Van Vugt v. Donnelly Landscapes Ltd. and another (No. 2), 2025 BCHRT 229
Date Issued: September 11, 2025
File: CS – 001174/20003
Indexed as: Van Vugt v. Donnelly Landscapes Ltd. and another (No. 2), 2025 BCHRT 229
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:
Susan Van Vugt
COMPLAINANT
AND:
Donnelly Landscapes Ltd. and Jens Sigvardt
RESPONDENTS
REASONS FOR DECISION
Tribunal Member: Amber Prince
Counsel for the Complainant: Fiona McFarlane
Agent for the Respondent: Jens Sigvardt
Hearing Dates: October 7, 8, 9 and 10, 2024
Written Closing Submissions December 11, 2024
Location of Hearing: Video conference
I INTRODUCTION
[1] This is a decision on the merits of Susan Van Vugt’s complaint after a hearing.
[2] Ms. Van Vugt’s complaint arises from her employment at Donnelly Landscapes Ltd. [Donnelly], owned by Jens Sigvardt. Ms. Van Vugt alleges that Donnelly and Mr. Sigvardt discriminated against her based on physical and mental disability when she took two medical leaves from work. She took the first medical leave for eye surgery and alleges that the eye surgery is a physical disability protected under the Human Rights Code. She took the second medical leave after a difficult meeting at work. She alleges that her symptoms, which led to the second medical leave, are a mental disability protected by the Code.
[3] Ms. Van Vugt alleges that during and between her medical leaves, Mr. Sigvardt and Donnelly: made her work, communicated with her inappropriately, unfairly criticized her work performance, and ultimately terminated her employment due to her medical leaves.
[4] There is no dispute that Ms. Van Vugt took the two medical leaves from work. However, Mr. Sigvardt disputes that he or his company discriminated against her in connection with the medical leaves. He says that he and his company communicated with her appropriately during her medical leaves, that there were issues with her work performance, and that she was fired because of the work performance issues, not her medical leaves.
[5] I need to decide whether Ms. Van Vugt has proven that Donnelly and Mr. Sigvardt discriminated against her in her employment based on physical or mental disability, in breach of s. 13 of the Code. This case turns on whether Ms. Van Vugt has proven that her eye surgery leading to the first leave, and symptoms leading to the second leave, are disabilities protected under the Code.
[6] For the reasons that follow, I find that Ms. Van Vugt has not proven that she had a physical disability or mental disability protected by Code. As a result, I dismiss the complaint under s. 37(1) of the Code. I explain the reasons for my decision in the analysis section below. Before I do, I address a preliminary issue – Mr. Sigvardt’s application to make an additional closing submission.
II Mr. Sigvardt’s application to file a sur-reply
[7] After I heard all of the evidence at the hearing, the parties agreed to provide written closing submissions. Their submissions followed the usual process. First, Ms. Van Vugt filed her closing submission, then Mr. Sigvardt had an opportunity to respond to that submission. Finally, Ms. Van Vugt had an opportunity to file a reply to anything new raised in Mr. Sigvardt’s closing submission. Mr. Sigvardt applies to file an additional closing submission, commonly referred to as a sur-reply under Rule 28(5). Below, I explain why I allow Mr. Sigvardt’s sur-reply in part.
[8] The Tribunal may allow a party to sur-reply to address a new issue raised in the other party’s reply, or to address new information that was not available to a party when they filed their submission in the usual course. The overriding consideration is whether fairness requires an opportunity for sur-reply: Rule 28(5); Simpkin v. Stl’atl’imx Tribal Police Board, 2014 BCHRT 255, para. 21; Tuson v. The Board of Education of School District No. 5 (No. 4), 2020 BCHRT 195, para. 24.
[9] Here, Mr. Sigvardt seeks to sur-reply on three arguments in Ms. Van Vugt’s reply. Ms. Van Vugt argued in her reply that: (1) Mr. Sigvardt could not rely on any documents in his closing response which were not admitted at the hearing: reply, paras. 2-3; (2) he could not attribute actions, thoughts, and feeling to Ms. Van Vugt in his closing response because he did not confront Ms. Van Vugt about those issues at the hearing: closing reply, para. 5; and (3) a statement at paragraph 39 of Mr. Sigvardt’s response should be given no weight because there was no evidence at the hearing to support it: reply, para. 8.
[10] I allow Mr. Sigvardt’s sur-reply to the extent he clarifies that, in his response, he did refer to admissible evidence but gave the wrong citation to that evidence. Ms. Van Vugt acknowledges, in her response to the sur-reply, that based on Mr. Sigvardt’s correction, he did reference admissible evidence in his response: sur-reply response, para. 3.
[11] Mr. Sigvardt was only alerted to this issue when Ms. Van Vugt raised it in her reply. Without his sur-reply, the Tribunal could be left with the misunderstanding that he cited inadmissible evidence in his response and, as a result, discount those submissions. That is a potential unfairness to Mr. Sigvardt, remedied by allowing his sur-reply in this regard.
[12] The other arguments Ms. Van Vugt makes in her reply are not new. Instead, those are arguments about the weight the Tribunal should give to some of Mr. Sigvardt’s closing response. These arguments are in direct response to the arguments Mr. Sigvardt made in his closing response. In other words, they are properly responsive to Mr. Sigvardt’s closing response: Miller v. British Columbia Housing Management Commission, 2024 BCHRT 149, para. 34. That is the purpose of a reply in the Tribunal’s process: Tuson, para. 24. Such reply arguments are part of the Tribunal’s usual process, do not qualify as new issues or information under Rule 28(5), and are not unfair to Mr. Sigvardt.
[13] Mr. Sigvardt’s application to file a sur-reply is allowed to the extent it corrects his reference to evidence that was admitted at the hearing. To the extent that Mr. Sigvardt’s sur-reply addresses Ms. Van Vugt’s proper reply arguments, I disregard those aspects: Paige v. HUB International and another, 2010 BCHRT 243, para. 6.
[14] Next, I set out the background and events giving rise to Ms. Van Vugt’s complaint.
III BACKGROUND AND EVENTS
[15] Mr. Sigvardt is the president and sole director of Donnelly, a landscaping company. It primarily provides landscaping to stratas.
[16] Ms. Van Vugt was employed by Donnelly as a sales representative from October 1, 2017, to September 5, 2019. She worked 40 hours a week, Monday to Friday, but at times her hours fluctuated to meet with clients on evenings and weekends as needed. Her role involved providing quotes, estimates, and sales to stratas for the landscaping work. At times she worked from the office, at other times she met clients and prospective clients at strata complexes to have a better understanding of the landscaping needs.
[17] Ms. Van Vugt reported to the operations manager, Asker Cader. He also oversaw the crews who performed the landscaping.
A. The events leading up to Ms. Van Vugt’s eye surgery on August 19, 2019
[18] In April 2019, an ophthalmologist diagnosed Ms. Van Vugt with advanced glaucoma, prescribed her eye drops, and recommended a type of laser eye surgery to address the glaucoma: Exhibit 1, Tab 2, p. 4-5. Ms. Van Vugt began using the eye drops and continued her usual work schedule until the surgery could be arranged.
[19] From April to June, 2019, Mr. Sigvardt managed Donnelly but also attended to the needs of two family members with serious medical conditions. In July 2019, he decided to hire a general manager, Ken Findley, to help him with managerial tasks including human resources.
[20] In July 2019, after hiring Mr. Findley, Mr. Sigvardt took what he described as his “first real vacation” with family. While he took his phone with him to address work calls, he believed that Ms. Van Vugt, Mr. Cader, and Mr. Findley could competently carry on Donnelly’s business in his absence.
[21] On July 10, 2019, a strata council president, WA, emailed Mr. Cader asking for a landscaping quote for a strata complex: Exhibit 2, p. 123-124.[1] The parties referred to the complex as the Semiahmoo. Specifically, WA was looking for a plan and quote with respect to shrub trimming, possible shrub replacement, and replacement of dead trees.
[22] On July 22, 2019, Ms. Van Vugt met WA at the Semiahmoo to understand the strata’s landscaping needs to put together a landscaping proposal and quote.
[23] On July 29, 2019, WA emailed Ms. Van Vugt to ask for an update on the landscape proposal and quote: Exhibit 2, p. 121. However, Ms. Van Vugt was on vacation from July 29 until August 7, 2019.
[24] On August 7, 2019, Ms. Van Vugt replied to WA explaining that she had just returned from vacation and would have the landscaping proposal and quote to WA the next day, August 8. WA replied within the hour, copying Mr. Cader stating: “Your report will be greatly appreciated tomorrow”: Exhibit 2, p. 120-121.
[25] At 2:20pm, on Friday, August 16, 2019, Ms. Van Vugt emailed WA stating that the landscaping crew had removed dead and dying shrubs, that she was arranging for someone to assess whether the trees could be saved, and that she would have a quote to WA “by the end of this weekend”, or by August 18, for plant replacement: Exhibit 2, p. 120.
[26] At 4:40pm on August 16, WA emailed Ms. Van Vugt to confirm whether the shrubs were trimmed, to get an update on the shrub removal, and a quote for their replacement. Mr. Findley replied to WA’s email at 5:06pm the same day, stating that the regular maintenance had been done, the crew was in the process of removing dead trees, and the shrub trimming would occur at the next site visit: Exhibit 2, p. 119-120.
[27] At 5:40pm, on August 16, 2019, Ms. Van Vugt texted Mr. Findley to tell him that she had just finished quotes for Monday as she needed to have eye surgery on Monday August 19 and would need to take Monday as a sick day. She expected to be back at work on Tuesday, August 20 but was “not sure” about that: Exhibit 2, p. 45. Mr. Findley responded: “All good.”
B. Ms. Van Vugt’s eye surgery and aftermath
[28] At the hearing, there was some confusion about when Ms. Van Vugt’s eye surgery occurred. As discussed below, I find it occurred on Monday, August 19, 2019, and Ms. Van Vugt took that day as a sick day.
[29] On August 19, at 5:42pm, WA emailed Mr. Findley, copying Mr. Cader, and Ms. Van Vugt: Exhibit 2, p. 119. WA asked if the dead trees would be replaced at the same time as removal because a strata owner next to the trees had a concern for their privacy without tree coverage. WA also requested that the shrub trimming take place by August 23. Finally, WA asked Ms. Van Vugt to “follow up with the full scope of landscaping going forward” because the Strata Council was meeting in the near future. WA expressed disappointment that Ms. Van Vugt said she would have a landscaping proposal for WA by August 8, but by August 19, WA still did not have it.
[30] Around 8:18am on Tuesday, August 20, 2019, Mr. Cader called Ms. Van Vugt for an update on the Semiahmoo landscaping plan. He understood that Ms. Van Vugt had the eye surgery the day before, and was ready to work on August 20, given her indication that she expected to be back to work by Tuesday. Mr. Cader also wanted to address the concerns raised in WA’s email on Monday evening. He believed Ms. Van Vugt completed the landscaping plan for Semiahmoo sometime over the weekend because on Friday, August 16 she told WA she was going to do that and told Mr. Findley that she had finished some quotes for Monday.
[31] On Ms. Van Vugt’s account of the call she told Mr. Cader that she could not see her computer because of the eye surgery. Her evidence was that Mr. Cader told her “just get it done”, meaning the Semiahmoo landscaping plan, and then hung up. On Mr. Cader’s account of the call he learned that Ms. Van Vugt had not completed the Semiahmoo landscaping plan, was defensive about, but said she would handle it.
[32] At 8:56am on August 20, 2019, Ms. Van Vugt texted Mr. Cader asking him for WA’s number. Mr. Cader responded with the number three minutes later: Exhibit 2, p. 42.
[33] At noon on August 20, 2019, Ms. Van Vugt texted Mr. Sigvardt with: “i refuse to be yelled at spoken rudely by [Mr. Cader]. here is a doctors note”: Exhibit 2, p. 56. Ms. Van Vugt included a doctor’s note dated August 20, 2019, which stated that Ms. Van Vugt had laser treatment to her eyes for a medical condition and required two days of recovery time. Ms. Van Vugt sent a duplicate of that text and doctor’s note to Mr. Findley on August 20 at 12:02pm: Exhibit 2, p. 45.
[34] Sometime on August 20, 2019, while working at a job site, Mr. Sigvardt had a heart attack, required urgent medical attention, and was hospitalized for four days. Once released from hospital he was told to “take it easy” and stop working for two weeks. Mr. Sigvardt did not entirely stop working but he could not address the Semiahmoo issues or Ms. Van Vugt’s text to him right away. While he was incapacitated, he left Mr. Findley and Mr. Cader in charge.
[35] At 5:35pm on August 20, Mr. Cader texted Ms. Van Vugt to ask whether the quote had been finished for Semiahmoo. At 8:15pm, Ms. Van Vugt had her daughter respond, texting that no the quote was not done, but “will get done.” Mr. Cader responded that the quote needed to get done ASAP because Ms. Van Vugt had promised WA it would be done by August 8. Ms. Van Vugt or her daughter responded immediately with “bye”: Exhibit 2, p. 42.
C. The August 28, 2019 meeting and Ms. Van Vugt’s second medical leave
[36] Ms. Van Vugt resumed her regular work hours on Monday, August 26, 2019. On the morning of Wednesday, August 28, 2019, Mr. Findley called her into a meeting with himself and Mr. Cader to discuss her work performance. At the hearing, Ms. Van Vugt and Mr. Cader agreed that Mr. Findley led the meeting and raised as issues: the appropriateness of Ms. Van Vugt’s work attire, tardiness, and her sales performance. Ms. Van Vugt refuted each of these allegations. During the meeting, Mr. Findley issued a written warning to Ms. Van Vugt, but only with respect to the tardiness: Exhibit 2, p. 7. Ms. Van Vugt acknowledged receipt of the written warning but did not agree to its contents.
[37] On Ms. Van Vugt’s account of the August 28 meeting, Mr. Findley was aggressive and confrontational in the meeting. Her evidence was that Mr. Findley raised his voice, cut her off, and refused to listen to her. She described feeling shocked, and that the allegations about her were unfair, in part, because Mr. Findley had not worked with her long.
[38] On Mr. Cader’s account, the tone of the meeting was professional, and that at no point was Mr. Findley aggressive or confrontational. He also gave evidence that there were concerns with Ms. Van Vugt’s performance, such as her delay on the Semiahmoo landscaping plan. On cross-examination, Mr. Cader acknowledged that Mr. Findley is a big and loud guy, and that Ms. Van Vugt could have reasonably perceived Mr. Findley as raising his voice in the meeting.
[39] After the meeting, Ms. Van Vugt was upset, left work, and did not return.
[40] At 7:39pm on August 29, 2019, Ms. Van Vugt sent an email to Mr. Sigvardt and Mr. Findley stating she would be on a further medical leave until September 29, 2019: Exhibit 2, p. 11. She attached a medical note from Dr. Ibrahim stating: “Ms. Van Vugt is unable to work from Aug 29 to Sept 29th due to medical reasons”: Exhibit 1, Tab 6, p. 16.
[41] Ms. Van Vugt’s evidence at the hearing was that she took the second medical leave because she did not want to deal with Mr. Findley and felt bullied by him on August 28, 2019. She testified that the meeting was stressful and upsetting, that she had an upset stomach and heart palpitations as a result, and that Dr. Ibraham provided her the medical note based on the symptoms she was having after the August 28 meeting.
[42] This evidence overlaps with what she communicated by email to Mr. Sigvardt on Friday, August 30, 2019, about Mr. Findley and the August 28 meeting: Exhibit 1, Tab 7, 15. She told Mr. Sigvardt that she was sick to her stomach, on medication for it, that her stress was high, and that she could not let her job at Donnelly affect her health. She told Mr. Sigvardt that she would get back to him next week, once she had spoken with her lawyer.
[43] Mr. Sigvardt testified that between August 29 and September 5 he tried to call Ms. Van Vugt multiple times. Ms. Van Vugt acknowledged that Mr. Sigvardt texted her on Tuesday, September 3 at 4:57pm, stating, “we need to get all of this resolved. When we spoke on Friday we agreed that you would get back to me today […] please call me as your VM is full”: Exhibit 2, p. 59.
[44] Ms. Van Vugt replied to Mr. Sigvardt, by email, at 5:06pm on September 3, stating: “I am unwell. You said that you were legally able to demand resignation or termination. I don’t know how being sick can be a resignation, in any case that wasn’t my intention. I guess that means I’m fired”: Exhibit 1, Tab 10, p. 21.
[45] Mr. Sigvardt replied to Ms. Van Vugt’s email at 5:22pm on September 3 stating: “It means you should call me and let’s figure [o]ut something that works for both of us”: Exhibit 1, Tab 10, p. 21.
[46] Ms. Van Vugt emailed Mr. Sigvardt at 6:09pm on September 4, 2019, stating that her position was that she was on medical leave until September 29, she was not quitting her job, that she had done well for Donnelly, and that Mr. Sigvardt needed to make a decision about her performance and Mr. Findley’s “harassment”: Exhibit 1, Tab 11, p. 23.
[47] Mr. Sigvardt responded to Ms. Van Vugt by email at 8:00pm on September 4. He stated that he had already given Ms. Van Vugt three options: 1) Work at a solution to ensure sales continuity as the company cannot afford to be without a salesperson for five weeks; 2) resign for medical reason; or 3) termination. He said that since Ms. Van Vugt had refused to talk to him after numerous attempts, he was terminating her employment: Exhibit 1, Tab 12, p. 25.
[48] Mr. Sigvardt and Mr. Cader testified that during Ms. Van Vugt’s absence, they discovered irregularities and errors in Ms. Van Vugt’s timesheets. Mr. Sigvard added those “irregularities” as a further basis to terminate Ms. Van Vugt’s employment, as set out in his termination letter to Ms. Van Vugt on September 5, 2019: Exhibit 2, p. 6.
IV Analysis and decision
[49] Ms. Van Vugt has the burden to prove her allegations of discrimination on a balance of probabilities: Gichuru v. Pallai, 2018 BCCA 78, para. 50. To prove discrimination, Ms. Van Vugt has to meet three steps: (1) she had a physical disability or mental disability; (2) she experienced an adverse impact in her employment at Donelly; and (3) a disability was a factor in the adverse impact: Moore v. BC (Education), 2012 SCC 61, para. 33. These three steps are also referred to as the complainant’s case or the discrimination test. A complainant must meet each step in the discrimination test.
[50] If a complainant proves each step in the discrimination test, the burden shifts to the respondent to justify the adverse impacts on the complainant. If the impacts cannot be justified, the Tribunal will find that the respondent breached the Code: Moore, para. 33.
[51] Ms. Van Vugt, Mr. Sigvardt and Mr. Cader gave oral evidence about Ms. Van Vugt’s complaint allegations. Each also addressed documents which the parties entered as documentary evidence. To make findings of fact, I assess all of the evidence at the hearing, and draw on the following factors:
a. A witness’s ability to recall and describe the events in question accurately: R. v. S.A.S., 2021 BCPC 69, para. 25; Bradshaw v. Stenner, 2010 BCSC 1398, para. 186.
b. Does the witness’s account contain appropriate details of what occurred or is it vague? If there is an absence of evidence, is there a reason why? Morris v. BC Rail, 2003 BCHRT 14, paras. 16-17; Gill v. Grammy’s Place Restaurant and Bakery Ltd., 2003 BCHRT 88, para. 36.
c. The external consistency of the evidence. Is the witness’s testimony in harmony with the other evidence before me? Does the documentary evidence confirm or support the testimony? R. v. S.A.S., para. 25; Bradshaw, paras. 186-188.
d. The internal consistency of the evidence. Are there inconsistencies in a witness’s evidence? For example, does their evidence change during direct examination and cross-examination? Is there a reason for that inconsistency? R. v. S.A.S., para. 25; Asad v. Kinexus Bioinformatics, 2008 BCHRT 293, para. 801; Gill, para. 36.
e. Is there evidence produced closer in time to the events at issue? Contemporaneous evidence may offer the most accurate reflection of what occurred, rather than testimony later which may depend on a fading memory. Further, once in the litigation process, a witness may be tempted to reconstruct the evidence to put their best case forward, rather than simply relay the events as they occurred: Bradshaw, paras. 186-188; Boshoff v. Inspired Retreats, 2014 BCHRT 6, para. 8; Sahota v. WorkSafe BC (No. 2), 2019 BCHRT 104, para. 115.
f. Does the evidence relate solely to events the witness had first-hand knowledge about or observed, or is the evidence based on speculation and drawing conclusions? Douglas (Re), 2018 BCSC 1287, para. 29; F v. B.C. (Ministry of Children and Family Development), 2009 BCHRT 122, para. 100.
g. The “sense” of the evidence. When weighed with common sense, does the alleged event seem impossible or unlikely? Bradshaw, para. 186; R. v. S.A.S., para 25. In making sense of the human behaviour at issue, I must have sensitivity to individual and cultural factors and disavow any myths, stereotypes, or unfounded assumptions in my assessment: R. v. S.A.S., para. 25; de Leon Gonzales v. Western Pacific Engineering Group Ltd. and another, 2024 BCHRT 295, para. 13; K.M.N. v. S.Z.M., 2024 BCCA 70, para. 122.
[52] I turn next whether Ms. Van Vugt has proven that she had a disability protected by the Code – the first step in the complainant’s case.
D. Has Ms. Van Vugt proven a disability under the Code?
[53] Ms. Van Vugt alleges that her eye surgery, leading to the first medical leave, is a physical disability protected under the Code; and that her symptoms leading to the second medical leave she took is a mental disability protected under the Code. I will decide these allegations in turn, relying on the relevant legal principles and the evidence that was before me at the hearing. Below, I explain why Ms. Van Vugt has not proven that she had a disability under the Code.
1. Legal principles
[54] Disability is not defined in the Code. Rather, the Tribunal and Courts have developed criteria to determine what is and is not a disability, taking into account the purposes of the Code: Stevenson v. Marcon Construction, 2020 BCHRT 80, para. 7. One purpose of the Code is to remove barriers that people face in certain areas of their life because of a disability: Code, s. 3; Stevenson, para. 7. Those barriers may arise from actual functional limitations associated with a disability, or society’s response to the disability: Stevenson, para. 7. To decide whether a specific medical condition is a disability with the meaning of the Code, the Tribunal generally considers:
• the degree of impairment and functional limitations associated with the condition; and/or
• the degree of severity, permanence, and persistence of the condition; and/or
• the social perception and response to that condition, such as stigma, taking into account human rights principles.
Stevenson, paras. 7-8; Morris v. BC Rail, 2003 BCHRT 14, paras. 211 and 214; Québec (Commission des droits de la personne et des droits de la jeunesse) v. Montréal (City); Québec (Commission des droits de la personne et des droits de la jeunesse) v. Boisbriand (City), 2000 SCC 27, paras. 39 and 76-77.
[55] Next, I apply these principles to the evidence before me about Ms. Van Vugt’s stated disabilities.
2. Was Ms. Van Vugt’s eye surgery a physical disability?
[56] The answer to this question is no.
[57] There is no dispute that Ms. Van Vugt had eye surgery to treat glaucoma. There was however some confusion about when the eye surgery took place. In her complaint, Ms. Van Vugt alleged the surgery occurred on Monday, August 12, 2019. At the hearing she corrected this date. She explained that she had mixed up the dates and believed that the surgery actually occurred on Tuesday, August 20, 2019.
[58] Based on the other evidence before me, I find that Ms. Van Vugt did not have a good recollection of when she had the eye surgery. I prefer other evidence before me which indicates that she had the eye surgery on Monday, August 19, 2019.
[59] There is no dispute that at 5:40pm, on August 16, 2019, Ms. Van Vugt texted Mr. Findley to tell him that she had just finished quotes for Monday, August 19, because she needed to have eye surgery on the Monday. She told Mr. Findley that she would need to take a sick day for Monday, August 19 and expected to be back at work on Tuesday, August 20 but was “not sure” about that: Exhibit 2, p. 45. Mr. Findley responded: “All good.”
[60] This evidence shows that Ms. Van Vugt expressly told Mr. Findley that the surgery was arranged for Monday, August 19, 2019, and that she expected to resume work on Tuesday, August 20. There is no dispute that Ms. Van Vugt took a sick day on Monday, August 19, 2019, and I find she did so to undergo the laser eye surgery. This is also consistent with the uncontested evidence of what occurred the following day.
[61] Around 8:18am on August 20, Ms. Van Vugt took a phone call from Mr. Cader about the Semiahmoo project. Between 8:56 and 8:59am the two exchanged test messages. By noon on August 20, Ms. Van Vugt had texted Mr. Sigvardt with a note from Dr. Hall, dated August 20, 2019, which indicated that Ms. Van Vugt already had her laser eye surgery by then, and required two days of recovery time: Exhibit 2, p. 56.
[62] Given this evidence, it seems unlikely to me that Ms. Van Vugt had the laser eye surgery on August 20, sometime before noon. I find it more likely that Ms. Van Vugt had the eye surgery on August 19 as scheduled, and then, based on how she was feeling the following day, obtained the note from Dr. Hall to support her absence from work on Tuesday, August 20 and Wednesday August 21, while she recovered from the surgery.
[63] With respect to the duration of Ms. Van Vugt’s medical leave due to the eye surgery, her evidence was that she was unable to work for the remainer of the week – Thursday, August 22 and Friday, August 23 – because she was still not able to look at “screens” after the surgery. In support of the evidence, she supplied a brief letter from Dr. Ibrahim, dated August 22, 2019, stating that Ms. Van Vugt needed to be off work on August 22 until August 24, 2019 for “medical reasons”: Exhibit 1, Tab 4, p. 1.
[64] I accept that due to the eye surgery, Ms. Van Vugt was unable to perform her regular work duties for the week of August 19, 2019. In other words, she was impaired from her ability to work that week. However, the duration of Ms. Van Vugt’s impairment was brief. The evidence before me is that Ms. Van Vugt’s glaucoma was treated through laser eye surgery, and she recovered from the surgery within a week. There was no further evidence that Ms. Van Vugt’s recovery was delayed or impeded her work schedule beyond the week of August 19, 2019. Her medical condition was temporary and treatable.
[65] The Tribunal has said that medical conditions that a temporary and treatable do not typically qualify as a disability under the Code: Stevenson, para. 9; Lovely v. 888 Best Tourism Inc. and another, 2021 BCHRT 60, paras. 17-18; McGuire v. Level4 Technologies, 2019 BCHRT 50, para. 16; Li v. Aluma Systems and another, 2014 BCHRT 270, paras. 40-41; Winter v. Dollar Tree, 2013 BCHRT 285, para. 24. Such conditions are excluded because they do not create the type or degree of barriers to full participation in society, for which the Code’s protection is intended: Li, para. 39; Stevenson, paras. 7-9.
[66] In cases where the Tribunal has found that a temporary or treatable condition qualifies as a disability under the Code, three factors were present which are not present with respect to Ms. Van Vugt’s eye surgery.
[67] First, in the other cases, the duration of the impairment from the medical condition was multiple weeks or months: Goode v. Interior Health Authority, 2010 BCHRT 95, para. 103; Wali v. Jace Holdings, 2012 BCHRT 389, para. 83; De Medeiros v. Rovalution Automotive Ltd. and another, 2023 BCHRT 182, para. 30; Jickling v. Sweet Meadows Market (No. 2), 2024 BCHRT 325, para. 38; Anderson v. Spectrum Society for Community Living, 2025 BCHRT 80, para. 56.
[68] Second, the medical conditions were severe and/or life threatening or seriously impaired a complainant’s participation in daily life: Goode, para. 103; De Medeiros, para. 33; Jickling, paras. 37-39.
[69] Third, the medical condition resulted in an insurer’s approval and provision of short-term or long-term disability benefits: Goode, para. 103; Wali, para. 83; De Medeiros, para. 30.
[70] Further, there is no basis to find that any social stigma attached to the type of eye surgery Ms. Van Vugt had, or that she was stigmatized in any way by her employer because of the eye surgery. At 5:40pm, on Friday, August 16, 2019, when she told Mr. Findley that she needed to take a sick day for the surgery on Monday, August 19, his response was “all good.” Ms. Van Vugt faced no resistance to taking August 19 off from work to get the eye surgery.
[71] I have also considered Mr. Cader’s communications to Ms. Van Vugt on August 20, 2019, the day after Ms. Van Vugt had the eye surgery. Those communications related to his concern about Ms. Van Vugt’s outstanding quote for WA at the Semiahmoo. The communications were precipitated by WA’s email to Mr. Findley and Mr. Donnelly on August 19, that Ms. Van Vugt agreed to provide WA with a quote on August 8, 2019, that Ms. Van Vugt still had not provided the quote, and WA need that quote as soon as possible to present it to the Strata Council.
[72] I accept Mr. Cader’s evidence, that he was communicating with Ms. Van Vugt on Tuesday, August 20 because he believed she had the surgery the day before and was returning to work on Tuesday. His belief is consistent with Ms. Van Vugt’s text to Mr. Findley on Friday, August 16 that she expected to be back to work on Tuesday, August 20 after the surgery on Monday. I also find that Mr. Cader contacted Ms. Van Vugt on the evening of August 20 about the Semiahmoo because that morning Ms. Van Vugt had asked Mr. Cader for WA’s phone number and agreed to call WA about the Semiahmoo quote.
[73] Whatever the appropriateness of Mr. Cader’s communication with Ms. Van Vugt on August 20, I do not find that he subjected her to any stigma in connection with her eye surgery and related medical leave.
[74] I conclude that Ms. Van Vugt’s eye surgery, and the brief medical leave she required for it, is not a physical disability under the Code.
[75] I turn now to Ms. Van Vugt’s claim that her symptoms leading to her second medical leave qualify as a mental disability under the Code.
3. Were Ms. Van Vugt’s symptoms prompting her second medical leave a mental disability under the Code?
[76] The answer to this question is no.
[77] Ms. Van Vugt’s evidence was that she took a second medical leave because she did not want to deal with Mr. Findley, felt bullied by him at the August 28, 2019 meeting, and was having “stomach issues” and heart palpitations as a result. This evidence was consistent with what she communicated to Mr. Sigvardt in her August 30, 2019 email to him: Exhibit 1, Tab 7, 15. She also relied on a medical note from Dr. Ibrahim stating: “Ms. Van Vugt is unable to work from Aug 29 to Sept 29th due to medical reasons”: Exhibit 1, Tab 6, p. 16.
[78] Ms. Van Vugt’s evidence was that she was experiencing an upset stomach and heart palpitations after the August 28, 2019, meeting. I accept that she had those symptoms after Mr. Findley called her into a meeting, raised her work performance as an issue, and issued her a written warning. I accept her evidence that this experience was upsetting and stressful for her and led to her upset stomach and heart palpitations. I also accept that in connection with her symptoms, Dr. Ibrahim prescribed her medications, and wrote the medical note for her, indicating that she could not work for a month.
[79] While I accept this evidence, I do not find that Ms. Van Vugt’s symptoms and medical note are enough to show a mental disability under the Code. I come to this conclusion for several reasons.
[80] First, Ms. Van Vugt attributed her “upset stomach” and “heart palpitations” to stress following the August 28 meeting. But stress, and its symptoms, is not enough to show a disability under the Code. Stress, in itself, is not a disability within the meaning of the Code: Enoch v. Caretenders Inc. and another, 2023 BCHRT 211, para. 40; Naqvi v. WSP Canada Inc. (No. 2), 2023 BCHRT 9, para. 17; Vanderveen v. Heritage Steel Sales, 2019 BCHRT 132, para. 40; Matheson v. School District No. 53 (Okanagan Similkameen) and Collis, 2009 BCHRT 112, para. 14. This includes circumstances where stress results from an employer investigating alleged work performance problems, or from a problematic relationship with a supervisor: Matheson, para. 14; Mandryk v. Anmore (No. 3), 2015 BCHRT 108, para. 106.
[81] Second, Ms. Van Vugt did not provide any evidence that her upset stomach and heart palpitations were due to a specific medical condition or had a degree of severity or permanence. Dr. Ibrahim’s medical note does not assist Ms. Van Vugt in this regard. All that it sets out is that Ms. Van Vugt needed to take a leave from work for “medical reasons” for a month.
[82] Third, taking a leave from work for “medical reasons” is not enough to prove a disability under the Code. Employees may be absent from work for a variety of health issues that do not amount to disabilities under the Code: Anderson, para. 47; Goode, para. 105.
[83] Fourth, the fact that Ms. Van Vugt may have been prescribed medications during her second leave is not enough to prove a disability under the Code because medications may be prescribed for many reasons: Dow v. Summit Logistics and RWU Local 580, 2006 BCHRT 158, para. 18.
[84] Finally, I accept Mr. Sigvardt’s evidence, that he was attempting to communicate with Ms. Van Vugt between August 29 and September 5, 2019 to figure out a plan that worked for both of them during her medical leave. Whatever the appropriateness of his communication attempts and actual communications with Ms. Van Vugt, I do not find that he subjected to her to any stigma because of her symptoms leading to her second medical leave. I find his concern was solely about figuring out a plan that worked for his company and Ms. Van Vugt after she told him she was taking a medical leave. I have no other basis to conclude that an upset stomach and heart palpitations, assessed separately or together, are a basis on which a person may face stigma.
[85] For these reasons, Ms. Van Vugt has not proven that her symptoms prompting the second medical leave amounted to a disability protected by the Code. In arriving at this conclusion, I acknowledge Ms. Van Vugt’s belief that Mr. Findley unfairly criticized her work performance and did so in aggressive manner. I accept that Ms. Van Vugt is sincere in these beliefs, but it is not necessary for me to make any findings in this regard. Even if I found that Mr. Findley was unfair and aggressive to Ms. Van Vugt, that does not change Ms. Van Vugt’s obligation to prove that her symptoms, leading to the second medical leave, and flowing from her meeting with Mr. Findley, was a mental disability protected by the Code.
[86] Ms. Van Vugt has not proven that she had a physical disability or mental disability protected under the Code. Because she cannot connect any adverse impacts she may have experienced at work to a disability protected by the Code, her complaint cannot succeed on the first step of the discrimination criteria.
V ORDER
[87] Ms. Van Vugt has not proven her complaint of discrimination against Donnelly and Mr. Sigvardt, and I dismiss it: Code, s. 37(1).
Amber Prince
Tribunal Member
[1] I have used initials to refer to WA, a third party to this complaint. I do not see a public interest in publishing the full name of this third party: Campbell v. Vancouver Police Board (No. 4), 2019 BCHRT 275, para. 7.