Christensen v. Caretenders Financial Services Inc., and others (No. 3), 2025 BCHRT 212
Date Issued: August 21, 2025
File: CS-000692
Indexed as: Christensen v. Caretenders Financial Services Inc., and others (No. 3), 2025 BCHRT 212
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:
Penny Christensen
COMPLAINANT
AND:
Caretenders Financial Services Inc., and Vernon Miller and Caretenders Retirement Living, and Caretenders Inc., and Cindy Makarenko
RESPONDENTS
REASONS FOR DECISION
Tribunal Member: Shannon Beckett
Counsel for the Complainant: Trevor Thomas
Counsel for the Respondents: Scott D. Chambers
Date of Hearing: November 20-24, December 11-13, 2023, and January 12, April 19, 2024
Written Closing Submissions August 13, 2024
Location of Hearing: Videoconference – MS Teams
II PRELIMINARY ISSUE – PROPER RESPONDENTS
I INTRODUCTION
[1] Penny Christensen alleges Caretenders Financial Services Inc., Vernon Miller, Caretenders Retirement Living, and Cindy Makarenko [together the Respondents] discriminated against her when they terminated her employment because of her mental disability.
[2] As I explain in greater detail below, Mr. Miller and Ms. Makarenko are business and common-law partners who are the directing minds behind a series of interrelated corporate entities that share the Caretenders name. The Caretenders corporations develop and operate seniors’ retirement communities.
[3] Ms. Christensen was the Facility Manager for Heaton Place, one of the Respondents’ retirement communities located in Armstrong. She worked in this role for approximately five years until the Respondents terminated her employment on a without cause basis in August 2019.
[4] Ms. Christensen says that leading up to her termination she was experiencing extreme pressure and stress at work, and the Respondents knew she was struggling with burnout. She says that on July 31, 2019, she finally had a complete mental breakdown, which led her family doctor to determine she was medically unfit for work. Ms. Christensen says that while she was on medical leave, the Respondents found out that she had reached out to their benefits administrator to inquire about Long Term Disability [LTD] benefits. Approximately one week later, the Respondents terminated her employment. Ms. Christensen says the temporal connection between the termination and the Respondents’ knowledge of her medical leave and inquiry about LTD benefits should lead the Tribunal to infer that her mental disability was a factor in the Respondents’ decision to terminate her.
[5] The Respondents deny discriminating. They say that Ms. Christensen was a poor performing employee who had been amassing excessive amounts of lieu time in the last few months of her employment. They say that when she became aware that they were investigating her performance and lieu time, she went on medical leave specifically to avoid being terminated. The Respondents adamantly deny they knew anything about Ms. Christensen’s alleged mental disability, and argue that they terminated her employment solely for non-discriminatory reasons, being her poor performance and excessive lieu time. Further, they say they made the decision to terminate her employment before she went on medical leave or inquired about LTD benefits, so it is clear her alleged mental disability had nothing to do with their decision.
[6] Resolution of this complaint turns on whether Ms. Christensen has established that she had a mental disability at the relevant time, when the Respondents decided to terminate Ms. Christensen’s employment, and what they knew about her mental condition at the time.
[7] For the following reasons, I find Ms. Christensen has proved the Respondents discriminated against her. Ms. Christensen has proved she had a mental disability at the time she was terminated, and that the Respondents had some knowledge of her mental health condition prior to her leave. She has further proved the Respondents decided to terminate her employment shortly after she went on medical leave and had inquired about LTD benefits. I do not accept the Respondents’ evidence that they decided to terminate Ms. Christensen before her leave and inquiry about LTD benefits. I accept that the Respondents had legitimate concerns about Ms. Christensen’s performance, particularly her lieu time accumulation. However, on balance, I find the timing of the termination, in light of what the Respondents knew at the time, gives rise to the reasonable inference that Ms. Christensen’s mental disability was at least a factor in her termination.
II PRELIMINARY ISSUE – PROPER RESPONDENTS
[8] Below, I explain my decision to add Caretenders Inc. as a respondent in this complaint.
[9] In an earlier decision in relation to this complaint, the Tribunal identified that the named respondents did not appear to match the employment documents tendered in support of the application. In particular, the Tribunal identified that Ms. Makarenko appeared to be the controlling mind of Caretenders Inc., a corporate entity that was not listed as a respondent in the complaint: Christensen v. Caretenders Financial Services Inc. and others, 2023 BCHRT 47, at para. 7.
[10] Prior to the hearing, and again before the close of the hearing, I invited the parties to make submissions on whether the Respondents were properly named for the purposes of the complaint. The parties did not provide submissions. However, the Respondents – as named in the complaint – describe themselves as follows:
a. the complainant’s former employer, Caretenders Inc.,
b. a separate corporation unrelated to the Complainant’s employment,
c. the shareholders of the respective corporations, Vern Miller and Cindy Makarenko.
[11] I am satisfied that it is appropriate to add Caretenders Inc. as a Respondent to the style of proceeding because the Respondents proceeded through the course of the hearing on the basis that Caretenders Inc. was Ms. Christensen’s employer. They say the same in their closing submissions. Further, the Respondents’ closing submission state that Caretenders Inc. has been properly named in the complaint, despite it notbeing named in the complaint.
[12] Going forward, my reference to “Respondents” includes Caretenders Inc. and the other four Respondents originally set out in this complaint. I move on now to set out the relevant background to this complaint.
III BACKGROUND
[13] The Respondents describe Heaton Place as a retirement community of 76 strata units which are meant to be occupied by people who are at least 55 years old. Some of the people living at Heaton Place own their strata units, and some lease them. Mr. Miller and Ms. Makarenko own a number of suites at Heaton Place. In addition to housing, Heaton Place offers activities, meals, and housekeeping services to residents at various levels and various costs.
[14] As Facility Manager, Ms. Christensen was the overall manager for Heaton Place. The managers of the various departments at Heaton Place, such as housekeeping, maintenance, activities, and food preparation, all reported to her.
[15] When she first started as Facility Manager, Heaton Place employed an administrative assistant, RD, and a marketing director, SR. SR left her position in approximately December 2015. The Respondents did not hire a replacement for her during the course of Ms. Christensen’s employment. RD left her position in approximately October 2017. Following October 2017, there were periods during Ms. Christensen’s employment where she was working without an administrative assistant. Eventually, in 2018, Ms. Christensen hired TE as Heaton Place’s Administrative Assistant. TE continued to work at Heaton Place after Ms. Christensen’s employment was terminated.
[16] In her role as Facility Manager, Ms. Christensen reported directly to Ms. Makarenko, who worked out of Head Office. Head Office was located in Kelowna, where Ms. Makarenko, Mr. Miller, and Christy Graham, the Respondents’ Accounting Manager, worked. In addition to reporting to Ms. Makarenko, Ms. Christensen also provided financial and other accounting information to Ms. Graham, and sometimes provided information, such as marketing information, directly to Mr. Miller.
[17] The Respondents say that in 2017, they became concerned with Ms. Christensen’s work performance. Mr. Miller testified that he was not happy with her failure to grow occupancy rates at Heaton Place. He said he wanted to “part ways” with her at the time, but that he and Ms. Makarenko agreed to allow Ms. Christensen to continue working, with Ms. Makarenko’s support and mentorship, to see if her performance improved. Ms. Makarenko echoed this testimony.
[18] It was around this time when Ms. Christensen says she began to experience physical and mental symptoms which were affecting her at home and at work. She testified that in 2017, she began receiving mental health support to help her deal with these symptoms.
[19] Ms. Christensen testified that neither Mr. Miller nor Ms. Makarenko ever told her they were dissatisfied with her performance, and in fact, Ms. Makarenko regularly advised her she was doing a wonderful job. Nevertheless, the evidence demonstrates that in 2019 the Respondents became concerned about Ms. Christensen’s accumulation of “lieu time”. The parties explained that “lieu time” was a record of overtime hours worked.
[20] Ms. Christensen testified that by January 2019 her workload had become extremely heavy, and she was finding it impossible to fit her job duties and the needs of Heaton Place into her regular work hours. As a result, she said she continued to accumulate lieu time. A series of emails from Ms. Makarenko to Ms. Christensen starting in January 2019 demonstrate that Ms. Makarenko had asked Ms. Christensen several times to provide a schedule for when she was going to take her remaining lieu days off so that she could get “caught up” on her banked lieu time.
[21] On July 25, 2019, Ms. Christensen emailed Ms. Makarenko and asked to take August 1-2 and three other days off as lieu time. On July 26, Ms. Makarenko sent Ms. Christensen an email advising her that she was no longer allowed to bank or track her lieu time. In this email, Ms. Makarenko set out a schedule for Ms. Christensen to use 7.5 days of her outstanding lieu time. The proposed dates did not match the dates Ms. Christensen had requested.
[22] Ms. Christensen responded the next day. She advised Ms. Makarenko that her husband had surprised her with tickets to a music festival, and that is why she was asking for the August 1-2 dates as lieu days.
[23] On July 29, Mr. Miller became involved and wrote to Ms. Christensen and Ms. Makarenko advising them that he was going to undertake an investigation into Ms. Christensen’s use of lieu time. He advised that until the investigation was complete, Ms. Christensen was not permitted to accumulate or use any banked lieu time. He further advised that he expected to be able to meet with both of them on August 2 to advise them about the results of his investigation.
[24] On July 30, Ms. Christensen re-submitted her request for August 1-2 off. This time she requested to take the time off as vacation time. The Respondents granted Ms. Christensen’s vacation request on July 30.
[25] On July 31, Mr. Miller wrote to Ms. Christensen and advised that because of her scheduled vacation, he would reschedule their meeting to the following week. He also advised that his investigation had “revealed a number of issues that I am not pleased with beyond just lieu time”.
[26] Later that day, Ms. Christensen attended an appointment with her family doctor. Her doctor wrote her a note stating that Ms. Christensen was unable to work due to “medical reasons”. It said that her return-to-work date was uncertain, but that she would require a minimum of 2.5 weeks off. The note indicated Ms. Christensen would be reassessed prior to August 18.
[27] On the evening of July 31, Ms. Christensen went out for dinner with friends at a local restaurant. She testified that she did not want to be alone in her home after having a mental breakdown at her doctor’s office. JP, the night attendant at Heaton Place, was present at the restaurant at the same time as Ms. Christensen. There is some conflict in the evidence about a conversation that took place between JP and Ms. Christensen at the time. I will address that conflict later in these reasons.
[28] On August 1, Mr. Miller wrote to Ms. Christensen acknowledging receipt of the medical note. In his email he told Ms. Christensen the Respondents may require further medical information from her prior to her return to work, and he advised her not to attend the Heaton Place premises in the meanwhile.
[29] Between August 1-6, Ms. Christensen travelled to Merritt with her husband and attended the music festival as planned. She testified that her doctor had advised that she attend the festival to reduce her stress and to benefit her mental health.
[30] At some point between August 1-6, Ms. Christensen reached out to the Respondents’ benefits administrator to ask questions about her entitlement to sick leave benefits.
[31] On August 6, the benefits administrator contacted the Respondents and told them that Ms. Christensen had inquired about LTD benefits, and they had provided her with an application package.
[32] On August 13, Ms. Christensen had another appointment with her family doctor. On that date, her doctor wrote another medical note stating Ms. Christensen needed to remain off work “due to medical reasons” until at least September 15.
[33] On August 14, Mr. Miller met with Dave Enoch, who was the maintenance manager at Heaton Place. During their meeting, Mr. Enoch asked Mr. Miller whether he planned on terminating Ms. Christensen’s employment. He then advised Mr. Miller that Ms. Christensen was dealing with serious kidney issues.
[34] On August 15, the Respondents couriered Ms. Christensen a letter terminating her employment effective August 15. The letter set out that the Respondents would pay Ms. Christensen five weeks pay in lieu of notice. It further offered her one additional month’s pay if she signed a “full and final release” agreeing to absolve the Respondents from any legal claim she might have against them. Ms. Christensen testified she did not pick up the package right away and, when she did, she did not sign the release.
[35] On August 18, Ms. Christensen sent the Respondents the August 13 doctor’s note.
[36] On August 19, Mr. Miller emailed Ms. Christensen the termination documents the Respondents had couriered to her on August 15. At this point, Ms. Christensen said she became aware that her employment had been terminated.
IV ANALYSIS AND DECISION
[37] To prove her complaint, Ms. Christensen must prove:
a. She had a condition that amounts to a mental disability within the meaning of the Human Rights Code;
b. She experienced an adverse impact in her employment; and
c. Her mental disability was a factor in the adverse impact she experienced.
Moore v. British Columbia (Education), 2012 SCC 61, at para. 33
[38] The Respondents concede that the termination of Ms. Christensen’s employment constitutes an adverse impact for the purposes of the Code. Therefore, I need only consider the first and third elements of the above test. I first consider whether Ms. Christensen has demonstrated that she had a mental disability for the purposes of the Code.
A. Mental disability
[39] Ms. Christensen argues that the evidence demonstrates that starting in 2017, and culminating in 2019, she had an involuntary mental disorder that significantly impacted her ability to participate fully and equally in society, and which had a significant degree of permanence and persistence. She says she was diagnosed on July 31 with severe depression and a manic-depressive episode, and that she has been living with anxiety and depression since that time. Ms. Christensen argues that the medical notes she provided and a letter from an internist, Dr. Chai, support her oral evidence about the nature and extent of her disability leading to her termination in August 2019.
[40] For the following reasons, I find Ms. Christensen has proved she had a mental disability leading up to and at the time the Respondents terminated her employment.
1. General principles
[41] The Code does not define “disability”, but the Tribunal interprets the term liberally to achieve the purposes of the Code: British Columbia Human Rights Tribunal v. Schrenk, 2017 SCC 62 at para. 31. The purposes of the Code include the removal of barriers that people face in certain areas of daily life because of their disabilities. Those barriers may arise from actual functional limitations associated with a disability, or society’s perception of, or response to, the disability. People with disabilities have long faced exclusion and marginalization based on stereotype, ignorance, and fear: Eldridge v. British Columbia (Attorney General), [1997] 3 SCR 624. It is that exclusion and marginalization, founded on generalizations and prejudice, which the Code seeks to eliminate.
[42] To decide whether a condition is a “disability”, the Tribunal will consider the degree of impairment, any functional limitations, and the social, legislative, or other response to that impairment and/or limitations: Morris v. BC Rail, 2003 BCHRT 14, at para. 214. It considers factors like “whether the condition entails a certain measure of severity, permanence and persistence”: Viswanathapuram v. Canadian Alliance of Physiotherapy Regulators, 2017 BCHRT 29 at para. 40.
[43] The Tribunal has held that it is not necessary that a medical condition be permanent in order to amount to a disability for the purposes of the Code: Wali v. Jace Holdings Ltd., 2012 BCHRT 389, at para. 82. However, simply because a person is on a medical leave from work due to a medical condition does not mean the condition will automatically amount to a disability: Goode v. Interior Health Authority, 2010 BCHRT 95. In other words, “disability” does not capture every medical problem.
2. Adverse inference
[44] The Respondents say that the Tribunal should draw an adverse inference against Ms. Christensen in relation to her alleged disability because she failed to disclose her medical records from her treating physicians, provide any expert reports in relation to her alleged mental disability, or call any of her doctors to testify at the hearing. The Respondents say that because of the lack of medical evidence, the Tribunal should infer that Ms. Christensen’s medical records and/or physician testimony would have demonstrated that she did not suffer from any mental disability at the time of the events or following the events.
[45] The Tribunal has discretion to draw an adverse inference in situations where evidence relating to a key issue in dispute is not presented at a hearing: Christensen v. Save-a-Lot Holdings Corp. (No. 3), 2023 BCHRT 125 at para 26; Loiselle v. Windward Software Inc. (No. 2), 2021 BCHRT 7 at para. 69. In Port Coquitlam Building Supplies Ltd. v 494743 B.C. Ltd., 2018 BCSC 2146, at paras. 67-68, the BC Supreme Court explained that the question of whether to draw an adverse inference depends on the specific context of each case, including factors like:
a. Whether there was a legitimate explanation for the failure to introduce the evidence;
b. Whether the evidence was within the exclusive control of the party who failed to introduce it, and whether the evidence was equally available to other parties;
c. Whether the evidence was material to the case; and
d. Whether the evidence is the only evidence or the best evidence available.
[46] I am not persuaded that it would be appropriate to draw an adverse inference in the present case.
[47] First, it is not strictly necessary for parties who appear before the Tribunal to introduce specific medical evidence in order to prove their complaints: Gichuru v. Purewal, 2017 BCHRT 19 at para. 275. That said, failing to call expert evidence or more comprehensive medical records may end up being fatal to a complainant’s case, as it is the complainant who bears the burden of proving their disability. In the present case, medical evidence is not the only evidence of Ms. Christensen’s disability. For example, she has given oral evidence about the nature and extent of her medical conditions, and relied on two doctor’s notes from July and August 2019 as well as an August 2019 letter from an Internist, Dr. Chai.
[48] Second, shortly before the hearing, Ms. Christensen did disclose some, albeit limited, medical records in relation to this complaint. The Respondents objected to her late disclosure of these records, and argued that they would be prejudiced if the records were to be introduced at the late stage of proceedings. I agreed with the Respondents, and ruled that the documents were not admissible because the prejudice to the Respondents and the process outweighed the potential probative value of the documents. However, this incident indicates that Ms. Christensen was prepared to disclose at least some of her medical records in support of her complaint, if only at the eleventh hour. I find this weighs against drawing an adverse inference.
[49] Finally, throughout the course of this proceeding, the Respondents have been free to seek disclosure of Ms. Christensen’s medical files, and if disclosure was refused, to apply to the Tribunal to compel disclosure. The Respondents have been aware of the nature of Ms. Christensen’s allegations about her mental disability since her complaint was filed, or at least since receiving the Tribunal’s decision on their dismissal application. Further, the Respondents have been represented by legal counsel throughout this proceeding. I agree with the Respondents that it is concerning that Ms. Christensen (who was also represented by legal counsel throughout this proceeding) did not voluntarily disclose the arguably relevant parts of her medical files in advance of the hearing. It is her obligation to do so. However, that the Respondents took no steps to attain these documents weighs against any adverse inference I might otherwise draw.
[50] On the facts of this case, I decline to draw an adverse inference against Ms. Christensen for failing to produce her medical files or calling her treating medical professionals. I move on now to consider whether Ms. Christensen has proved she had a mental disability.
3. Has Ms. Christensen proved mental disability?
[51] Ms. Christensen testified that in the months leading up to her termination, she had been experiencing significant workplace stress that was causing her physical and mental symptoms. Ms. Christensen testified that in 2017, she began to see a social worker therapist, Deanna Neufeld. She said prior to this time she was a happy person who always had a smile on her face, but that had changed and she just wasn’t herself. She began developing headaches and wasn’t sleeping. She testified that she spoke with Ms. Neufeld about how she was feeling and the impact on her home life and her relationship with her husband. She said she was feeling anger and taking it out on her husband at the time. She testified that she and her husband went to see Ms. Neufeld together several times.
[52] Ms. Christensen said that over time her symptoms worsened, and that in early 2018, her stress began physically affecting her. She testified that she saw her family doctor, Dr. McClellan, for chest pain, very high blood pressure, and because she wasn’t sleeping. She said that Dr. McClellan started her on blood pressure medication and referred her to an Internist/Cardiologist, Dr. Vaz. She testified that Dr. Vaz ran a number of tests and put her on blood thinners and nitro glycerin, but those medications did not help with her symptoms. She testified that at the time she felt as though she was “running on 100% adrenaline all day long”.
[53] Ms. Christensen said that she was sent for additional tests and that her lab results were abnormal, and she started to lose her voice and develop sores in her mouth. She said her doctors started talking about the possibility of cancer. She testified that she was referred to another Internist, Dr. Chai, who was located in Vernon. She said he looked at her adrenal system and liver and diagnosed her with an adrenal gland disorder that was causing her liver pain. He advised her it was related to anxiety and there was no medication that could treat it and that she needed to “de-stress and take it easy”. Ms. Christensen testified that she still sees Dr. Chai annually.
[54] With respect to her mental health, Ms. Christensen testified that she continued to see Ms. Neufeld until Ms. Neufeld moved away. After that time, Ms. Christensen saw another social worker therapist for approximately five sessions.
[55] As a result of her physical symptoms, Ms. Christensen said she saw Dr. McClellan approximately every two weeks. She testified she saw her in July 2019 and was prescribed sleeping pills, but the sleeping pills did not work and her mental health continued to decline. She testified that the appointment she had with Dr. McClellan on July 31, 2019, was pre-booked on the two-week schedule, and that when she attended she immediately began to cry and was inconsolable. Ms. Christensen testified that on that day, Dr. McClellan prescribed antidepressant medication and told her to go off work. She says Dr. McClellan also diagnosed her that day with “severe depression” and told her she had experienced “a manic-depressive episode”.
[56] When asked whether any of the other doctors she saw provided her with any diagnoses Ms. Christensen testified that Dr. Vaz told her that her heart was healthy, and that her symptoms were stress related. She said that Dr. Chai, similarly, said her adrenal gland disorder was related to anxiety. She testified that as a result of the sores in her mouth, she was referred to an ear, nose, and throat specialist, Dr. Massa, who determined that the sores in her mouth were caused by stress. She was then referred to Dr. Ng, another specialist, who she sees annually because the sores in her mouth could turn into cancer.
[57] Ms. Christensen testified that since July 31, 2019, she has struggled with severe depression and anxiety. She testified that she continues to require a number of daily medications to manage these conditions, and has been unable to work for the past several years.
[58] In addition to her oral evidence, Ms. Christensen relies on three medical documents entered into evidence at the hearing. She says these documents support her position that she was suffering from a mental disability leading up to and at the time of her termination. First, Ms. Christensen points to the two doctor’s notes from Dr. McClellan, which she provided to the Respondents in July and August 2019. The July 31 note indicates that Ms. Christensen was unable to work for at least 2.5 weeks due to medical reasons, and that she would be reassessed before August 18. The August 13 note indicates that Ms. Christensen needed to remain off work due to medical reasons until at least September 15, and that she would be reassessed regularly. Finally, Ms. Christensen points to a July 18 letter from Dr. Chai. The letter confirms that Ms. Christensen had an upcoming appointment with Dr. Chai on August 15.
[59] The Respondents say that Ms. Christensen has not proved she had a disability leading up to or at the time she was terminated in August 2019. They say that her oral evidence about her disability is uncorroborated and self serving. Further, they say that the two doctor’s notes from Dr. McClellan are non-descript, generic, and insufficient evidence to demonstrate Ms. Christensen had a mental disability at the relevant time. They argue that the notes could have been in relation to any ailment, and so they do not corroborate Ms. Christensen’s testimony about her mental disability.
[60] I disagree. The medical notes indicate that between July 31 and at least September 15, Ms. Christensen’s doctor had determined that she should be off work. This amounts to approximately 1.5 months that Ms. Christensen’s doctor advised she was medically unfit to work. This is not an insignificant period of time. In my view, it reasonably indicates that Ms. Christensen’s medical condition was something more than a trivial health matter such as a cold or flu.
[61] Further, although the medical notes do not reference a specific condition, they support Ms. Christensen’s testimony about the extent and timing of her mental condition. Similarly, although the letter from Dr. Chai does not reference any mental condition, the letter references an appointment scheduled for August 15, 2019, which supports Ms. Christensen’s testimony about the various inquiries she made into her physical symptoms around the time of her termination in August 2019.
[62] With respect to Ms. Christensen’s evidence that all of the doctors she saw ultimately attributed her physical symptoms to mental stress, mental stress is not the same as a mental disability within the meaning of the Code. This Tribunal has held that an allegation of workplace stress or anxiety, on its own, may not amount to a mental disability for the purposes of the Code: Young v. Vancouver Coastal Health Authority et al., 2018 BCHRT 27; Matheson v. Okanagan Similkameen School District No. 53, 2009 BCHRT 112; Vandale v. Town of Golden and others, 2009 BCHRT 219; Enoch v. Caretenders Inc. and another, 2023 BCHRT 211.
[63] However, in this case, Ms. Christensen’s oral testimony extended beyond evidence of stress at work. It included information about the specific impacts of the workplace stress on her physically and mentally, and information about specific mental health diagnoses of severe depression and a manic-depressive episode. Her evidence was not simply that she experienced stress, rather it was that she developed severe depression and had a manic-depressive episode as a result of the stress, and that she continues to live with disabling anxiety and depression. In this way, Ms. Christensen’s complaint is distinguishable from the above cases.
[64] I accept Ms. Christensen’s evidence that on July 31 her doctor diagnosed her with severe depression and a manic-depressive episode, and I am persuaded that these diagnoses amount to a disability in this case. It is clear that depression and/or bipolar conditions can amount to mental disabilities for the purposes of the Code.
[65] Most importantly, I accept Ms. Christensen’s evidence about the debilitating impact of her mental health condition at the time, her need for ongoing medication to treat it, and its long-lasting effects.
[66] I am not persuaded by the Respondents’ arguments that Ms. Christensen could not be disabled because she attended a restaurant with friends the evening of July 31, and attended and enjoyed a music festival with her husband in the days that followed. Mental disabilities are complex, and do not necessarily manifest in ways as obvious as some physical disabilities do. Moreover, mental illnesses are typically not treated in the same ways as physical illnesses are. For example, it would clearly undermine a claim of disability if a person was alleging they were home sick with COVID-19 and physically unable to work, but then attended a multi-day outdoor music festival. However, the treatment for a person with depression, anxiety, or a bipolar condition might not be to stay at home alone in bed until they get better. In the present case, Ms. Christensen’s testimony was that her doctor advised it would be good for her mental health to take time for herself and attend the festival. She said she needed to start relaxing and taking time for herself. She testified that she enjoyed the time she spent at the festival with her husband, and that the lack of internet and cell service was good for her. On the specific facts of this case, that Ms. Christensen took steps to improve her mental health by spending time with friends and taking a vacation with her husband, does not contradict her claim that she had a mental disability at the time.
[67] I am also not persuaded by the Respondents’ argument that because Ms. Christensen was denied LTD benefits, she could not be disabled. In particular, the Respondents argue that the LTD insurer determined that nothing prevented Ms. Christensen from “carrying out her normal duties and responsibilities”, which demonstrates she has not been medically unable to work as she claims. This is an inaccurate characterization of the LTD denial letter. The letter advised that Ms. Christensen’s application for LTD benefits was being denied because she did not meet the definition of “Total Disability” or “Totally Disabled” in her LTD policy. It explained that a person would be considered totally disabled if, “solely as a result of Injury or Sickness”, they were “unable to perform the main duties of [their] usual employment”. Thus, the letter actually held that Ms. Christensen had not satisfied the insurer that “solely as a result of injury or sickness” she was unable to perform her usual employment duties. Further, Ms. Christensen testified that her understanding of why she did not meet the definition of “totally disabled” was that the definition of disability did not include mental conditions.
[68] Regardless of the nature of the determination, I find the LTD letter does not overtake Ms. Christensen’s evidence that she had a mental disability. An insurer’s determination that a person is (or is not) disabled for the purposes of a particular policy, is not the same as whether a person has a disability for the purposes of the Code. It is not consistent with a large and liberal interpretation of the Code to constrain the concept of disability to assessments made by third parties under contractual policies.
[69] On the whole of the evidence, I find Ms. Christensen has demonstrated on a balance of probabilities that in the period leading up to her termination in August 2019, she had a mental disability within the meaning of the Code.
[70] I move on to consider whether Ms. Christensen’s mental disability was a factor in the Respondents’ decision to terminate her employment.
B. Was mental disability a factor in Ms. Christensen’s termination?
1. General principles and positions of the parties
[71] This Tribunal has recognized that parties rarely announce discrimination on the basis of a protected characteristic, and such discrimination must often be established by reasonable inferences drawn from surrounding circumstances: Complainant v. College of Physicians and Surgeons of BC (No. 2), 2018 BCHRT 189, at para. 96. An inference of discrimination may arise “where the evidence offered in support of it renders such an inference more probable than the other possible inferences or hypotheses”: Vestad v. Seashell Ventures Inc., 2001 BCHRT 38 at para. 44; Campbell v. Vancouver Police Board (No. 4), 2019 BCHRT 275, at para. 103.
[72] The timing of a termination can give rise to an inference of discrimination: Parry v. Vanwest College, 2005 BCHRT 310 at paras. 63-64. In the disability context, if an employee is terminated while they are on medical leave, this may support an inference that an employee’s disability or perceived disability was a factor in the termination: Morris v. BC Rail, 2003 BCHRT 14, at para 231.
[73] The inference of discrimination in this case hangs on the timing of the termination in relation to the information the Respondents had about Ms. Christensen’s medical condition. If the Respondents’ decision to terminate Ms. Christensen’s employment crystalized before they had information about her disability – in particular, that she required medical leave and had inquired about LTD benefits – this would undermine any inference that the termination was connected to the Ms. Christensen’s mental disability.
[74] For the following reasons, I find the Respondents decided to terminate Ms. Christensen’s employment on or about August 15, not July 29 as they submit. I further find that the temporal connection between the termination and the Respondents’ knowledge of Ms. Christensen’s mental health raises the inference that the two were connected. Given the inconsistencies in the Respondents’ evidence, I find their non-discriminatory explanation for the termination does not displace the inference of nexus.
2. Timing of decision to terminate
[75] It is undisputed that the Respondents received the first medical note on July 31, and that they became aware that Ms. Christensen had inquired about LTD benefits on August 6. It is also undisputed that Ms. Christensen sent the second medical note to the Respondents on August 18. There was some question at the hearing about the actual date of the termination; being whether it was before or after the Respondents received the second medical note. However, there is no dispute that the termination letter was dated August 15. Further, at the hearing the Respondents produced a Purolator Courier receipt which demonstrates that they couriered the termination letter to Ms. Christensen on August 15. I find that the actual date of termination was August 15.
[76] Mr. Miller and Ms. Makarenko both testified that their decision to terminate Ms. Christensen crystalized on July 29. They testified that on that date they had a conversation about terminating Ms. Christensen’s employment, and agreed to do so. They both further testified that Mr. Miller told Ms. Graham to prepare termination papers for his meeting with Ms. Christensen on August 1. I do not accept the Respondents’ evidence on this point. The documentary record does not support this version of events, and overall I found Mr. Miller and Ms. Makarenko lacked credibility in their testimony about the date they decided to terminate Ms. Christensen’s employment.
[77] For example, Mr. Miller’s and Ms. Makarenko’s evidence at the hearing conflicted with affidavit evidence they provided in support of their dismissal application. In their respective affidavits, Mr. Miller and Ms. Makarenko each swore that they fired Ms. Christensen because she was a poor performing employee, and because after she went on medical leave they discovered she had committed a series of what they described as “Wrongful Acts”. Both Mr. Miller and Ms. Makarenko swore that the Wrongful Acts were the “most important” factor in their decision to terminate her employment. It is difficult to reconcile this statement about what was most important to their decision to terminate, with their evidence that they made the decision on July 29, given the Respondents did not discover that alleged misconduct until after July 31 when Ms. Christensen went on leave.
[78] Further, Mr. Miller’s affidavit makes no mention of having decided to terminate Ms. Christensen’s employment on July 29. The only mention of July 29 in his affidavit is his statement that on July 29 he requested to meet with Ms. Christensen to discuss her job performance. When asked in cross-examination about the apparent conflict between his affidavit and his testimony that he decided conclusively to terminate Ms. Christensen’s employment on July 29, Mr. Miller stated that the Wrongful Acts he set out in his affidavit “solidified” his decision to terminate Ms. Christensen. In my view, it is inconsistent to say a decision became solidified if it had already been conclusively made.
[79] Unlike Mr. Miller’s affidavit, Ms. Makarenko’s affidavit (sworn later in time than Mr. Miller’s) does state that she and Mr. Miller decided together to terminate Ms. Christensen’s employment in or around July 2019, and that Mr. Miller advised her and Ms. Graham on July 29 that he was going to terminate Ms. Christensen’s employment. However, this statement conflicts with her later statement in the affidavit that the most important reason for the termination was the Wrongful Acts, which I’ve already noted, she says she discovered after July 31.
[80] Despite swearing in their affidavits that the Wrongful Acts were the most important reason for the termination, and despite leading significant evidence about the Wrongful Acts at the hearing, in their closing submissions the Respondents appear to have abandoned the argument that the Wrongful Acts influenced their decision to terminate Ms. Christensen’s employment. I come to this conclusion because in their closing submissions, the Respondents state unequivocally that they decided on July 29 to terminate Ms. Christensen’s employment, and it is clear from their evidence that they only discovered the Wrongful Acts after July 31. Further, their submissions set out four discrete reasons they say formed the entire basis for the decision to terminate on July 29, which reasons do not include the Wrongful Acts.
[81] Beyond not relying on the Wrongful Acts in support of their decision to terminate Ms. Christensen’s employment, the Respondents’ closing submissions set out that many of the listed Wrongful Acts were discovered after Ms. Christensen’s termination, not prior to it, as they alleged in their earlier affidavits.
[82] The shifting narrative about when the Respondents discovered the alleged Wrongful Acts, and whether and to what extent the Wrongful Acts impacted their decision to terminate Ms. Christensen’s employment, leads me to question the veracity of the Respondents’ evidence that they conclusively decided to terminate Ms. Christensen’s employment on July 29.
[83] In addition to the above, Mr. Miller’s emails to Ms. Christensen on and after July 29 appear to contemplate an ongoing employment relationship. For example, in his July 29 email to Ms. Christensen and Ms. Makarenko, he set out that he was investigating both of their actions in relation to the lieu time issue and that when it was concluded he would advise them how the lieu time issue would be managed “in the future”. Further, his email provides instruction to both Ms. Makarenko and Ms. Christensen that no further lieu time would be allowed to be accumulated or scheduled by either of them. He also reminds them that “I am the employer of both of you”.
[84] It is clear from Mr. Miller’s email that the Respondents’ concerns about Ms. Christensen’s lieu time accumulation were significant. This email had come on the heels of several back-and-forth emails between Ms. Makarenko and Ms. Christensen in which Ms. Makarenko had requested that Ms. Christensen come up with a schedule of days to use up her lieu time bank. She had also requested that Ms. Christensen “flex” her work schedule to accommodate tasks she had to perform after her usual work day so that she would not need to accumulate additional lieu time. She had also asked Ms. Christensen to come up with an on-call schedule for managers so that she would not be the only person coming in after hours. Based on the evidence, I have no doubt that the Respondents were genuinely concerned about Ms. Christensen’s accumulation of lieu time. However, Mr. Miller’s email clearly suggests that the parties would be in a relationship “in the future”, such that Mr. Miller could provide direction on how Ms. Christensen’s lieu time would be dealt with going forward. Further, later on in the email, Mr. Miller asks Ms. Christensen and Ms. Makarenko to answer two questions about their understanding of employment laws, and to provide him with their responses three days later, on August 1.
[85] In order to accept the Respondents’ evidence that as of July 29 they had decided conclusively to terminate Ms. Christensen’s employment, I would have to accept that Mr. Miller’s investigation into Ms. Christensen’s lieu time was a sham, and regardless of what he discovered, or what Ms. Christensen’s and Ms. Makarenko’s answers were to his specific questions, he was going to fire Ms. Christensen. He did not testify that it was a sham. Further, the language of the email and Mr. Miller’s requests therein do not support this. When asked in cross-examination about the email, and particularly, Ms. Makarenko’s involvement in allowing Ms. Christensen to accumulate lieu time hours, he replied “Who’s to blame, Penny for not listening? Ms. Makarenko for not doing it? I would say both parties”. I find this statement, along with the language in the email, which was addressed to both Ms. Christensen and Ms. Makarenko, indicates that as of July 29 Mr. Miller’s investigation was legitimate, and he intended to find out for himself what had been happening at Heaton Place with respect to the lieu time.
[86] In addition to the July 29 email, Mr. Miller’s August 1 email to Ms. Christensen in response to her July 31 medical note references the potential need to get further medical information from Ms. Christensen prior to her return to work. This email implies that as of August 1, Mr. Miller was contemplating an ongoing working relationship.
[87] In addition to the above conflicts in the documentary record, I found Mr. Miller’s testimony at the hearing to be generally inconsistent and evasive. This casts further doubt on his evidence that he decided to terminate Ms. Christensen’s employment on July 29.
[88] For example, when asked why he did not actually terminate Ms. Christensen on July 29 after deciding to do so, Mr. Miller initially testified it was because he was looking after his grandchildren and could not get to Armstrong. In cross-examination he conceded that he had been working in the office for a significant part of the day, but stated that he had a choice for when to terminate someone, and he felt a Friday (August 2) was better than a Monday (July 29) or other days of the week to carry out a termination. Later in cross-examination, his evidence changed again, when he stated he decided to wait two days from July 29 to carry out the termination in order to be able to correct any mistake he may have made. When pressed about whether such a mistake could have been a mistake in his decision-making about the termination, he became evasive. First he said no, it could have been about whether he needed “another piece of paper” to add to the termination package. Then he stated it could have been about “whether I needed further explanation”. He did not expand on what he might have needed further explanation about, but he testified that “nothing came up in the two days” other than Ms. Christensen going on sick leave.
[89] In addition to the above, throughout the hearing, Mr. Miller’s testimony was punctuated by disparaging, unsolicited comments about Ms. Christensen. He referred to her on at least one occasion as “that woman”, and frequently interjected derisive comments in response to serious questions about her performance issues. For example, when he was asked about a Christmas bazar that Ms. Christensen had put together for the residents at Heaton Place, he described it as the “famous” Christmas Bazar, and when asked about what it was, he replied that he was “still wondering”. On the whole, I found that Mr. Miller’s testimony displayed significant bitterness toward Ms. Christensen, and this bitterness influenced his testimony.
[90] Ms. Makarenko provided her testimony in a more straightforward manner than Mr. Miller, and she did not demonstrate the same animosity towards Ms. Christensen in her evidence. However, there is no documentary evidence to corroborate Ms. Makarenko’s oral evidence that she and Mr. Miller spoke to each other and decided, on July 29, to terminate Ms. Christensen’s employment. For example, the Respondents did not produce the termination papers Ms. Makarenko testified Ms. Graham was asked to draw up on July 29. Further, although the Respondents seek to rely on an affidavit Ms. Graham swore in support of the Respondents’ dismissal application, the affidavit was not entered into evidence at the hearing. If it had been, Ms. Christensen could have either requested that Ms. Graham attend the hearing to be cross-examined on her affidavit, or asked the Tribunal to draw an adverse inference against the Respondents in relation to her evidence. For these reasons, I have not considered Ms. Graham’s affidavit or the Respondents’ submissions about the affidavit evidence in my decision on this complaint.
[91] Ultimately I accept the Respondents’ evidence that they had concerns with Ms. Christensen’s work performance and accumulation of lieu time; however, the evidence does not support that they conclusively decided to terminate her employment on July 29.
[92] On balance, I find that the Respondents decided to terminate Ms. Christensen’s employment on or close to August 15, 2019. I make this finding because I have not accepted the Respondents’ evidence about when they decided to terminate Ms. Christensen, and am left with the evidence of the date they actually terminated her. Although the Respondents argued they had to delay the termination to seek legal advice about firing someone on medical leave, which suggests some date earlier than August 15 may have been the date they decided to terminate Ms. Christensen, I have no evidence about when the legal advice was provided. Therefore, the actual date of termination is the best evidence.
[93] I next move on to determine whether the evidence, including the timing of the decision to terminate, raises an inference that Ms. Christensen’s disability was at least a factor in the Respondents’ termination decision. I will also consider whether the Respondents’ evidence about Ms. Christensen’s performance issues and their scepticism about her mental disability rebuts any possible inference.
3. Inference of nexus
[94] It is material that the Respondents decided to terminate Ms. Christensen’s employment on or close to August 15. This was very close in time to when she went on medical leave and the Respondents learned she had been inquiring about LTD benefits. As I set out above, where a disabled employee is terminated shortly after going on medical leave, this may raise an inference that the employee’s disability was a factor in the termination. The Respondents say, however, that no such inference should be drawn, because they fired Ms. Christensen because of her poor performance, and because they did not know, and had no way of knowing, that she had a mental disability.
[95] For the following reasons, I find the timing of the termination, in light of the information the Respondents had at the time about Ms. Christensen’s mental health, medical leave, and inquiry about LTD benefits, gives rise to an inference that Ms. Christensen’s mental disability was at least a factor in the termination decision. Although I accept that the Respondents had legitimate concerns about Ms. Christensen’s performance and accumulation of lieu time that became more significant to them after July 29, those concerns do not displace the inference of nexus in this case. In other words, I find both that they had legitimate performance concerns and that Ms. Christensen’s disability was a factor in the decision to terminate.
[96] I first consider the evidence about Ms. Christensen’s performance issues. Then I consider what the Respondents knew about Ms. Christensen’s disability in light of the timing of the termination decision.
[97] The Respondents say they decided to terminate Ms. Christensen’s employment, based exclusively on the following four issues:
a. her failure to increase the occupancy of Heaton Place for the previous two years of her employment;
b. her unwillingness to follow suggestions from the Respondents to improve her performance and time management;
c. her refusal or unwillingness to delegate tasks properly to the administrative assistant or her other managers; and
d. her continued amassing of excessive and unnecessary lieu time.
[98] I have already found that the Respondents had not decided, as of July 29, to terminate Ms. Christensen’s employment. So then, I am left with the Respondents’ above-noted performance concerns, and a timeframe of July 29-August 15. The question that arises is what changed between July 29 and August 15 to make the Respondents conclusively decide to terminate Ms. Christensen’s employment? Ms. Christensen says it was that she went on medical leave and inquired about LTD benefits. She argues that the Respondents’ purported performance concerns were exaggerated to manufacture a basis for the termination that did not relate to her disability.
[99] I disagree with Ms. Christensen that the Respondents’ performance concerns were exaggerated to manufacture a basis for the termination. I find the concerns were legitimate, and some of the concerns became more significant for the Respondents after July 29.
[100] With respect to lieu time, I have already found that the Respondents were genuinely concerned with Ms. Christensen’s accumulation of lieu time, and were serious about their decision to investigate it and decide what to do about it going forward. Similarly, I accept that Ms. Makarenko and Mr. Miller were dissatisfied with Ms. Christensen based on their perception that she was not following Ms. Makarenko’s instructions about how to flex her schedule or delegate on-call work to other managers in order to avoid the accumulation of lieu time. As I have found above, these concerns had not, as of July 29, led the Respondents to conclusively decide to terminate Ms. Christensen’s employment. Nevertheless, alongside other performance concerns, it is clear that these concerns ultimately factored into their termination decision.
[101] Similarly, with respect to growing occupancy, Mr. Miller testified that Ms. Christensen had failed to grow the occupancy rate at Heaton Place, and that he and Ms. Makarenko had raised this issue with her in 2017 and 2018. Ms. Makarenko testified that when she and Mr. Miller raised the issue of occupancy with Ms. Christensen, she became extremely defensive and refused to listen. An email from Mr. Miller to Ms. Christensen on June 12, 2018, supports Mr. Miller’s testimony that he was concerned as early as 2018 about the occupancy rates at Heaton Place. In the email Mr. Miller states:
Given the number of people that visit and tour Heaton Place; and the actual commitments that result from those ours, the conversion rate is unacceptable. The fact that Heaton Place has lingered for well over a year does not speak well for the people that have the responsibility of filling the facility… Needless to say, I am expecting that there be a fuller commitment to filling our empty suites and my expectation is that there has to be a significant improvement in our occupancy between now and the end of September. Given the current promotion, l believe an admission rate of three residents per month is achievable. [Emphasis added]
[102] In cross-examination, when asked why he did not terminate Ms. Christensen in 2017 or 2018 when he became concerned about the occupancy rates, Mr. Miller testified he had wanted to part ways with her in 2018, but he did not do so because he wanted to give Ms. Makarenko one year to see if she could mentor Ms. Christensen and resolve these issues. Ms. Makarenko echoed this testimony. She said that her and Mr. Miller decided to allow Ms. Christensen one year to improve her performance with Ms. Makarenko’s guidance and support.
[103] While I agree that the evidence demonstrates that the Respondents were dissatisfied with Ms. Christensen’s performance in relation to growing occupancy, it is not clear to me to what extent this issue remained a concern in July 2019. The above email indicates Mr. Miller had given Ms. Christensen until the end of September 2018 to improve the occupancy rates, yet September came and went, and no follow up appears to have taken place with Ms. Christensen about the occupancy rates, either from Mr. Miller or Ms. Makarenko. Further, in the emails between Mr. Miller and Ms. Christensen leading up to the termination, Mr. Miller makes no mention of occupancy rates, despite setting out the various issues he was dissatisfied with at the time. Nevertheless, again, the evidence demonstrates that ultimately, Ms. Christensen’s failure to grow occupancy factored into their ultimate decision to terminate her employment.
[104] The Respondents do not specify what issues or evidence they are referring to with respect to their submission that Ms. Christensen refused to delegate tasks to her administrative assistant. They simply state the allegation as a basis for termination. From the evidence at the hearing, I extrapolate that the key issue the Respondents are referring to here is the extent of TE’s training. Indeed, this is one area where the evidence demonstrates performance concerns arose for the Respondents after July 29.
[105] Ms. Makarenko testified that Ms. Christensen should have trained TE to complete more tasks rather than doing them herself. For example, she testified that Ms. Christensen should have showed TE how to put the marketing intake forms together and send them to Head Office. Further, she said Ms. Christensen should have allowed Ms. Graham to train TE on payroll so that Ms. Christensen did not have to do it herself. Ms. Makarenko testified that when she asked Ms. Christensen to do these things she always got pushback, and she did not understand why.
[106] Ms. Christensen testified that she had 11 months to train TE, and during that time she was overworked and unable to train TE on all of the different aspects of her job. She testified that nevertheless, TE was trained on most things, and had been performing very well. Ms. Christensen testified that the only time Mr. Miller ever communicated with her about TE’s training was at the end of July, after Mr. Miller became upset when TE could not provide certain marketing materials Ms. Makarenko had asked for on July 30.
[107] In a July 31 email to Ms. Christensen, Mr. Miller advised that his investigation had identified a number of issues he was concerned about, including instructions from Head Office that had been ignored. By way of example, he said that TE had not been able to provide marketing materials to Ms. Makarenko. He expressed that he had become concerned about the extent of TE’s training, and that TE’s response in relation to Ms. Makarenko’s request was “unacceptable”. He went on to state that as TE had been working for Heaton Place for a year, she should know where to find the marketing materials, or know to ask Ms. Christensen where to find them. He then expressed his overall dissatisfaction with TE’s apparent lack of knowledge about the marketing aspects of her job.
[108] This email supports the Respondents’ position that they felt Ms. Christensen had not properly trained TE or delegated tasks to her. It is also evidence of performance concerns that arose after July 29. In my view, this is the most persuasive evidence supporting the Respondents’ position that they decided to terminate Ms. Christensen only for performance issues. By this point, on July 31, the Respondents were already concerned with Ms. Christensen’s accumulation of lieu time, her failure to follow Ms. Makarenko’s suggestions for how to limit her accumulation of lieu time, and her failure to grow the occupancy of Heaton Place. Further, Mr. Miller and Ms. Makarenko both testified that they were not happy with Ms. Christensen’s decision to take vacation days on August 1-2 rather than meeting to discuss their concerns with her performance and lieu time.
[109] Ms. Christensen provided significant evidence about her performance and why she says the Respondents were wrong to consider that she was underperforming. For example, she gave evidence about why she discontinued the bi-monthly marketing reports, and why TE was not trained on certain aspects of her job. Nevertheless, whether the Respondents were right or wrong, fair or unfair, in their assessment of her performance, the evidence demonstrates that they were not happy with Ms. Christensen’s performance in the above four areas they identified in their closing submissions as providing the sole basis for the termination.
[110] The question that arises then, in the face of the evidence of the Respondents’ legitimate and significant performance concerns, is whether Ms. Christensen’s health issues also played a role in Respondents’ decision to terminate her employment.
[111] On this point, the Respondents argue that prior to her termination, Ms. Christensen never indicated to any of the Respondents that she suffered from a mental disability or that she needed any form of accommodation. They further say that there was nothing in the course of her employment that would have caused them to make any inquiries into whether she was suffering from a mental health concern. The Respondents point to Ms. Christensen’s sick time record and argue that it gave them no reason to suspect she may have mental health issues. The Respondents provided evidence at the hearing showing that Ms. Christensen took only one sick day in 2018, and 1.5 sick days in 2019. They say Ms. Christensen’s lack of sick time “would not raise any suspicions of any illnesses, let alone a mental disability ”.
[112] The problem with this argument is that as of August 15, Ms. Christensen was on an extended sick leave which had started on July 31. This ought reasonably to have indicated to the Respondents that Ms. Christensen might have been experiencing a non-trivial illness or affliction. In his August 1 email to Ms. Christensen (copied to Ms. Makarenko), Mr. Miller acknowledged receipt of the July 31 medical note and advised Ms. Christensen that the Respondents might require “additional medical assessments by corporate health advisors” prior to her return to work, and advised her not to attend Heaton Place until he had a chance to review additional medical information from her or her doctor. When asked about the language he used in this email, and whether it suggested he considered Ms. Christensen’s ailment to be more than trivial, Mr. Miller stated it was a standard type of email. However, he acknowledged that he composed the email himself and reviewed it before he sent it out.
[113] Ms. Makarenko and Mr. Miller also both acknowledged that as of August 6, they were aware that Ms. Christensen had reached out to the benefits administrator to inquire about LTD benefits, and that the benefits administrator had provided her with an application package. When Mr. Miller was asked whether Ms. Christensen’s inquiry about LTD benefits triggered any concern that she may have been experiencing a significant health issue, he replied, no, and that it was not his business to inquire about her health. I find his answer to this question unlikely. His own email in response to Ms. Christensen’s sick note implied he was aware she may have been experiencing a serious medical issue and that he may have to inquire further about her health prior to her return to work. Further, he testified at the hearing that he understood that LTD benefits were for more serious issues which required over a hundred days of leave to trigger.
[114] Like Mr. Miller, Ms. Makarenko testified that she had no knowledge of any mental disability that Ms. Christensen might have, as she could not have read Ms. Christensen’s mind, nor the mind of her various doctors.
[115] Ultimately, Mr. Miller and Ms. Makarenko both testified that they did not believe Ms. Christensen was actually sick when she went on leave on July 31; rather, they believed she had manufactured her medical leave to avoid being terminated. I observe, first, that an employer who terminates employment because they think an employee is fabricating an illness runs the risk of violating the Code if it turns out that the employee does, in fact, have a disability. In this case, however, I understand the Respondents to argue that Ms. Christensen’s leave played no role in the termination decision because they were not concerned that she had a disability. In other words, when deciding to terminate, they set aside the fact of the leave and inquiry into LTD and focused only on performance concerns.
[116] For the following reasons, I find that the Respondents may have harboured some scepticism about whether Ms. Christensen was sick but that her disability-related leave and LTD inquiry was at least a factor in the decision to terminate. In short, the inference of discrimination is strong and is not rebutted by the Respondents’ evidence about their beliefs about Ms. Christensen’s health. The Respondents had sufficient information to understand that Ms. Christensen’s leave was supported by her doctor and might be lengthy.
[117] In support of their argument that Ms. Christensen’s disability was not a factor in the decision to terminate, the Respondents point to an affidavit sworn by JP, the night attendant at Heaton Place at the time of Ms. Christensen’s employment. JP’s affidavit was sworn in support of the Respondents’ dismissal application, and entered into evidence at the hearing. However, the Respondents did not call JP as a witness at the hearing. The material evidence in JP’s affidavit has to do with Ms. Christensen’s attendance at the Anchor Inn on July 31. Essentially, JP swore in her affidavit that Ms. Christensen told her that she was purposely going on “stress leave” so that she could attend the music festival with her husband, as she did not believe the Respondents were going to grant her leave to do so. JP also swore that Ms. Christensen stated she thought she was going to be fired.
[118] At the hearing, Ms. Christensen adamantly denied making any such statements to JP, and said she did not have the kind of relationship with JP where she would speak to JP about personal matters. Further, she testified (and the documentary record demonstrates) that she had already been given her vacation days to attend the music festival as of July 30, so she would have had no reason to go on “stress leave” in order to get the days off.
[119] As JP was not called as a witness, her evidence could not be tested under cross-examination. Further, her evidence conflicts with the documentary evidence which demonstrates that Ms. Christensen had already been granted vacation leave. Therefore, I prefer Ms. Christensen’s evidence about her conversation with JP.
[120] Beyond the evidence in JP’s affidavit, I find the Respondents’ position that they were sceptical about the veracity of Ms. Christensen’s medical leave does not entirely accord with other information they had, before July 31, about Ms. Christensen’s declining mental health.
[121] For example, Ms. Christensen testified that she repeatedly told Ms. Makarenko that she was burned out and struggling with being overwhelmed at work. She said she asked Ms. Makarenko on multiple occasions to hire additional staff to help her manage her workload. She further testified that she advised Ms. Makarenko that she was seeing a mental health professional to help her with her mental issues.
[122] At the hearing, Ms. Makarenko denied that Ms. Christensen spoke to her about any mental health issues, including burnout, and she denied any knowledge about Ms. Christensen seeing a mental health professional.
[123] The parties’ evidence conflicts in relation to what the Respondents knew about Ms. Christensen’s mental health leading up to the termination. Below I explain why I prefer Ms. Christensen’s evidence over Ms. Makarenko’s.
[124] The Respondents argue that Ms. Christensen’s evidence about what she told Ms. Makarenko about her mental health issues lacks credibility. In particular, they argue that Ms. Christensen’s testimony at the hearing conflicted with the affidavit she filed in response to the Respondents’ dismissal application. In her affidavit, Ms. Christensen says that she started seeing a psychologist in Kelowna. The Respondents argue this is untrue and inconsistent with her testimony at the hearing that she only ever saw a social worker therapist. When asked whether she was being purposely misleading when she referred to Ms. Neufeld as a psychologist, Ms. Christensen said no, and testified that she believed Ms. Neufeld was a psychologist when she began seeing her. She further testified that it was only several weeks prior to the hearing, when counsel for the Respondents advised otherwise, that she learned Ms. Neufeld’s proper title was “social worker therapist”.
[125] I find Ms. Christensen’s answer to the question about Ms. Neufeld’s proper title was forthright, and properly acknowledged where she had made a mistake. I am not persuaded that Ms. Christensen purposely lied about Ms. Neufeld’s qualifications and/or profession. Further, it is not material whether Ms. Neufeld was a psychologist or social worker therapist for the purposes of this complaint. What is important here is that Ms. Christensen’s affidavit and oral testimony at the hearing was that she began seeing a mental health professional to deal with her stress and anxiety, and that she advised the Respondents that she had done so. Ms. Makarenko denies being told Ms. Christensen was seeing any mental health professional, and Ms. Neufeld’s actual profession is immaterial to the conflict in the evidence on this issue.
[126] The Respondents also say Ms. Christensen’s evidence lacks credibility because her affidavit states she began seeing Ms. Neufeld in 2019 after the death of one of her favourite residents, whereas her oral testimony was that she began seeing Ms. Neufeld in 2017. I disagree. Paragraphs 17 and 26 of Ms. Christensen’s affidavit refer to her seeing a “psychologist” (who I understand to be Ms. Neufeld) in April of 2019 after a resident death. The affidavit does not specify that she only saw Ms. Neufeld from that time, but rather it appears to be specifying when she told Ms. Makarenko about seeing Ms. Neufeld. Ms. Christensen’s evidence at the hearing was specific and consistent in direct and cross examination, that she began seeing Ms. Neufeld in 2017.
[127] Overall, I find that Ms. Christensen’s testimony was direct, consistent, and aligned with the documentary record. In contrast, I found Ms. Makarenko’s evidence about her knowledge of Ms. Christensen’s mental health issues was sometimes evasive, and did not align with the documentary record.
[128] For example, the July 26, 2019, email from Ms. Christensen to Ms. Makarenko states “[y]ou had told me before you left for the UK that we needed to have my lieu / banked time taken and I agreed as I discussed with you I was getting burned out with all the hours I was putting in” [emphasis added]. When presented with this email Ms. Makarenko maintained her earlier testimony that she did not recall ever speaking to Ms. Christensen about Ms. Christensen being burned out. She did not provide an explanation about Ms. Christensen’s reference in the email to having told Ms. Makarenko about being burned out.
[129] Further, Ms. Makarenko was reluctant to directly answer questions in cross-examination about whether she felt that Ms. Christensen’s health could be impacted by the number of hours she had been working. When presented with an email she wrote to Ms. Christensen on January 2, 2018, in which she stated, “it’s best that as a manager you don’t overtax yourself by working such long days/weeks for scheduled programming/tours, thus a chance of illness/stress/fatigue can ensue”, Ms. Makarenko repeated that she did not understand how Ms. Christensen was required to work so many extra hours. She did not acknowledge that she had indicated in the email that by working long hours Ms. Christensen might experience illness, stress, or fatigue. Instead, she made some general comments about her duty as an employer to make sure her employees have sufficient rest periods between shifts.
[130] Finally, Ms. Makarenko refused to acknowledge that she was aware Ms. Christensen might be experiencing some health issues, even after she acknowledged receiving at least one doctor’s note from Ms. Christensen on July 31. I find this answer to be self-serving in the circumstances.
[131] On balance, I accept that Ms. Christensen spoke to Ms. Makarenko on several occasions about being burned out and overwhelmed at work, and asked Ms. Makarenko to hire additional staff to help her. I further accept that Ms. Christensen advised Ms. Makarenko that she had been seeing a mental health professional to deal with her stress.
[132] In addition to her awareness that Ms. Christensen was feeling burned out and seeing a mental health professional, Ms. Makarenko acknowledged in her testimony that she was aware that Ms. Christensen had been working a significant number of hours over her regular schedule. She was further aware that Ms. Christensen had been negatively impacted by the death of at least one of the residents at Heaton Place. This was evidenced by the March 27, 2019, email in which she acknowledges that it had been a “difficult situation and week” for Ms. Christensen specifically, and that Ms. Christensen needed to “recharge your mental and physical well-being”.
[133] Given the above information, I do not accept the Respondents’ evidence that as of July 31, when Ms. Christensen went on medical leave, they had no reason to believe that Ms. Christensen could be experiencing mental health issues. The Respondents knew that Ms. Christensen was feeling burned out at work, had been negatively impacted by a resident death, and had been seeing a mental health professional for support, well before the time they say Ms. Christensen became aware that she might be terminated. While the Respondents may have harboured some scepticism in light of the timing of their investigating performance issues and Ms. Christensen’s leave, I do not accept that they had no reason to understand that Ms. Christensen was in fact experiencing mental health issues.
[134] More significantly, however, following July 31 and before the decision to terminate, the Respondents became aware that Ms. Christensen’s doctor did recommend a medical leave, and that she had inquired about LTD benefits and had been provided with an application package. I find that the inference that Ms. Christensen’s disability-related leave and LTD inquiry was at least a factor in the decision to terminate so soon after is strong, and is not rebutted by the Respondents’ performance concerns or evidence about what they believed about Ms. Christensen’s health.
[135] In addition, Mr. Miller gave evidence that on August 14, Mr. Enoch, Heaton Place’s Maintenance Manager, approached him and asked him if he was going to terminate Ms. Christensen’s employment. Mr. Miller testified that in this conversation Mr. Enoch told him that Ms. Christensen had serious kidney issues. When asked whether after hearing about the kidney issues he became concerned that Ms. Christensen might be experiencing any serious health issue, he said no. When asked why not, he said “Dave’s no medical expert…why would I rely on what he told me about her health”? Again, I find Mr. Miller’s answer to be unlikely given the information he had before him at the time.
[136] Ultimately, I find that by August 15, the Respondents had sufficient information to know, at the least, that Ms. Christensen may have been experiencing a legitimate mental disability at the time of termination. I do not accept the Respondents’ explanation that they never even considered Ms. Christensen could be ill because they believed her to be faking illness to avoid termination. Nor do I accept that for this reason they removed the disability-related leave and LTD inquiry from the equation when making the termination decision.
[137] In conclusion, Ms. Christensen’s disability need not be the only, or overriding, factor in the Respondent’s decision to terminate her employment. I accept that the Respondents had timely, legitimate, and significant concerns about Ms. Christensen’s performance and accumulation of lieu time, and I accept that those concerns factored into the termination decision. Nevertheless, I find those concerns do not displace the inference that Ms. Christensen’s disability also factored into the termination decision. On balance, I find the timing of the termination, in light of the information the Respondents had at the time about Ms. Christensen’s mental health, medical leave, and inquiry about LTD benefits, gives rise to a reasonable inference that Ms. Christensen’s mental disability was at least a factor in the termination decision. As such, I find that Ms. Christensen has proved her discrimination complaint.
[138] The Respondents did not put forward a justification defense. Therefore, I move on to consider remedy.
V REMEDY
[139] Ms. Christensen has proved her discrimination complaint. I declare the Respondents discriminated against Ms. Christensen contrary to the Code: Code, s. 37(2)(b). I further order the Respondents to cease the contravention and refrain from committing the same or a similar contravention: Code, s. 37(2)(a).
[140] Ms. Christensen seeks additional remedies, and I consider each in turn.
A. Lost wages
[141] Section 37(2)(d)(ii) of the Code gives the Tribunal the discretion to order a party who has contravened the Code to “compensate the person discriminated against for all, or a part the member or panel determines, of any wages or salary lost, or expenses incurred, by the contravention”. The purpose of compensation under s. 37(2)(d)(ii) is to restore a person, to the extent possible, to the position they would have been in had the discrimination not occurred: Gichuru v. The Law Society of British Columbia (No. 9), 2011 BCHRT 185 at para. 300 [Gichuru]; upheld in Gichuru v. The Law Society of British Columbia, 2014 BCCA 396 [Gichuru BCCA]. The burden of establishing an entitlement to compensation is on the complainant: Gichuru at para. 301. To do so, the complainant must show some causal connection between the discriminatory act and the loss claimed: Gichuru at para. 302.
[142] Ms. Christensen seeks an order under s. 37(2)(d)(ii) that the Respondents compensate her for lost wages from the last date of employment (August 15, 2019) to the date of commencement of the hearing (November 20, 2023), less five weeks pay in lieu of notice and self-employment mitigation income she earned while operating an Airbnb on her property. Ms. Christensen says this amounts to $199,787.84 in lost wages.
[143] For the following reasons, I decline to order compensation for lost wages in the amount Ms. Christensen seeks. Instead, I order the Respondents to pay Ms. Christensen $7,884.63 as wages lost as a result of the discrimination.
[144] As I explain below, although Ms. Christensen has proved the termination of her employment was discriminatory, I find she would not likely have been employed by the Respondents for longer than one month following the termination in any event. Given the Respondents provided Ms. Christensen with five weeks of pay in lieu of notice, I find she is not entitled to any further wage loss award with respect to her employment with them.
[145] To the extent that Ms. Christensen says that the Respondents’ discriminatory conduct caused her to be unable to work in any capacity for any employer since the termination, I find that the Respondents’ conduct caused further wage loss but that an order for wages lost for a period of three months will compensate Ms. Christensen for her loss flowing from the discrimination.
1. Length of future employment with Respondents
[146] Ms. Christensen has proved her termination was discriminatory. Therefore, she has proved a causal link between her termination and wages she lost from her employment with the Respondents. However, given my findings in this decision that both parties had significant concerns with the employment relationship leading up to the termination, I find the employment relationship would have ended sooner rather than later, regardless of the discriminatory termination.
[147] As I have set out above, I am satisfied that the Respondents’ concerns with Ms. Christensen’s work performance and accumulation of lieu time were legitimate, significant, and factored into their decision to terminate her employment in August 2019. I cannot assess with certainty what would have happened but for the discriminatory termination, but the evidence does not support that Ms. Christensen would have continued working for the Respondents for the four plus years for which she is claiming lost wages. On the whole of the evidence, including the evidence that the Respondents discovered at least some Wrongful Acts soon after Ms. Christensen’s termination, I find it likely that Ms. Christensen would have stopped working for the Respondents within one month of the actual date of the termination.
[148] Given that the Respondents compensated Ms. Christensen with five weeks of pay in lieu of notice, I find Ms. Christensen has already been paid wages for the period of time that she likely would have continued to work for the Respondents. As such, I find she is not entitled to any lost wages as a result of her termination from the Respondents’ employ.
[149] However that does not end the inquiry. Ms. Christensen argues that she has been unable to work in any capacity for any employer (not just the Respondents) since the termination, and the Respondents should compensate her for lost wages up to the date of the hearing. As I explain below, Ms. Christensen has not proved that the discriminatory termination resulted in an ongoing inability to work for a period of 4.5 years. However, I am satisfied that she has proved the termination was causally connected to her inability to work for at least a period of time following termination.
2. Causal link between discriminatory termination and ongoing inability to work
[150] Ms. Christensen testified that from the date of the termination to the date of the hearing she has been unable to work in any meaningful capacity. She testified that following the termination, she was devastated, shocked, and hysterical, and that she became fearful of going for interviews and was embarrassed to go out in public. She testified that she applied for one job at an insurance company in Armstrong, but that she was unable to go through with the interview. She said she spoke to her family doctor about finding new work, and her doctor advised her it would be a good time for her to rest. The only work Ms. Christensen says she was able to undertake between the date of the termination and the beginning of the hearing was the development and operation of an Airbnb, which she ran on her property from fall 2020 to July 2021. Ultimately, Ms. Christensen says she continues to experience disabling depression and anxiety and is unable to work.
[151] I understand from the above, that Ms. Christensen is arguing that the Respondents’ discriminatory termination exacerbated her disability, and caused her inability to work for any employer in any meaningful capacity for the past 4.5 years. In my view, Ms. Christensen has not adduced sufficient evidence to demonstrate she has been unable to work because of the Respondents’ discriminatory conduct for a period of approximately 4.5 years.
[152] First, all of the supporting medical documentation in evidence relates to the period of time leading up to and shortly following the termination. Beyond testifying about her need for daily medications to control her ongoing depression and anxiety, Ms. Christensen’s testimony about the nature of her disability post-termination was essentially that her doctor advised her to take some time to rest after the termination, she had ongoing anxiety about applying for jobs, and that the termination was embarrassing and devastating for her. While I accept all of her evidence on these points, more evidence than that is required to demonstrate that the termination caused a complete medical inability to work in any meaningful capacity for 4.5 years from the date of the termination.
[153] Further, Ms. Christensen’s evidence about her Airbnb undermines her claim that she was medically unable to work in any meaningful capacity since the termination. Ms. Christensen’s ability to build and operate an Airbnb on her property from fall 2020 to spring 2021, indicates that at least as of fall 2020, Ms. Christensen was able to work in some capacity following the termination. Her evidence was that the reason she stopped operating the Airbnb was that she sold her property. There is no indication that she was unable to operate the Airbnb because of her medical inability to work.
[154] While I accept Ms. Christensen’s evidence that the termination was devastating for her and that she was extremely upset after finding out she had lost her job, Ms. Christensen has not explained how those feelings led to her inability to work in any capacity following the termination up to the date of hearing. At most, her evidence demonstrates that the discriminatory termination worsened her mental disability that had already (as of July, 31 2019) resulted in her medical inability to work for at least some period of time.
[155] That said, and as I have found above, the documentary evidence demonstrates that before Ms. Christensen discovered her employment had been terminated, her doctor had determined she was medically unable to work for several weeks. The second doctor’s note, which Ms. Christensen received before she found out about the termination, indicates Ms. Christensen was medically unfit to work until at least September 15, 2019, at which point she would be reassessed. It is clear from the medical evidence that Ms. Christensen’s disability was serious at the time of the termination. However it is not clear from the medical evidence what impact the termination had on her disability. This is important, because Ms. Christensen is required to demonstrate that the discriminatory act, in this case the termination, was causally linked to her inability to work on an ongoing basis. It is not sufficient that Ms. Christensen demonstrate that her disability, which she had before the discriminatory termination, is the reason she remains unable to work.
[156] For clarity, my finding in this decision is that the termination was discriminatory. While Ms. Christensen says workplace stress caused her to develop a disability, the only discriminatory conduct was the termination. Only loss flowing from the discrimination is compensable.
[157] Ultimately, I accept Ms. Christensen’s evidence that the manner of the termination exacerbated her mental disability for a period of time such that she was unable to work. The Respondents terminated her employment at a time when she was vulnerable, having just commenced a medical leave because of a mental disability. On the limited medical information I have, I find it more likely than not that the discriminatory termination exacerbated Ms. Christensen’s inability to work for some time. I find that an order that compensates Ms. Chrestensen for loss in the three months following the termination appropriately compensates for this loss. This takes into account the contingency that Ms. Christensen may have been unable to work after September 15, 2019 in any event. It also takes into account that although Ms. Christensen’s evidence was that she continues to experience disabling anxiety and depression, she has not adduced sufficient evidence to demonstrate that the discriminatory termination impacted her ability to work in any capacity for any significant period of time. Therefore, whether or not she remains unable to work due to her disability, I find she has not proved the Respondents’ conduct caused this ongoing inability to work.
[158] Ms. Christensen was compensated with five weeks pay in lieu of notice when she was terminated. There were 13 weeks and one day in the three-month period between August 15, 2019, and November 15, 2019. Therefore, I find Ms. Christensen is entitled to eight weeks and one day of pay as wages lost as a result of the discrimination. I accept that Ms. Christensen’s annual income at the time of termination was $50,000 (gross). Broken down into 52 weeks, Ms. Christensen’s weekly income was $961.54 (gross). Broken down into five days, Ms. Christensen’s daily pay was $192.31. Therefore, eight weeks and one day of pay amounts to the following: $961.54 x 8 = $7,692.32 +192.31 = $7,884.63. In addition to this amount, I order the Respondents to pay an amount, to be calculated and agreed upon by the parties, to offset any additional taxes that may be payable as a result of Ms. Christensen receiving the lump sum payment in this tax year (tax gross-up).
B. Injury to dignity, feelings and self-respect
[159] Section 37(2)(d)(iii) of the Code gives the Tribunal the discretion to order a party who has contravened the Code to compensate a person discriminated against for harm to their “dignity, feelings and self respect or to any of them”. The purpose of an award for injury to dignity is to compensate the person who experienced discrimination, not to punish a respondent: Silver Campsites Ltd. v. James, 2013 BCCA 292 at para. 41. To determine the appropriate amount in a given case, the Tribunal will consider two things: how the discrimination affected the complainant, including the nature of the discrimination, and the complainant’s social context and vulnerability; and how much money the Tribunal has ordered in similar cases.
[160] Ms. Christensen argues that the Respondents should compensate her in the range of $20,000-$30,000 for injury to her dignity, feelings, and self respect, citing the following authorities in support: Haftbaradaran v. Saturna Beach Estates (No. 2), 2017 BCHRT 271; Toivanen v. Electronic Arts (Canada) (No. 2), 2006 BCHRT 396; and Singh v. A&M Enterprise, 2023 BCHRT 148. As I have set out already, her evidence was that following the termination she was devastated, shocked, and hysterical, and became fearful of going for interviews and was embarrassed to go out in public. Ms. Christensen does not make any submissions explaining how her case is similar to any of the cases she has cited.
[161] The Respondents say that an award for injury to dignity in this case would be “non-sensical”. They say that aside from providing evidence of embarrassment from applying for one job since she was terminated, Ms. Christensen has elicited no evidence to support that she is unable to work in any capacity. The Respondents argue there should be no award under this head of damages because they “were never aware of any mental disability in which to discriminate against [Ms. Christensen]”. The Respondents do not respond to the cases Ms. Christensen cites in support of her argument about injury to dignity damages, nor do they cite any cases of their own.
[162] In Haftbaradaran, the Tribunal awarded the complainant $15,000, for injury to his dignity, feelings, and self respect. The Tribunal considered the relatively short duration of his employment, being four years, and the fact that his job was important to him. The Tribunal also considered that he had not provided “medical confirmation” that the termination dramatically affected his mental state, as it was already affected by his pre-existing disability. Nevertheless, the Tribunal found that the callous way that the employer terminated the complainant, by email and while he was on medical leave, demonstrated a disregard for the impact of the termination on the complainant, and that warranted a higher award.
[163] In Toivanen,the Tribunal awarded the complainant $20,000 under s. 37(2)(d)(iii) on the basis that the complainant’s “career was her life”, and she gave a lot to her job, including sometimes working seven days a week for long hours every day. The Tribunal further found that after she was terminated at 47 yrs old, she had to move from her West End apartment in Vancouver, into a seniors complex with her parents in Alberta as she was unable to cope on her own. Importantly in this case, the complainant introduced a medical report in which a doctor described that the termination had a “devastating” effect on the complainant. Further, the insurer in that case found that the complainant was disabled from any occupation following the termination.
[164] In Singh, the Tribunal found Mr. Singh was a relatively short-term employee, and he was somewhat vulnerable at the time of termination as he was just returning from a medical leave and was still in some pain. In coming to its award, the Tribunal focussed on the seriousness of termination of employment in the context of the nature of the discrimination. The Tribunal observed that termination of employment often attracts the top end of the Tribunal’s awards, and emphasised the connection between a complainant’s employment and their dignity. Ultimately, although the Tribunal found the manner of the termination was not necessarily callous (as in Haftbaradaran), and it did not have the same evidence about the devastating impact of the termination as was the case in Toivanen, the Tribunal held that $15,000 was an appropriate award.
[165] In the present case, the nature of the discrimination was that Ms. Christensen was terminated from her employment, at least in part, because she had a mental disability. While it is true that the Respondents had identified several significant performance concerns, it is also true that they terminated her employment while she was medically unfit to work, and after she had inquired about her entitlement to disability benefits. The evidence showed Ms. Christensen had held her job as Facility Manager at Heaton Place for five years, and that she was passionate about her job and the residents that she helped care for. Ms. Christensen testified that when she was terminated she felt like she was “tossed aside like a piece of garbage when I wasn’t feeling well”. I find the termination in these circumstances was callous, and the Respondents disregarded any impact of the termination on Ms. Christensen at a time when she was vulnerable. I accept Ms. Christensen’s evidence that she was not expecting to be fired, and that she was ultimately devastated by the termination.
[166] With respect to the above cases relied on by Ms. Christensen, I acknowledge that ranges established by previous cases play a more diminished role in the Tribunal’s determination awards for injury to dignity, and that the Tribunal should not be so bound by past damage awards that it cannot adequately compensate a complainant for the actual injury to their dignity: British Columbia v. Kelly, 2016 BCCA 271 at para. 60. However, I find the above decisions are useful in that they consider similar issues with respect to remedy, such as lack of supporting medical documentation, and how callousness in termination can attract a higher award.
[167] I agree with the Tribunal in Singh, that employment is highly significant to a person’s sense of dignity and self-respect. In this case, I find Ms. Christensen’s dignity and self-respect were deeply negatively affected by the termination. I do not have the same medical evidence of the impact of the termination as was present in Toivanen, but I do find the termination was callous, as was the case in Haftbaradaran.
[168] For the above reasons, on balance, I am satisfied that an award of $15,000 is appropriate to compensate Ms. Christensen for injury to her dignity, feelings, and self-respect in this case.
VI APPLICATION FOR COSTS
[169] In their closing submissions, the Respondents apply under s. 37(4) of the Code for an order awarding them costs against Ms. Christensen for improper conduct. Below I explain why I deny the application.
[170] The Tribunal may award costs against a party to a complaint who has engaged in improper conduct during the course of the complaint: Code, s. 37(4). The purpose of a costs award is punitive: Terpsma v. Rimex Supply (No. 3), 2013 BCHRT 3, at para. 102. It aims to deter conduct that has a significant and detrimental impact on the integrity of the Tribunal’s process: Oger v. Whatcott (No. 7), 2019 BCHRT 58 at para. 246.
[171] The Respondents submit that Ms. Christensen engaged in improper conduct in a number of ways, including:
a. by making very serious allegations against the Respondents and its principals “personally”, and requiring them to retain legal counsel to defend their reputations over the course of five years;
b. by requiring the Respondents to attend ten days of hearing, which was double what was originally set aside for the hearing;
c. by failing to disclose her medical records in advance of the hearing;
d. by failing to amend her complaint to remove an allegation that the Respondents had terminated her LTD benefits;
e. by making allegations that amounted to nothing more than speculation and conjecture;
f. by pursuing a complaint with no reasonable prospect of success; and
g. by making a human rights complaint for a disingenuous reason.
[172] It is not improper conduct to file or pursue a human right complaint in good faith: Dyson v. University of Victoria, 2009 BCHRT 209. There is no evidence of bad faith on Ms. Christensen’s part in bringing this complaint, and in fact, the Tribunal has found the complaint to be justified. Further, it is clearly not improper to name individual respondents in a human rights complaint. In this case, both Mr. Miller and Ms. Makarenko were people Ms. Christensen reported to, and both were responsible for the termination.
[173] With respect to disclosure of Ms. Christensen’s medical documents, I have dealt with that issue earlier in this decision. Here, suffice it to say that complainants who do not disclose their medical records do so at their own peril. It is a complainant’s burden to demonstrate they have a protected characteristic, and where a physical or mental disability is claimed, they may ultimately be unable to do so without supporting medical documentation. In any event, while litigants have an obligation to disclose arguably relevant documents, failure to do so does not necessarily rise to the level where an award of costs would be appropriate.
[174] The Respondents have cited a number of cases in support of their submission about how failing to disclose documents may support an order for costs. I do not find those cases persuasive, as they do not reflect the circumstances in this case. For example, in Ghinis v. Corwn Packaging Ltd (No.2), 2002 BCHRT 36, the Respondent had applied for disclosure of documents and particulars and the Tribunal had granted its application and ordered disclosure. It was the complainant’s repeated failure to comply with this order that grounded the award of costs in relation to disclosure. Similarly, in A and B obo Infant A v. School District C (No. 2), 2017 BCHRT 193, the order of costs was as a result of the complainant failing to comply with an order for disclosure made by the Tribunal. In the present case, the Respondents never applied for disclosure of Ms. Christensen’s medical documents, and the Tribunal never made an order for disclosure. This is not a case where Ms. Christensen acted improperly by failing to comply with a Tribunal direction or order.
[175] In addition to the above, I am troubled by the Respondents’ claim that the hearing was extended to ten days after originally being scheduled for five days. A large portion of one day of hearing was spent dealing with a request by counsel for the Respondents to use discovery transcripts from a civil proceeding before the BC Supreme Court which had not been disclosed to counsel for Ms. Christensen in advance, and which he had not obtained consent or a court order to use. In order to decide the admissibility of these documents, the Tribunal stood the hearing down and allowed the parties to make submissions. Upon review of the applicable legal principles, it became clear that the Respondents had no legal basis to seek to use the discovery transcripts without consent or a court order, and this was well-settled law. In addition, later, the hearing became protracted due, at least in part, to evasive answers from the Respondents’ witnesses on cross-examination. Ultimately, I find it was not Ms. Christensen’s conduct which required the hearing to extend past the five days originally scheduled by the Tribunal.
[176] Finally, with respect to the Respondents’ argument that Ms. Christensen failed to amend her complaint to remove an allegation about LTD benefits, this was not an issue which was pursued or addressed at the hearing. Further, it is not the type of conduct that would typically ground an order for costs.
[177] For the above reasons, I deny the Respondents’ application for costs.
VII CONCLUSION
[178] I have found Ms. Christensen’s discrimination complaint is justified, and I order the following remedies:
a. I declare the Respondents discriminated against Ms. Christensen contrary to the Code, and I order the Respondents to cease the contravention and refrain from committing the same or a similar contravention: Code, s. 37(2)(a) and (b).
b. I order the Respondents to pay Ms. Christensen $7,884.63 (gross) plus an amount, to be calculated and agreed upon by the parties, to offset any additional income tax payable as a result of this order (tax gross-up), as compensation for wages or salary lost as a result of the contravention: Code, s. 37(2)(d)(ii).
c. I order the Respondents to pay Ms. Christensen $15,000 as compensation for injury to her dignity, feelings, and self-respect: Code, s. 37(2)(d)(iii).
d. I order the Respondents to pay Ms. Christensen pre-judgement interest on the amount I have ordered for lost wages under s. 37(2)(d)(ii), based on the rates set out in the Court Order Interest Act.
e. I order the Respondents to pay Ms. Christensen post-judgment interest on the amount I have ordered for lost wages under s. 37(2)(d)(ii), and on the amount I have ordered for injury to dignity under s. 37(2)(d)(iii), from the date of this decision until paid in full, based on the rates set out in the Court Order Interest Act.
[179] I dismiss the Respondents’ application for costs.
Shannon Beckett
Tribunal Member