physical injury. However, the materials before me indicate that Mr. Cherry did submit a further medical note in November 2021, which said that he would not be ready to return to work until February 2022. Canada Life says it considered that further information, and I have no evidence before me that it did not. While the representative might have told Mr. Cherry something different over the phone, based on a hypothetical, the materials indicate that Canada Life did reassess his claim after he submitted the November 2021 medical note.
[38] Finally, Mr. Cherry takes issue with Canada Life’s decision not to extend his LTD benefits to February 2022 despite the medical note. He says that Canada Life failed to inform him what kind of information it needed to reconsider the LTD claim. But I am persuaded that Mr. Cherry has no reasonable prospect of proving that the failure to do these things was discriminatory. The evidence before me is that Canada Life assessed Mr. Cherry’s claim based on an internal medical review. It was not satisfied that the one sentence letter from his doctor was sufficient additional medical evidence that he required his benefits to be extended. There is no evidence, aside from Mr. Cherry’s speculation that Canada Life would have managed his LTD claim any differently had it arisen from a purely physical condition. I am satisfied that there is no reasonable prospect of proving that Mr. Cherry’s mental disability was a factor in the way that Canada Life adjudicated his claim for LTD benefits.
[39] Further, even if I were not satisfied that there was no reasonable prospect of Mr. Cherry proving his case, I am persuaded that the Respondents are reasonably certain to prove a defence. Mr. Cherry says that the Respondents failed to accommodate him, making things harder for him during the LTD process, including misinforming him about the appeals process, and ultimately forcing him to retire. He seems to suggest that the whole LTD process should be revamped so that claimants do not have to wait without money while their claims are being appealed to the CRC.
[40] Based on the materials before me, I am satisfied that the Respondents took all reasonable and practical steps to avoid the negative impact on Mr. Cherry. The correspondence before me indicates that the Respondents worked with Mr. Cherry to ensure that his late appeal to Canada Life was allowed. The materials also indicate that the Ministry tried to work with Mr. Cherry on a modified return to work while he awaited the outcome of his appeal. It asked Mr. Cherry to provide medical clearance indicating any restrictions and limitations. While Mr. Cherry says he was unable to provide this medical clearance, in my view, this demonstrates the Ministry exhausting available options to accommodate Mr. Cherry within the confines of the Plan as it is written and administered. I am not persuaded that it would have been reasonable for the Respondents to revamp the way the Plan operates to accommodate Mr. Cherry. Mr. Cherry is entitled to reasonable, not perfect or preferred, accommodation.
[41] Because I am persuaded that Mr. Cherry has no reasonable prospect of proving his case and that the Respondents are reasonably certain to prove a defence, I dismiss Mr. Cherry’s complaint.
IV CONCLUSION
[42] I dismiss Mr. Cherry’s complaint. The complaint will not proceed.
Robin Dean
Tribunal Member