Gbedze v. Hilton Vancouver Metrotown (No. 2), 2025 BCHRT 225
Date Issued: September 11, 2025
File: CS-000449
Indexed as: Gbedze v. Hilton Vancouver Metrotown (No. 2), 2025 BCHRT 225
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:
Mawunyo Komla Honoré Gbedze
COMPLAINANT
AND:
Hilton Vancouver Metrotown
RESPONDENT
REASONS FOR DECISION
Tribunal Member: Theressa Etmanski
On their own behalf: Mawunyo Komla Honoré Gbedze
Counsel for the Respondent: Paul D. Mclean
Dates of Hearing: March 3, 4, 5, 2025
Location of Hearing: Virtual
I INTRODUCTION
[1] Mr. Gbedze filed a complaint against Hilton Vancouver Metrotown alleging discrimination in employment contrary to s. 13 of the Human Rights Code. He alleges that following medical leave for a knee injury, Hilton refused to allow him to return to work. Hilton denies discriminating and says that Mr. Gbedze was not medically cleared to work in any capacity.
[2] This complaint is about an employer’s duty to accommodate an employee’s return to work after sustaining a permanent injury which prevents them from performing their previous duties. It is also about an employee’s obligations to participate in the accommodation process, and at what point their own conduct may frustrate the employer’s reasonable efforts.
[3] I have reviewed and considered all the evidence admitted at the hearing, which includes witness testimony and documents. After the hearing the parties provided closing submissions in writing. In this decision, I recount only the evidence and arguments required to explain my decision.
[4] For the following reasons, I find the complaint is justified. I find that Hilton discriminated against Mr. Gbedze by failing to accommodate his physical disability. I order remedies to compensate Mr. Gbedze for lost wages, and injury to dignity, feelings and self-respect.
II Witness credibility
[5] I heard from nine witnesses in this hearing; six for the complainant, and three for the respondent.
[6] To assess the accuracy or trustworthiness of a witness’s testimony, I consider factors like “the witness’ ability and opportunity to observe events, the firmness of their memory, their objectivity, whether the witness’ evidence harmonizes with independent evidence that has been accepted, whether the witness changes their pre-trial evidence by the time of trial or their testimony at trial during direct and cross-examination, whether the witness’ testimony seems implausible, and the demeanor of a witness generally”: Youyi Group Holdings (Canada) Ltd. v. Brentwood Lanes Canada Ltd., 2019 BCSC 739 at para. 90. In some cases, a witness’s evidence may not be trustworthy because they have “made a conscious decision not to tell the truth”: Youyi at para. 89. In other cases, a witness may testify honestly but their evidence may not be reliable because of their inability to accurately observe, recall, or recount the event: R. v. H.C., 2009 ONCA 56 at para. 41; Youyi at paras. 89-90. In that case, I may not safely rely on their testimony where it conflicts with others who are better positioned to give accurate testimony.
[7] Mr. Gbedze testified on his own behalf. In general, I found Mr. Gbedze’s evidence to be reliable with respect to the core issues in this complaint. There were times in his testimony, however, where he made general statements unsupported by the documentary evidence. For example, at one time he stated that he did not receive any compensation from WorkSafeBC, which clearly contradicted other evidence, including his own testimony. On cross-examination, he appeared to become frustrated with the line of questioning and agreed almost robotically to a number of statements put to him which were inconsistent with his testimony on direct. In these cases, I considered the evidence before me as a whole to determine which statements were most reliable.
[8] I did not rely on the evidence of three of Mr. Gbedze’s witnesses, as I found they did not have specific knowledge of issues to be determined in this case and were instead called to provide general information about working conditions at Hilton, or to speak to Mr. Gbedze’s character. Similarly, I gave limited weight to the evidence of Susanne Moughan, who Mr. Gbedze thinks of like a mother, as much of her testimony addressed events outside of the scope of this complaint. It also became apparent on cross-examination that Ms. Moughan has a financial interest in the outcome of this complaint and expressed concern about saying anything that would negatively impact Mr. Gbedze’s chances of success. I appreciate that these four witnesses participated in the hearing to demonstrate their support for Mr. Gbedze.
[9] I found Elizabeth Lavender, a former co-worker at Hilton who provided evidence about the night Mr. Gbedze was injured, to be a reliable witness who was transparent about the limits of her memory.
[10] Erin Malcolm was the Human Resources Director at Hilton from approximately March 2019 to March 2020. In general, I found Ms. Malcolm testified in an honest and forthright manner. However, at times her testimony directly conflicted with her own contemporaneous written materials, and I found her explanations for these contradictions unpersuasive. This impacted the reliability of certain aspects of her evidence.
[11] David Ferguson is the Executive Chef and Chris Perna is the former General Manager of Hilton. Chef Furguson provided forthright information about the operations of Hilton’s Kitchen. However, Chef Ferguson and Mr. Perna both had difficulty recalling specific details about the events in this complaint and often spoke in general terms of what they would have done in the circumstances. These responses at times came off as aspirational, rather than a reliable reflection of what actually occurred. I acknowledge that there was a significant gap in time between the events leading to this complaint and the hearing, and that memories reasonably fade over time.
III Factual BACKGROUND
[12] Hilton operates as a full-service hotel with a commercial kitchen. The kitchen provides food and beverage services including in-room dining, catering and the restaurant on site. The reporting structure in the kitchen flows from the Executive Chef, the Sous Chef, the First Cook, and finally, the Second Cook. The non-managerial kitchen staff are unionized by Unite Here, Local 40 [Union].
[13] Mr. Gbedze is a 53-year-old man from West Africa. He came to Canada as a refugee in or around 2000, and in 2001 was hired as a Second Cook at Hilton. He was a member of the Union in this position.
[14] Mr. Gbedze has previously brought a complaint before the Tribunal. In 2012, he filed a complaint against Hilton and two individual respondents alleging discrimination in employment on the basis of race, colour, ancestry and place of origin. The complaint alleged bullying and harassment by a supervisor, unfair treatment in the allocation of work hours, and denial of promotional opportunities. The Tribunal dismissed the complaint on a preliminary application as the allegations were filed out of time or had no reasonable prospect of success: Gbedze v. Hilton Hotel and others, 2013 BCHRT 171. Although some of the matters arising in that complaint were referred to at the hearing, they do not fall within the scope of the current complaint.
A. Mr. Gbedze’s knee injury
[15] On November 28, 2018, Mr. Gbedze was working in the kitchen on a particularly busy shift. He testified that around 10:00 PM he was bending over to scoop some ice, and he developed severe pain in his right knee. He described being on the floor screaming when this occurred.
[16] Elizabeth Lavender, a server on duty that evening, testified that she came into the kitchen and saw Mr. Gbedze leaning over and holding his knee. Also trained as a massage therapist, she evaluated his injury and provided first aid. She said it was clear he was in a lot of pain and could not put any weight on his right leg.
[17] The manager on duty, Anthony Kim, came over to record the injury. Mr. Gbedze testified that Ms. Lavender told Mr. Kim to report his injury to WorkSafeBC. Ms. Lavender neither confirmed nor denied this during her testimony, as she could not recall the details of what was said at the time. Mr. Kim gave Mr. Gbedze a taxi voucher and sent him home from his shift early.
[18] A report regarding Mr. Gbedze’s knee injury was not filed with WorkSafeBC by Hilton. Mr. Gbedze later emailed Mr. Kim and asked him why this had not been done, and he responded that this was outside his authority and to speak with the General Manger at the time, Chris Perna. Mr. Perna testified that this would normally be the responsibility of the Human Resources Director, and in the absence of a Human Resources Director, the responsibility to report incidents to WorkSafeBC would have fallen to him. I heard evidence that the role of Human Resources Director was vacant at that time, and Mr. Perna could not recall whether he had filed a WorkSafeBC report regarding Mr. Gbedze’s knee injury.
[19] Mr. Gbedze attended his doctor the following day. His doctor provided him a medical note which he passed on to the Executive Chef, David Ferguson. The medical note recommended that Mr. Gbedze take two weeks leave to recover from his injury.
[20] It is undisputed that Mr. Gbedze had issues with his right knee before November 28, 2018.
B. Medically-supported leave
[21] Mr. Gbedze provided his employer a subsequent letter from his doctor dated December 13, 2018, which recommended that he remain off work for another four weeks. On January 3, his doctor advised that he would not be able to return to work for another 60 days, and he would be applying for Short Term Disability [STD] benefits.
[22] On February 21, 2019, and April 9, 2019, Mr. Gbedze provided Hilton further medical notes excusing him from work. The notes indicated that he would be having surgery on his knee and would not be able to return to work until September. Mr. Gbedze testified that the surgery did not go well and, as a result, his recovery was prolonged.
[23] In or around August 2019, the recently hired Human Resources Director, Erin Malcolm, reached out to Mr. Gbedze to see how his recovery was going, and offer him her assistance. She testified that this type of outreach was important to help employees on medical leave to feel connected to the workplace. Mr. Gbedze responded that he was still recovering and not yet cleared to return to work by his doctor or physiotherapist.
[24] On August 27, 2019, Mr. Gbedze provided Hilton a further doctor’s note stating that his recovery from surgery had been prolonged, and he would be reassessed regarding return to work in four weeks time. As of September 19, 2019, Mr. Gbedze’s doctor assessed him as “unable to stand or walk more than 20-25 minutes,” with “significant knee pain and swelling.” He was scheduled to be re-assessed by his surgeon in four to six weeks.
C. Return to work conversations
[25] By October 2019, Mr. Gbedze’s Employment Insurance [EI] and STD benefits had been exhausted. Around the beginning of November 2019, he reached out to Hilton to begin the conversation about returning to work. A meeting was scheduled for November 6, 2019, between Mr. Gbedze, Ms. Malcolm, and Chef Ferguson.
[26] Ms. Malcolm noted that when Mr. Gbedze arrived at the meeting, he was using a cane and appeared to be visibly in pain. Chef Ferguson stated that Mr. Gbedze appeared “laboured” in his walking and, in his personal opinion, Mr. Gbedze was not able to return to work at that time.
[27] I heard conflicting accounts of what was discussed at the meeting on November 6, 2019.
[28] Ms. Malcolm says they discussed a potential gradual return to work [GRTW] program and what was required. She states that she explained that she would be sending him a letter for his doctor with a “physical assessment form” to understand how they could successfully bring him back to work and if any modifications were needed. She stated that she informed him that they could offer him modified duties if necessary.
[29] Chef Ferguson could not recall the specific topics discussed at the meeting but stated generally that it was about how Mr. Gbedze could return to work. He stated that his understanding from the meeting was that they would seek further information from Mr. Gbedze’s doctor to determine what limitations he might have. He stated that Hilton would have been prepared to offer Mr. Gbedze modified duties if appropriate, although he did not confirm if this was specifically discussed at the meeting.
[30] Mr. Gbedze disagrees that Hilton was willing to offer him modified duties or that they were offered in this meeting. Rather, he says that he specifically asked if he could come back in a modified capacity, such as sitting on a stool and peeling potatoes, or anything else they needed. However, he says that Ms. Malcolm and Chef Ferguson said he had to be “100% fit” to return to work. He understood this as a refusal to consider bringing him back in any capacity other than his full duties as Second Cook.
[31] Both Ms. Malcolm and Chef Ferguson denied stating that Mr. Gbedze had to be at “100%” before he could return to work. While I cannot conclude that either Ms. Malcolm or Chef Ferguson specifically stated that Mr. Gbedze had to be “100%” before he could return to work, I find that they did communicate to him that he would be required to be medically fit to perform his Second Cook duties to return to work. I find that they offered Mr. Gbedze modified hours on a gradual basis, but did not meaningfully discuss the possibility of modified duties during this meeting. I am satisfied that this reasonably left Mr. Gbedze with the impression that he had to be fully recovered before he could return to work. This finding is consistent with the contemporaneous documentation prepared by Ms. Malcolm, which is described below. It is also supported by the fact that Mr. Gbedze’s doctor was never asked by Hilton to provide information to support what modification in duties Mr. Gbedze required, although Hilton’s witnesses all stated that this information was necessary before modified duties could be considered.
[32] Mr. Gbedze testified that as he was leaving the November 6, 2029, meeting, he ran into Mr. Perna outside of the chef’s office. He stated that he explained his situation to Mr. Perna, and Mr. Perna also stated that Mr. Gbedze had to be “100%” before he could come back to work.
[33] In his testimony, Mr. Perna could not recall this interaction with Mr. Gbedze. When asked if he ever told Mr. Gbedze that he needed to be “100%” before they would allow him back, he explained that he had made a comment to the effect of Mr. Gbedze needing to be medically cleared to return to work.
[34] I find that Mr. Perna did make a comment to the effect of Mr. Gbedze needing to be “100%” before he could return to work. His explanation does not refute this finding. There is also evidence before me that on October 21, 2021, he stated to WorkSafeBC that Hilton was unable to accommodate Mr. Gbedze’s permanent limitations, and that he had not returned to work yet because “they need him to be 100% to do the line cook job.” Mr. Perna testified that he only had a vague recollection of this conversation and could not recall using these exact words. I find that the contemporaneous notes taken by WorkSafeBC to be more reliable in these circumstances and find that his repetition of this phrase supports Mr. Gbedze’s account of their conversation on November 6, 2019. In any event, I accept that Mr. Gbedze reasonably understood from what he was told that he had to be 100% to return to his job.
[35] Following their meeting on November 6, 2019, Ms. Malcolm sent Mr. Gbedze an email summarizing their discussion and including a letter for his doctor, as well as a job description for his role as Second Cook. The letter to Mr. Gbedze states:
Today we discussed the possibility of your return to work and what that may look like. During the conversation you indicated that you have had some difficulty with your recovery and were looking at what options are available to you. To assist you with this process, I have taken the liberty of writing a letter to your physician to outline our gradual return to work program. In addition, the Second Cook job description is attached for your physician to review.
Our goal is to ensure that any associate that participates in a gradual return to work program is able to return to their full position in a safe, meaningful and productive manner.
[36] The attached letter to Mr. Gbedze’s doctor states:
In keeping with the Hilton Vancouver Metrotown’s commitment to provide safe and productive return to work for our associates, our program is based on modified hours (4, 6, and 8) and less days (providing rest for the associate) rather than modified duties.
[…] We are requesting guidance on the best possible return to work program designed for Honore, based on a maximum return to full hours’ time line of 4-6 weeks.
If you could please indicate the following:
· If Honore is physically ready to begin a Gradual Return to Work Program
· The date you patient is able to start the gradual return to work program
· The length (4, 6 and 8 hours) and number of shifts per week
As mentioned above, Honore is a Second Cook at the Hilton Vancouver Metrotown and will be returning to work in the same role. [emphasis added]
[37] When Ms. Malcolm was asked about this letter, and the reference to modified duties not being normal practice, her response was that this may have been a “typo”. I do not find this to be a credible explanation, as the letter as a whole describes a GRTW practice based on modified hours and does not otherwise mention modified duties being available. Rather, I find this letter supports Mr. Gbedze’s characterization of Hilton’s approach, that he was expected to be able to fulfill the duties of Second Cook to return to work.
[38] The following day, November 7, 2019, Mr. Gbedze contacted WorkSafeBC. He testified that WorkSafeBC informed him that his employer should have filed a report about his knee injury “a long time ago” and that he needed to file a claim immediately given the one-year deadline was approaching. He filed a claim the same day and informed Hilton that he had done so.
[39] Ms. Malcolm immediately completed the employer’s portion of the WorkSafeBC form upon being notified of Mr. Gbedze’s claim. As she was not yet employed by Hilton at the time of his knee injury, she stated that she completed this form based on the information available on Mr. Gbedze’s employee file. The information she provided stated that Hilton opposed the claim, as it was unknown if the injury had occurred from a specific incident on the worksite. In response to a question on the form about “modified or transitional duties” offered to the worker, she wrote: “November 6, 2019. Human Resources and Associate met to discuss the GRTW program. Modified hours and micro break offered, Associate stated he had difficulty standing and walking. Filed WSBC claim a day after meeting.” [emphasis added]
[40] Ms. Malcolm also attached an addendum to the WorkSafeBC Form, titled “Timeline of events”. With respect to the November 6, 2019, meeting she had with Mr. Gbedze the day before, she wrote:
11am Associate met with Human Resources to discuss a return to work program as he had been off work since November 29, 2018 and his Short term disability had finished. During this meeting associate stated that it is hard to walk and stand for periods of time. Modified hours were offered to the associate, with micro-breaks. Due to the work environment of a kitchen, it is difficult to offer modified duties for an associate that cannot stand or walk for periods of time.” [emphasis added]
[41] Ms. Malcolm testified on direct examination that this was an accurate summary of the meeting, and she would not have signed her name to the form if it had not been her true experience. When asked about the statement regarding modified duties, she stated that work in the kitchen can be very hectic, and it would be difficult to offer modified duties without an understanding of how long Mr. Gbedze could stand or walk for. She said she did not include it on the form, but once they had his medical information, they would have also considered looking for roles outside of the Second Cook position. I am unable to reconcile this explanation with Ms. Malcolm’s statement that her notes were an accurate summary of the meeting, and all the other contemporaneous written evidence, prepared by her, demonstrating that only modified hours were available.
[42] On November 26, 2019, Mr. Gbedze provided a letter from his doctor to Hilton. The doctor’s letter states:
This employee of yours has severe knee issues which are preventing him from returning to work as a chef at this time. He was on short term disability until September 2019. At the present time, he would be a candidate for long term disability. Please help him in this regard. [emphasis added]
[43] Upon receipt of this information, Ms. Malcolm referred Mr. Gbedze to his Union for information about applying for long term disability benefits. Mr. Gbedze did not follow up with her about this, and Ms. Malcolm stated that to her knowledge he did not apply for these benefits. She stated that her understanding was that Mr. Gbedze could not return to work in any capacity at that time.
[44] On January 16, 2020, Mr. Gbedze’s doctor again wrote stating: “This is to verify that the above is still under medical care for his knee injury. He is slowly improving but needs another 3 months towards his recovery. He is still limited in his mobility and is unable to work at his former occupation of chef.” [emphasis added]
[45] On January 22, 2020, Mr. Gbedze reached out to Chef Ferguson and Ms. Malcolm by email, stating: “Quick note to informed you I have been getting more better and ready to return.” The evidence before me is that Mr. Gbedze was under significant financial strain at that time as he was no longer eligible for EI or STD benefits.
[46] Ms. Malcolm responded the same day, sending him the same letter to provide to his doctor that she sent on November 6, 2019, along with the Second Cook job description. As before, the information requested from Mr. Gbedze’s doctor did not include as assessment of what modifications or accommodations he required in his duties, rather it asked when he could begin a gradual return to his duties as Second Cook, as set out in the job description.
[47] Chef Ferguson testified that upon hearing that Mr. Gbedze was ready to return to work, he was excited. He stated that he “probably” started communication with the team about getting a preliminary return to work plan in place. He stated that it was his understanding that Hilton would be obtaining medical information from Mr. Gbedze to determine what work they could give him upon his return, but they never received that information.
[48] On January 23, 2020, Mr. Gbedze emailed Mr. Kim accusing Hilton of “covering up” the true nature of his injury with WorkSafeBC. He further stated: “The hotel is playing game to not have me back.” Mr. Gbedze also filed his human rights complaint that day.
[49] Ms. Malcolm responded to Mr. Gbedze’s email the next day, stating:
I see that you feel that the hotel has not supported you in your efforts to return to work. I must assure you that this is the furthest thing from our intention. We believe the health and well being of our associates is of utmost importance. Our intention has always been to ensure that any associate, whether injured at work or not, is to provide our associate with support during their medical leave and when they are ready to return. Our return to work program works with each team member, and their physician, to create a safe and sustainable gradual return to meaningful and productive work.
The way we do this is to offer modified hours and days off to help the person recover. Then gradually, with a physician’s approval, increase the days and hours, until the associate has returned to full time. I have twice sent the outline of our return to work program to you, with the specific intention to have you return to your position with the assistance of your physician in the best possible manner. [emphasis added]
[50] Ms. Malcolm said she never received anything back from Mr. Gbedze’s doctor which specifically addressed the questions in her letter related to a GRTW. Ms. Malcolm left her position at Hilton in or around February 2020.
[51] Mr. Gbedze testified that as of January 2020, it was clear to him that Hilton did not want him back and was unwilling to accommodate his disability. Out of financial necessity, he sought employment elsewhere.
[52] Chef Ferguson testified that he heard through kitchen staff that Mr. Gbedze was working at another hotel and was surprised because they wanted him to come back to work at Hilton when he was medically cleared to do so. Ms. Malcolm also testified that she heard Mr. Gbedze was working elsewhere and stated that she assumed this meant that he did not want to return to work at Hilton.
IV DECISION
[53] To prove his case, Mr. Gbedze must establish, on a balance of probabilities, that he had a disability at the material time, that he experienced an adverse impact in employment, and that his disability was factor in that adverse impact: Moore v. BC (Education),2012 SCC 61 at para. 33. If Mr. Gbedze does not prove the three elements of his case, then there is no breach of the Code.
[54] If Mr. Gbedze is successful in establishing all three elements, then the burden shifts to Hilton to justify its conduct based on a bona fide occupational requirement. If Hilton proves this defence, then there is no discrimination.
[55] I begin with Mr. Gbedze’s burden to prove the elements of his case. Because I find that he has proven his case, I then move on to consider Hilton’s defence, including whether it fulfilled its duty to accommodate Mr. Gbedze to the point of undue hardship.
A. Did Mr. Gbedze prove his case?
[56] The respondent does not dispute, and I am satisfied on the evidence that Mr. Gbedze has a physical disability within the meaning of the Code. The medical records he has provided consistently diagnose the following with respect to his right knee: aggravation of tri-compartmental osteoarthritis, medial and lateral menisci tear, and chronic pain. The medical evidence shows that these conditions have caused him permanent limitations.
[57] Hilton argues that Mr. Gbedze did not experience any adverse impact in employment because he was never able to work in any capacity and ultimately quit his employment in January 2020. I disagree. I find that Mr. Gbedze was adversely impacted regarding his employment when he was not permitted to return to work in November 2019, and again in January 2020, because he had to be 100% medically fit to return to his job. The BC Court of Appeal has confirmed that a complainant proves their case if it establishes the employer assumes the employee cannot return to work because of their disability without seeking clarification as to what they were capable of doing: Boehringer Ingelheim (Canada) Ltd./Ltée. v. Kerr, 2011 BCCA 266 at paras. 33-36.
[58] Hilton had medical evidence as of November 26, 2019 – received in the context of its inquiry about a GRTW in the Second Cook position – that Mr. Gbedze could not work as a chef at that time. However, it did not have information that Mr. Gbedze could not work in any position, or even whether he could work with modified duties in the Second Cook position. Hilton did not seek the necessary medical information to better understand in what capacity, if any, Mr. Gbedze was able to work at the time. Hilton instead appears to have reached a conclusion about his capacity based on their own impressions of his disability, and a mischaracterization of his doctor’s opinion. Mr. Gbedze wanted to return to work but was not allowed to do so. This was a significant adverse impact on his employment.
[59] I consider Hilton’s argument that Mr. Gbedze quit his employment in or around January 2019 the context of Hilton’s justification defence. I consider Hilton’s arguments about Mr. Gbedze’s capacity to work in the context of his wage loss claim.
[60] Finally, I find that Mr. Gbedze’s knee injury was the primary factor in why Hilton did not allow him to return to work. Hilton required Mr. Gbedze to provide medical clearance from his doctor describing when he could begin a GRTW in his position of Second Cook based on a modified hour schedule. Mr. Gbedze was unable to provide this information because his doctor did not find him medically fit to work in this position because of his disability.
[61] Having found that Mr. Gbedze has established the three elements of his case, I now consider Hilton’s justification for their conduct.
B. Has Hilton established a justification defence?
[62] Section 13(4) of the Code sets out that a person does not breach the Code if their conduct is based on a bona fide occupational requirement. In British Columbia (Public Service Employee Relations Commission) v. British Columbia Government and Service Employees’ Union (Meiorin Grievance), 1999 CanLII 652 (SCC), [1999] 3 SCR 3 [Meiorin], the Supreme Court of Canada set out the test to prove a defence under s. 13(4). The employer must provide evidence that demonstrates:
a. it adopted a standard for a purpose rationally connected to the performance of the job;
b. it adopted that standard in an honest and good faith belief that it was necessary for the fulfillment of that legitimate work-related purpose; and
c. the standard is reasonably necessary to the accomplishment of that legitimate work-related purpose.
[63] To prove this third element, the employer must demonstrate that it is impossible to accommodate employees sharing the same protected characteristics of the complainant without imposing undue hardship upon itself: Meiorin at para. 54. In other words, an employer must show “that it could not have done anything else reasonable or practical to avoid the negative impact on the individual: Meiorin at para. 38; Central Alberta Dairy Pool v. Alberta (Human Rights Commission), 1990 CanLII 76 (SCC), [1990] 2 S.C.R. 489 at pp. 518-19; Council of Canadians with Disabilities v. VIA Rail Canada Inc., 2007 SCC 15 at para. 130.
[64] Hilton argues that there should be little issue that its requirement for medical evidence to establish an employee’s fitness for duties after an extended leave is both (a) rationally connected to the function being performed, and (b) adopted in good faith.
[65] In accommodation cases where the adoption and application of qualification standards is not central to the complaint, as in this case, a rigid application of all facets of the Meiorin test is not always required: Quackenbush v. Purves Ritchie Equipment Ltd., 2006 BCSC 246, at paras. 52-54. Rather, the central question to determine is whether the employer reasonably accommodated the complainant. I accept that this is the appropriate focus of the analysis in this case.
[66] Employers are required to take reasonable and practical steps to assess whether working conditions can be changed to allow the employee to do their work and, if not, whether there is other work that they could do: Hydro-Québec v. Syndicat des employées de techniques professionnelles et de bureau d’Hydro-Québec, section locale 2000 (SCFP-FTQ), 2008 SCC 43 [Hydro-Québec] at para. 17. The purpose of the employer’s duty to accommodate is “to ensure that an employee who is able to work can do so” and that “persons who are otherwise fit to work are not unfairly excluded where working conditions can be adjusted without undue hardship”: Hydro-Québec at para. 14.
[67] Accommodation is an individualized process that turns on the specific facts of each case. It may include modifying working hours, changing or lightening duties, or authorizing staff transfers: Hydro-Québec at para. 17. It can take time, as “medical information is obtained, assessments are done, work sites are investigated, and job functions researched”: Graham v. Richmond School District No. 38, 2005 BCHRT 520 at para. 42.
[68] However, the duty to accommodate is not unlimited, and the concept of “undue hardship” sets the goalposts for how far employers are required to go before further efforts become unreasonable. Inherent in this concept is the recognition that some hardship must be tolerated by employers: Stewart v. Elk Valley Coal Corp, 2017 SCC 30 at para. 128 (per Gascon J, dissenting but not on this point); Council of Canadians with Disabilities v. VIA Rail Canada Inc., 2007 SCC 15 [VIA Rail] at para. 122. The employer’s duty ends when this hardship becomes “undue” and further pursuits would be unreasonable, or if the employee or union’s conduct frustrates their reasonable efforts. Ultimately, this analysis must be anchored in “common sense” and “flexibility”: Hydro-Québec at para 12.
1. Did Hilton reasonably accommodate Mr. Gbedze?
[69] When Mr. Gbedze indicated that he wanted to return to work, Hilton offered him a gradual return to his position of Second Cook, subject to medical clearance by his doctor. This was a reasonable first step in exploring accommodating Mr. Gbedze’s disability. However, once Hilton received a medical opinion from Mr. Gbedze’s doctor stating that he could not return to work in that position, Hilton had an obligation to continue to explore other reasonable accommodation. They did not do so.
[70] Ms. Malcolm testified that she understood that Mr. Gbedze could not return to work in any capacity following his doctor’s November 26, 2019, letter. Chef Ferguson expressed a similar impression. This perception may have been based, in part, on their own assessment of his physical condition during the November 6, 2019, meeting. However, I find they did not have sufficient information to reach that conclusion at the relevant time. This is because they did not request the medical information they would have required to consider whether Mr. Gbedze could work in some capacity other than his full duties as Second Cook.
[71] The only information Hilton asked Mr. Gbedze’s doctor to provide was (1) if he was physically fit to begin a GRTW program; (2) the date he was able to return to work; and (3) the length and number of shifts per week he could work. His doctor was only told that he would be returning to his position as Second Cook, and a list of these duties was provided.
[72] Whereas all the previous doctor’s letters stated that Mr. Gbedze required additional time off work to recover from his knee injury, the November 26, 2019, doctor’s letter stated that Mr. Gbedze could not return to work as a chef. The letter also stated that Mr. Gbedze would be a candidate for long term disability benefits. The context for this medical opinion is important: it was provided in response to Ms. Malcolm’s letter asking for a specific opinion on when he could begin a gradual return to work to his Second Cook position. It was also provided after Hilton conveyed the message that he would not be allowed to return to work unless he was sufficiently recovered from his injury to complete his Second Cook duties.
[73] Mr. Gbedze’s doctor’s opinion that he may be a candidate for long-term disability benefits did not absolve Hilton from exploring further accommodation for Mr. Gbedze when they were already aware of his desire to return to work. Mr. Gbedze’s doctor may not have been familiar with Hilton’s accommodation obligations and was operating within the limited information that had been provided to assist Mr. Gbedze. Ms. Malcolm referred him to his Union with respect to exploring those benefits and seems to have accepted that as the end to the conversation. She testified that she was “confused” by the contradiction between Mr. Gbedze’s stated desire to return to work and the medical evidence he provided. However, there is no evidence that she, or anyone else at Hilton, asked him if his intention was to apply for long-term disability benefits or if his doctor’s opinion meant that he no longer wished to return to work. It was not reasonable for Hilton to assume that he no longer wished to return to work without discussing this with him further. Ultimately, Mr. Gbedze did not apply for long-term disability benefits, and it is unclear whether he would have been eligible to receive them.
[74] When Mr. Gbedze again voiced his desire to return to work in January 2020, Hilton had recently received another medical opinion from his doctor stating again that he could not return to his position as a chef. Again, Ms. Malcolm said she found this contradiction between Mr. Gbedze’s desire to return to work and the medical information his doctor provided “confusing”. However, Hilton did not seek clarification. It did not request a broader medical assessment of Mr. Gbedze’s functional abilities or limitations which would have enabled them to assess whether there were other reasonable accommodations they could offer him. Rather, Ms. Malcolm sent the same letter to his doctor with a limited inquiry about when Mr. Gbedze could begin a gradual return to his Second Cook position. I find that Hilton was singularly focused on offering Mr. Gbedze a GRTW based on modified hours and did not consider whether there was another reasonable way to accommodate him. This approach was not reasonable.
[75] Although all of Hilton’s witnesses stated that it would have been willing to offer Mr. Gbedze modified duties, I find they did not take any action to meaningfully explore modified duties for Mr. Gbedze. They each stated that before they could do so, they required medical information from him to understand what he could or could not do. However, nobody ever requested this information from Mr. Gbedze or his doctor. Being theoretically prepared to offer modified duties is not the standard required by human rights law if appropriate action is not taken to facilitate real opportunities.
[76] This is not an employment situation consisting of a restaurant or small kitchen where the only staff are chefs who are required to stand for their entire shifts. Hiton is a full-service hotel with a range of other positions that could have been explored for Mr. Gbedze. Ms. Malcolm stated that Hilton would have considered a position for Mr. Gbedze outside the kitchen, dependent on medical clearance, however no steps were taken to request the information Hilton required to assess other options.
[77] Hilton had a responsibility to collect relevant information and identify options to accommodate the complainant, including “information about the employee’s medical condition, prognosis for recovery, ability to perform job duties, and capabilities for alternate work”: Gordy v. Painter’s Lodge (No. 2), 2004 BCHRT255 at para. 84. In this case, Hilton fell short of meeting this responsibility by limiting its inquiry to Mr. Gbedze’s ability to participate in a GRTW as Second Cook based on modified hours.
[78] As a result of this error, Hilton did not explore accommodation options for Mr. Gbedze short of undue hardship.
[79] Next, I address Hilton’s argument that it was Mr. Gbedze’s conduct, not theirs, that prevented him from being accommodated.
2. Did Mr. Gbedze frustrate the accommodation process?
[80] Employees also have responsibilities in the search for reasonable workplace accommodation: Central Okanagan School District No. 23 v. Renaud, 1992 CanLII 81 (SCC), [1992] 2 SCR 970. Central to this is “bringing to the attention of the employer the facts relating to discrimination.” In most cases, this will mean that an employee must tell their employer that they require accommodation. This is often the first step of the process.
[81] Employees are entitled to a reasonable solution, not a perfect one. At the same time, while they may make suggestions, the employee is not required to originate a solution. Renaud recognizes that it is the employer who is in the best position to determine how the complainant can be accommodated without undue interference with its business operations. However, the employee is required to facilitate the implementation of a reasonable proposal by the employer and accept reasonable accommodation: Renaud. An employee who turns down a reasonable proposal, or fails to facilitate one, can be said to have frustrated the accommodation process. In such cases, an employer who has made reasonable efforts will be found to have discharged its duty to accommodate: see Anderson v. Spectrum Society for Community Living, 2025 BCHRT 80 at para. 126; Sahota v. WorkSafe BC (No. 2), 2019 BCHRT 104 at paras. 148-149.
[82] I am satisfied that Mr. Gbedze brought forward the “facts relating to discrimination” by notifying Hilton about his disability. It is undisputed that Mr. Gbedze provided clear medical documentation supporting his leave from work from November 28, 2018, through to October 2019. In November 2019, in response to Ms. Malcolm’s request for information about Mr. Gbedze’s ability to commence a gradual return to work, Mr. Gbedze provided a note from his doctor stating that he could not return to his position of Second Cook. It is reasonable that Mr. Gbedze’s doctor did not answer the specific questions asked by Hilton, given that the doctor apparently did not support the GRTW proposal in the position he could not return to. I find that Mr. Gbedze was facilitating the search for accommodation at that point in time.
[83] Mr. Gbedze did not respond to Ms. Malcolm’s second letter to his doctor requesting an opinion on a GRTW in January 2020.
[84] Hilton argues that Mr. Gbedze essentially quit his position with the hotel around that time. The evidence before me does not support such a conclusion, nor does it support that Hilton understood this to be the case at the time. Rather, there is evidence that as late as June 2024, Hilton still considered him to be an employee on medical leave.
[85] Mr. Gbedze testified that at that point it was clear that Hilton was not going to allow him to return to work and this request for information was merely performative given that Hilton was already aware of his inability to return to work as Second Cook. I find that this was a reasonable conclusion for him to reach in the circumstances.
[86] Hilton further argues that it was incumbent on Mr. Gbedze to provide medical evidence that he could work in some capacity, and he essentially frustrated the accommodation process by failing to do so. Hilton relies on Chang v. B.C. (Ministry of Small Business and Revenue) (No. 2), 2007 BCHRT 148 at paras. 58-59 for the position that where an employee fails to provide the necessary medical information sought by the employer, and an adverse impact results, the employer will not be liable for discrimination and the complaint must fail. Respectfully, Chang does not apply to my factual findings in this case, and the respondent’s position fails to appreciate where the burden of the duty to accommodate primarily lies. As the employer, Hilton was responsible for requesting the information it required to assess its ability to accommodate Mr. Gbedze. It did not do so. Only once it had done so would the burden shift to Mr. Gbedze to facilitate that process.
[87] Saran v. SeaStar Solutions and others (No. 3), 2021 BCHRT 108, also relied on by Hilton, is also distinguishable from the present case. There, the complainant failed to provide medical information to his employer out of concern for his privacy and thereby frustrated the accommodation process. However, the employer’s request for information in that case appears to have been broader and included a request for “any other advice the doctor considered appropriate to assist [the complainant] in managing his condition and ensuring his successful return to work”: at para. 56. In contrast, Hilton’s request for medical information was limited to when he could commence a GRTW as a Second Cook with specific duties that they already had reason to believe he could not perform.
[88] I do not find that Mr. Gbedze’s conduct frustrated the accommodation process. Hilton’s proposal of a GRTW to his Second Cook position in January 2020 was not reasonable given the recent medical information it had available at the time. By sending the same letter to his doctor a second time, Hilton was reinforcing the message that the only accommodation available was modified hours contingent on him being medically fit to return as Second Cook. Mr. Gbedze did not fail to facilitate a request for reasonable medical information; the request in this case was not reasonable. The burden was on Hilton to seek relevant medical information and propose reasonable accommodation, and it failed to do so in this case.
[89] As a result, I find that Hilton’s actions were not justified. Hilton’s actions violated s. 13 of the Code based on Mr. Gbedze’s physical disability.
V Remedy
[90] Having found Mr. Gbedze’s complaint to be justified, I must now determine the appropriate remedy to award in this case.
[91] I premise this section with the acknowledgment that the financial remedy sought by Mr. Gbedze exceeds three million dollars. I am mindful that he was representing himself in these proceedings and did not have the benefit of legal counsel to provide guidance on what may have been permissible and reasonable, or to otherwise manage his expectations regarding the outcome of his complaint. He may be disappointed that my orders fall short of the substantial award he was envisioning.
A. Cease and Refrain Order
[92] I begin by ordering Hilton to cease the contravention of the Code and to refrain from committing the same or a similar contravention: Code, s. 37(2)(a).
B. Declaratory Order
[93] Under s. 37(2)(b) of the Code, the Tribunal may make a declaratory order that the conduct complained of, or similar conduct, is contrary to the Code. In the circumstances of this case, I consider it appropriate to make such an order. I declare that Hilton discriminated against Mr. Gbedze based on physical disability, in violation of s. 13 of the Code.
C. Lost Wages
[94] Mr. Gbedze seeks an order for Hilton to pay him $385,000 for lost earnings between the date of his knee injury in 2018 to the date of the hearing of this complaint, in March 2025. This was calculated based on his what he says was his annual salary before deductions of $55,000. Mr. Gbedze also seeks compensation for lost future earnings in the amount of $715,000, from March 2025 to his anticipated retirement in 13 years.
[95] Hilton has not made submissions with respect to Mr. Gbedze’s entitlement to lost wages; however, I have considered the relevant evidence presented during the hearing.
[96] The Tribunal can order an employer to pay compensation for lost wages caused by the discrimination. The purpose of compensation 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; upheld in Gichuru v. The Law Society of British Columbia, 2014 BCCA 396. Mr. Gbedze must establish he is entitled to compensation. He must show a causal connection between the discrimination and the loss claimed: Gichuru at paras. 301-302. Once a causal connection is established, the amount of compensation is a matter of discretion in light of the remedial purposes of the Code and the purpose of a wage loss award: Gichuru at para. 303; Benton v. Richmond Plastics, 2020 BCHRT 82 at para. 91.
[97] The discrimination occurred when Hilton failed to accommodate Mr. Gbedze’s return to work following his medical leave. To be clear, however, I have not found that Mr. Gbedze’s knee injury was caused by Hilton’s discrimination. I must therefore first consider whether Mr. Gbedze has established a causal connection between Hilton’s failure to accommodate his return to work and his claim for wage loss. I then must also take into account any other factors that affected his wage loss during the relevant period, steps Mr. Gbedze has taken to mitigate his lost income, and any other compensation he received.
[98] I begin by explaining that Mr. Gbedze has established a connection between the discrimination and wage loss. I deal first with Hilton’s argument that Mr. Gbedze was never able to work in any capacity. If this were the case, then Mr. Gbedze could not establish wage loss flowing from the discrimination: Hoang v. North-West Produce, 2011 BCHRT 85 at para. 82. However, I find that Mr. Gbedze was able to work. I then address Mr. Gbedze’s wage loss in the various periods once Mr. Gbedze sought to return to work.
[99] From November 2018 to November 2019, Mr. Gbedze was unable to work in any capacity. His lost income was compensated by EI and STD payments up to October 14, 2019. This period pre-dates the discriminatory conduct and I decline to order payment for wages lost during this time.
[100] Hilton asks me to further find that Mr. Gbedze was unable to return to work in any capacity in November 2019, and up to and including January 2020. Hilton points to the medical documentation provided which does not explicitly state that he could perform any modified duties. Hilton further points to statements which Mr. Gbedze agreed to on cross-examination, in which they say he acknowledged that he was unable to return to work in any capacity at that time.
[101] I have already found that the information before Hilton was not sufficient for them to conclude that he could not work in any capacity in the context of an employer’s duty to accommodate. It was incumbent on Hilton to seek additional information about Mr. Gbedze’s capacity to work during that time, but they did not. This failure is in part responsible for a dearth in evidence about Mr. Gbedze’s capacity to work during this period. Nevertheless, I am satisfied on the evidence that as of January 16, 2020, Mr. Gbedze did have capacity to work, though not in his Second Cook position.
[102] I base this finding on Mr. Gbedze’s statements on direct examination that he wanted to return to work in any capacity he could be useful, which is consistent with his email to Hilton on January 22, 2020, stating that he was ready to return work. I also rely on the evidence from his medical file. For example, an internal note prepared by Mr. Gbedze’s doctor, dated January 16, 2020, states in part:
Now 7 months since his knee surgery. His knee has improved somewhat, but is still intermittently very painful. Unable to stand or walk more than about 6 hours. Things he could do administrative work, front desk work, kitchen management if it were part time.
[103] Accordingly, I am satisfied that Mr. Gbedze is entitled to compensation for lost wages starting from January 16, 2020.
1. January 16, 2020, through March 11, 2020
[104] I am satisfied that Mr. Gbedze has established a causal connection between the discrimination and his wage loss starting from January 16, 2020, when his doctor opined that he could work in other roles. By that time, Mr. Gbedze had provided a medical opinion to Hilton that he could not return to work as Second Cook, but Hilton did not request a further medical assessment or explore other modified duties. There is a clear causal connection between Hilton’s conduct and Mr. Gbedze’s lost income from that point.
[105] I find that the wage loss in this period is eight weeks. However, there are contingencies during this period that must be accounted for. For instance, given that Mr. Gbedze would not be returning to his pre-injury position of Second Cook, it would have reasonably taken some time to determine an appropriate accommodation for Mr. Gbedze. However, I also find that Hilton should have started that process in November 2019, when Mr. Gbedze’s doctor first indicated that he could not return to his Second Cook position but was not asked to provide an opinion on what if any modified duties he could perform. Nevertheless, it is also unknown whether a modified position would have been available or appropriate for Mr. Gbedze’s qualifications, or whether it would be a full-time position. I find a 60 percent deduction for these contingencies is appropriate in the circumstances.
[106] Mr. Gbedze says he should be compensated based on an annual gross income of $55,000. However, he has not presented any evidence to support that this was his salary. Rather, the evidence before me is that in the 12 weeks prior to his injury, Mr. Gbedze earned a weekly gross income of $952.83. I base my award on this amount. For this period of eight weeks, taking into account the contingency deduction, Mr. Gbedze would have earned $3,049.06
[107] On or around February 24, 2020, Mr. Gbedze secured employment as a Second Cook at the Hyatt Regency Vancouver. He worked there until March 11, 2020, when the hotel was also shut down due to the COVID-19 pandemic. He earned $1,867 for that employment. I deduct these earnings from his wage loss entitlement for this period, for a total of $1,182.06.
2. March 12, 2020, through March 29, 2021
[108] In March 2020, the COVID-19 pandemic forced mass layoffs at Hilton, including kitchen staff. I heard evidence that the kitchen closed completely at that time. However, I find this does not preclude that Mr. Gbedze could have still earned an income from Hilton during this period, if he were accommodated in a position outside the kitchen. Hilton did not provide evidence on what other roles were impacted by the pandemic layoffs.
[109] I am satisfied that Mr. Gbedze is entitled to wage loss during this period, up to March 29, 2021, when he commenced employment at a care facility. However, his wage loss entitlement for this period warrants a significant contingency deduction of 70 percent to account for the unknown factors of first, whether a suitable accommodated position would have been found, and second, whether that accommodated position would have been impacted by the pandemic layoffs.
[110] I find the wage loss in this period is 54 weeks. For this period, taking into account the contingency deduction, Mr. Gbedze would have earned $15,435.85.
3. End of wage loss entitlement from March 30, 2021
[111] Mr. Gbedze has not established, and the evidence does not support, that he is entitled to compensation for wage loss beyond March 29, 2021. Below I describe the events during the subsequent months that I find ended the causal connection between the discrimination and Mr. Gbedze’s lost wages.
[112] First, in or around April 2021, Hilton’s unionized employees commenced a strike action, which lasted until May 2022. Chef Ferguson testified, and I accept, that the kitchen was not operating while the staff were on strike. There is no evidence before me to suggest that Mr. Gbedze would have been placed in an excluded position during this period, so that his income would not have been impacted by the labour dispute. Such a finding would be no more than speculation.
[113] Next, from on or around March 30, 2021, to September 1, 2021, Mr. Gbedze was employed part-time at a care facility in Surrey, BC. At some point he had to stop working after contracting COVID-19. He says this employment ended after someone from WorkSafeBC told him to stop working. He earned $5,379 for that employment, which is similar to what he would have earned working part-time for Hilton during the same period.
[114] Also during this period, after several appeals, the Workers’ Compensation Appeal Tribunal [WCAT] accepted that Mr. Gbedze’s work activities at Hilton had aggravated his pre-existing knee injury. He was referred to Long Term Disability Services for the assessment of permanent disability benefits. He received a lump sum payment of $50,324 in 2021. I understand this decision to be related to a determination that his injury stabilized as permanent as of January 19, 2020. However, the evidence before me does not delineate what this payment was intended to cover, or for what time period. Accordingly, I decline to deduct this payment from the wage loss entitlement for the previous period.
[115] Having found that Mr. Gbedze would be unable to return to his pre-injury employment as a Second Cook, on September 16, 2021, WorkSafeBC referred him to a Vocational Rehabilitation [VR] consultant to determine if there were any suitable occupations for which he could gain employment. WorkSafeBC compensated Mr. Gbedze with a VR “planning allowance” starting from this date. The documentary evidence provided shows that the VR consultant worked with Mr. Gbedze throughout October to December 2021, to identify potential alternative career options and training opportunities. The VR consultant identified a potential occupation compatible with Mr. Gbedze’s physical abilities and professional qualifications. However, Mr. Gbedze provided extensive testimony about his dissatisfaction with the VR process and in particular the consultant he was assigned. The documentary evidence also reports Mr. Gbedze’s complaints, in particular with respect to the VR’s rejection of a different career path that Mr. Gbedze had identified, for which he was already enrolled in an online course on his own initiative. Ultimately, Mr. Gbedze decided not to continue participating in the rehabilitation plan designed for him, and his WorkSafeBC benefits were discontinued as a result. Mr. Gbedze appears to have engaged in various appeals in that process but remains dissatisfied with the decisions with respect to the quantum and termination of his benefits.
[116] Mr. Gbedze has a duty to mitigate his damages: Sylvester v. British Columbia Society of Male Survivors of Sexual Abuse, 2002 BCHRT 14, para. 73. The duty to mitigate requires a person to take reasonable steps to avoid or reduce their financial losses, including by looking for other comparable work. The onus is on the respondent to prove a failure to mitigate, including by showing that alternative employment could have been found if the employee had taken those steps. I must also exercise my discretion in determining an appropriate remedy in light of all the evidence before me.
[117] I find that WorkSafeBC’s VR process presented an opportunity for Mr. Gbedze to engage in a new career path which could have mitigated the wage loss caused by Hilton’s discrimination. He chose to discontinue his engagement in that process. While I understand that Mr. Gbedze takes issue with how that process was conducted, he has also presented no evidence that he attempted to secure other employment following his experience with the VR process. He has not explained why he did not do so. His evidence is that he has instead been engaged in unpaid activities, including publishing an online newspaper.
[118] Based on this information, I find that Mr. Gbedze has not established that any wage loss he experienced beyond March 29, 2021, has a causal connection to Hilton’s failure to accommodate him.
4. Summary of wage loss entitlement
[119] I have found that Mr. Gbedze is entitled to the following wage loss entitlement:
a. For the period of January 16, 2020, through March 11, 2020: $1,182.06; and
b. For the period of March 12, 2020, through March 29, 2021: $15,435.85.
[120] To the extent that Mr. Gbedze received CERB benefits in 2020 and 2021, CERB payments are not deductible from compensation awards: Yates v. Langley Moto Sport Centre Ltd., 2022 BCCA 398; Bayongan v. Shimmura and another, 2023 BCHRT 27 at para.66.
[121] I also accept that Mr. Gbedze received financial gifts from Ms. Moughan during this period, however an exact amount was not provided. Hilton has not argued, and I am not aware of any case law to support that financial gifts or loans from friends or family members should be deducted from any wage loss entitlement.
[122] In conclusion, I order Hilton to pay Mr. Gbedze $16,617.91 in lost wages caused by the discrimination.
D. Injury to Dignity
[123] The Tribunal has the discretion to order compensation for injury to dignity, feelings and self respect under s. 37(2)(d)(iii) of the Code. The purpose of these awards is compensatory, and not punitive. In exercising its discretion, the Tribunal generally considers three broad factors: the nature of the discrimination, the complainant’s social context or vulnerability, and the effect on the complainant: Gichuru at para. 260. The quantum is “highly contextual and fact-specific”, and the Tribunal has considerable discretion to award an amount it deems necessary to compensate a person who has been discriminated against: Gichuru at para. 256; University of British Columbia v. Kelly, 2016 BCCA 271 at paras. 59-64.
[124] I turn first to the nature of the discrimination. While Hilton did not explicitly terminate Mr. Gbedze’s employment, the effect of failing to accommodate him was the same. He was unable to return to work to earn an income. The loss of work has been recognized by this Tribunal as the “ultimate employment-related consequence”, and such cases often attract the top end of the Tribunal’s awards given the central significance of a person’s employment to their financial and emotional wellbeing: Nelson v. Goodberry Restaurant Group Ltd. dba Buono Osteria and others, 2021 BCHRT 137 at para. 129.
[125] Next, I consider the social context of the complaint and Mr. Gbedze’s vulnerabilities. Situating the discrimination in its social context helps the Tribunal to “consider whether any social forces heightened the power imbalances between the parties or worsened the specific effect that the discrimination had on a complainant”: Bayongan v. Shimmura and another, 2023 BCHRT 27 at para. 74.
[126] Mr. Gbedze came to Canada as a refugee, and up until the discrimination, Hilton had been his only employer in this country. He worked in the same position at Hilton for over seventeen years. He was physically disabled, still experiencing considerable pain, and no longer able to work in the profession in which he had gained all his Canadian work experience. Mr. Gbedze was particularly vulnerable given the power imbalance of an employer-employee relationship: Malin v. Ultra Care and another (No. 2), 2012 BCHRT 158 at para. 198.
[127] Finally, I consider the effect of the discrimination on Mr. Gbedze, which in this case was significant. Mr. Gbedze said he experienced psychological distress, had trouble sleeping, and expressed that he contemplated suicide. He says he felt humiliated and unwanted by Hilton. He testified that not having an income meant that he could not support his family, including his dependent son, and was forced to rely on the generosity of friends and family for support. Ms. Moughan, for example, testified that she has provided Mr. Gbedze with significant financial assistance over the years, which has resulted in her own financial hardship. Mr. Gbedze spoke of the pain he felt for not being able to buy his son a bicycle or put him in golf lessons. He also described being asked by his family abroad to send money to support a dying relative, which he was unable to do, and feeling awful after learning that she died a few days later. Finally, he said could not afford the rehabilitation required for his knee, which further aggravated his disability.
[128] Mr. Gbedze seeks $270,000 for injury to dignity. He seeks a further $250,000 for negligence and pain and suffering, however this is not available under s. 37 of the Code. With all due respect to Mr. Gbedze, the amount he seeks far exceeds what the Tribunal has ever awarded even in the most egregious of cases, and I do not find that his evidence substantiates an award of this magnitude. Hilton has not made submissions on this issue, and neither party has provided me with case law for assistance.
[129] There is no cap on an injury to dignity award under the Code: Gichuru at para. 253, and I am not bound by ranges established by previous cases: University of British Columbia v. Kelly, 2016 BCCA 271 at para. 60. The assessment is fact-specific.
[130] Nevertheless, taking a principled approach in view of the circumstances of this case, I am informed by similar cases in which the Tribunal has made significant injury to dignity awards.
[131] In Kerr v. Boehringer Ingelheim (Canada) (No. 4), 2009 BCHRT 196, the Tribunal awarded the complainant $30,000 after finding that the complainant’s employer failed to accommodate her to the point of undue hardship, resulting in the complainant resigning from her employment. There, the injury to dignity was compounded by the length of time that the employer failed to accommodate the complainant, which meant that she could not work for four years. While these circumstances are similar to Mr. Gbedze’s, the length of the discrimination in Kerr was significantly longer. I am also mindful that this complaint is 16 years old, and the Tribunal’s awards have tended to increase over time: Benton v. Richmond Plastics, 2020 BCHRT 82 at para 78.
[132] In Kasagoni v. J. Singh Enterprises dba Willingdon Husky and another (No. 3), 2023 BCHRT 65, the Tribunal found that the employer had intentionally underpaid the complainant for two years and then terminated her employment after a workplace injury she reported to WorkSafeBC. The impact of the discrimination on the complainant in that case, a new immigrant to Canada who was relying on her employment for her permanent residence application, was very serious and long-lasting. The Tribunal awarded her $35,000 for injury to dignity.
[133] More recently, in Flynn v. DF Architecture Inc. (No. 2), 2025 BCHRT 81, the Tribunal awarded the complainant $25,000 after finding that the employer failed to accommodate him, leading to his resignation. While the complainant in that case was a new employee, the award recognized the significant effect of the discrimination on the complainant, as well as the challenging context of the pandemic. While these circumstances are also similar to Mr. Gbedze’s, I find that his particular vulnerabilities and the context of his long-term employment warrant a higher award.
[134] In consideration of Mr. Gbedze’s particular circumstances, I am satisfied that a significant award of $32,000 is appropriate for his injury to dignity, feelings and self-respect.
E. Expenses
[135] Mr. Gbedze seeks compensation for several expenses; however, I do not find that any of them relate to the discrimination found in this complaint.
[136] First, he seeks $700,000 for “employer embezzlement”. Mr. Gbedze did not explain what this refers to, and I find it is clearly outside of the scope of this complaint.
[137] Next, he seeks compensation for physiotherapy and rehabilitation related to his knee injury, in the amount of $57,600. In addition, he seeks a further $12,000 for “gym and fitness as required.” These expenses are not compensable because the discrimination I have found in this case relates to a failure to accommodate Mr. Gbedze’s disability, not that Hilton is responsible for Mr. Gbedze’s knee injury. Even if proven, causing a physical disability, in and of itself, is not discrimination under the Code: Jardine v. Interior Health Authority (No. 2), 2022 BCHRT 7 at para. 86. Furthermore, the issue of Mr. Gbedze’s workplace injury has already been addressed by WorkSafeBC.
[138] Finally, Mr. Gbedze seeks $791,000 for general expenses over 113 weeks, from January 1, 2023, to March 2025, when this complaint was heard. This amount is based on $7000 per week, however, he has not delineated how this total is calculated, and he did not provide evidence on what is included in this amount. Nevertheless, I understand this to be a request for compensation for general living expenses. I did not hear any evidence on how these expenses were incurred because of the discrimination; rather, these expenses would have presumably been incurred regardless of the discrimination. The fact that Mr. Gbedze was required to seek financial assistance from friends and family and otherwise incur debt during this period is related to his loss of wages, which has already been assessed elsewhere in this decision.
[139] Accordingly, I decline to make an award for any expenses incurred as a result of the discrimination.
F. Interest
[140] The Tribunal has the discretion to award interest on awards and regularly does so. An award of interest is part of the compensatory nature of the Tribunal’s awards, recognizing that but for the discrimination a complainant would have had the use of the money now awarded. The interest places the complainant in the economic position they would have been in but for the discrimination: Vasil v. Mongovius and another (No. 3), 2009 BCHRT 117.
[141] I order Hilton to pay Mr. Gbedze pre and post judgement interest on the wage loss award, and post-judgement interest on the order for compensation for injury to dignity, feelings and self-respect in accordance with the provisions of the Court Order Interest Act.
G. Other Remedies
[142] The Tribunal may require a respondent to take specific steps to address the effects of a discriminatory practice and may require a respondent to adopt and implement an employment equity program or other special program: Code, ss. 37(2)(c)(i) and 37(2)(c)(ii).
[143] Mr. Gbedze asked that these remedies be awarded but did not make any submissions in relation to ordering Hilton to provide him with any right, opportunity, or privilege lost because of the discrimination, or an order for Hilton to adopt an employment equity program. I therefore decline to make any such order.
[144] Finally, Mr. Gbedze asks that the Tribunal order Hilton to conduct anti-discrimination training for its management team. In my view, this is not necessary. In the evidence submitted by the respondent during the hearing of this complaint was a letter to the complainant, dated June 3, 2024, from Hilton’s current General Manager. The letter requests Mr. Gbedze to provide a “functional assessment report” from his physician for them to assess whether he can return to work, with or without accommodations. It requests that his doctor “indicate any accommodations that might be necessary to facilitate his return to work (e.g., modified or graduated duties/hours and/or functional restrictions).” It concludes with an offer to pay any fee associated with the medical examination.
[145] While this evidence did not form part of my accommodation analysis, given how far outside the scope of this complaint it was sent to the complainant and neither party referred to it in their submissions, it is relevant here. This letter suggests that Hilton’s understanding of its duty to accommodate has evolved. I am confident that this evidence, along with this decision and the orders I have made, are sufficient for Hilton to understand their legal obligations under the Code with respect to disability-related accommodation. I have no reason to believe that Hilton will repeat the discrimination which occurred in this case.
VI Orders
[146] I have found that Hilton discriminated against Mr. Gbedze in his employment based on his physical disability, in violation of s. 13 of the Code. Accordingly, I make the following orders:
a. I declare that the Respondent’s conduct contravened s. 13 of the Code: s. 37(2)(b).
b. I order the Respondent to cease the contravention and refrain from committing the same or similar contraventions: Code, s. 37(2)(a).
c. I order the Respondent to pay Mr. Gbedze the following:
i. $16,617.91 as compensation for wages lost because of the discrimination: Code, s. 37(2)(d)(ii).
ii. $32,000 as compensation for injury to his dignity, feelings, and self-respect: Code, s. 37(2)(d)(iii).
d. Pre and post judgement interest based on the rates set out in the Court Order Interest Act.
[147] I thank Mr. McLean for his vigorous advocacy on behalf of Hilton, and Mr. Gbedze’s efforts on his own behalf. I hope this decision brings the desired closure to the parties.
Theressa Etmanski
Tribunal Member