Worker A v. Fraser Health Authority, 2025 BCHRT 250
Date Issued: October 15, 2025
File: CS-007443
Indexed as: Worker A v. Fraser Health Authority, 2025 BCHRT 250
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:
Worker A
COMPLAINANT
AND:
Fraser Health Authority
RESPONDENT
REASONS FOR DECISION
APPLICATION TO DISMISS A COMPLAINT
Section 27(1)(c)
Tribunal Member: Devyn Cousineau
Counsel for the Complainant: D. Michael Bain, KC
Counsel for the Respondent: Jessica S. Fairbairn and Madeline Lusk
I INTRODUCTION
[1] Worker A worked for the Fraser Health Authority. During the COVID-19 pandemic, working conditions became increasingly stressful and Worker A’s mental health suffered. She felt that her manager was disrespecting her, and work was not distributed fairly. She was overwhelmed. Shortly after a meeting with her manager where he characterized some of her conduct as “insubordination”, Worker A went off work due to illness and never returned. In this human rights complaint, she alleges that Fraser Health discriminated against her based on a mental disability when it failed to inquire about her declining health and reduce her workload. She says this is a violation of s. 13 of the Human Rights Code.
[2] Fraser Health asks the Tribunal to dismiss this complaint because it has no reasonable prospect of success: Code, s. 27(1)(c). The application is granted.
[3] There is significant evidence to support that Worker A’s mental health was negatively affected by her work during the pandemic, with terrible consequences for her and her family. However, respectfully, the evidence could not support a finding that Fraser Health discriminated against Worker A. This is because Worker A has not identified any disability-related adverse treatment or impacts in her employment. This is necessary to trigger any corresponding duties by Fraser Health to inquire about and/or accommodate her disability-related needs. Even if those duties were triggered, Fraser Health is reasonably certain to prove that it gave Worker A an opportunity to identify any disability-related needs and she did not do so. In those circumstances, its duties in the accommodation process did not arise. The complaint is dismissed.
[4] I begin with Worker A’s application to anonymize her name in this decision.
II APPLICATION TO LIMIT PUBLICATION
[5] Worker A applies to limit her name in any published decision. The application is granted.
[6] Complaints at Tribunal are presumptively public: Mother A obo Child B v. School District C, 2015 BCHRT 64 at para. 7. The Tribunal has discretion to limit publication of identifying information where a person can show their privacy interests outweigh the public interest in full access to the Tribunal’s proceedings: Rules of Practice and Procedure, Rule 5(6); Stein v. British Columbia (Human Rights Tribunal), 2020 BCSC 70 at para. 64(a). The Tribunal may consider factors like the stage of the proceedings, the nature of the allegations, private detail in the complaint, harm to reputation, or any other potential harm: JY v. Various Waxing Salons, 2019 BCHRT 106 at para. 30. It may also consider whether the proposed limitation relates to only a “sliver” of information that minimally impairs the openness of the proceeding: CS v. British Columbia (Workers’ Compensation Appeal Tribunal), 2019 BCCA 406 at para. 37.
[7] In this case, Worker A’s privacy interest relates to the information that it will be necessary for the Tribunal to publish about her mental health. She wants to keep this information private. She relies on CFO v. The Organization and Others, 2020 BCHRT 126, where the Tribunal reasoned:
… weighing in favour of the Application is the CFO’s own evidence about her desire to keep details of her mental disability private: JY at para. 30; The Candidate v. Ernst & Young LLP, 2020 BCHRT 119 [The Candidate] at para. 11. The CFO notes that the Tribunal has taken notice that there is significant stigma attached to mental illness in society: Gichuru v. The Law Society of British Columbia (No. 4), 2009 BCHRT 360 at paras. 469-474. As this Tribunal said in X.P. obo J.R. v. The Hospital and The Correctional Centre, 2018 BCHRT 4, “[p]ersons who live with mental illness are often subject to stigmatization in our society despite the many fine efforts being made to increase public awareness and education around this issue” (para. 5). … [para. 28]
[8] I accept that Worker A has a privacy interest in information about her mental health. This must be balanced against the public interest in publishing her name in this decision. Considering that this is a decision dismissing her human rights complaint at a preliminary stage, I consider that the public interest in this “sliver of information” is relatively low. The public’s interest in this decision relates to the facts and the reasoning, which can be fully understood without publishing Worker A’s name and information about her mental health that she would like to keep private.
[9] I acknowledge the cases cited by Fraser Health, which refer to a “heavy onus” to establish “strong grounds” to limit publication, only where “necessary to prevent a serious risk to the proper administration of justice”: JJ v. Coquitlam School District No. 43, 2006 BCHRT 485, citing A and B v. Famous Players Inc. and C, 2005 BCHRT 432 at paras. 8 and 10; Heitner v. BC Provincial Renal Agency and others (No. 2), 2020 BCHRT 81 at para. 30. However, in my view these principles must be applied proportionately to the application before the Tribunal. In some instances – as here – they may set too high a bar.
[10] Rule 5(6) requires the Tribunal to consider whether a person’s privacy interest outweighs the public interest in access to the proceeding. To do this, the Tribunal must consider what the public interest is. Orders which would completely deprive the public of access to the Tribunal’s process (through hearings or decisions) will certainly require strong grounds and impose a heavy onus. That is because these orders strike at the heart of the goals that an open process is meant to serve, including: maintaining an effective evidentiary process, ensuring that Tribunal members act fairly, promoting public confidence in the Tribunal, and educating the public about the Tribunal’s process and development of the law: Edmonton Journal v. Alberta (Attorney General), [1989] 2 SCR 1326 at para. 61; JY at para. 25. On the other hand, in most cases, the public interest in a person’s name is more modest and so the privacy interest required to outweigh it may too be more modest. Where the goals of an open process can be met while also respecting the privacy interests of participants in the Tribunal’s process, an order for anonymization may be appropriate. In that regard, I take notice that other administrative decision makers anonymize party names in all their public decisions (for example, the Workers’ Compensation Tribunal and Residential Tenancy Branch). In doing so, they continue to publish reasons that allow meaningful public access to their proceedings.
[11] In this case, Worker A has presented more than a “bare assertion of harm”: JY at para. 30(d). She has invoked her indisputable privacy interest in information about her mental health. Given the narrow order she is seeking, I am satisfied that this interest is enough to outweigh the public interest in publishing her name in this decision. Accordingly, in these reasons I have anonymized the complainant’s name to “Worker A”.
III ISSUES
[12] Fraser Health applies to dismiss Worker A’s complaint on the basis that it has no reasonable prospect of success: Code, s. 27(1)(c). The onus is on Fraser Health to establish the basis for dismissal.
[13] Under s. 27(1)(c), the Tribunal considers all the evidence to decide whether “there is no reasonable prospect that findings of fact that would support the complaint could be made on a balance of probabilities after a full hearing of the evidence”: Berezoutskaia v. British Columbia (Human Rights Tribunal), 2006 BCCA 95 at para. 22, leave to appeal ref’d [2006] SCCA No. 171. The Tribunal must base its decision on the materials filed by the parties, and not on speculation about what evidence may be filed at the hearing: University of British Columbia v. Chan,2013 BCSC 942 at para. 77. The Tribunal does not make findings of fact.
[14] A dismissal application is not the same as a hearing: Lord v. Fraser Health Authority,2021 BCSC 2176 at para. 20; SEPQA v. Canadian Human Rights Commission,[1989] 2 SCR 879 at 899. The threshold to advance a complaint to a hearing is low. In a dismissal application, a complainant does not have to prove their complaint or show the Tribunal all the evidence they may introduce at a hearing. They only have to show that the evidence takes their complaint out of the realm of conjecture: Workers’ Compensation Appeal Tribunal v. Hill, 2011 BCCA 49 at para. 27.
[15] At the outset I must clarify the proper analytic framework for a complaint alleging disability discrimination in employment.
[16] Worker A frames her allegations of discrimination as violations of the employer’s duty to inquire and duty to accommodate. However, I agree with Fraser Health that these are not freestanding duties: Lewis v. Hour of Power Canada and another, 2018 BCHRT 251 at paras. 86-89. They are duties that arise where an employer knows, or ought to know, that an employee faces a disability-related barrier in their work. Their purpose 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 v. Syndicat des employé-e-s de techniques professionnelles et de bureau d’Hydro-Québec, section locale 2000 (SCFP-FTQ),2008 SCC 43 at para. 14. In the human rights analysis, they are considered as part of an employer’s defence.
[17] However, before the Tribunal considers a defence, Worker A must establish that she faced disability-related barriers at work. In this application, Fraser Health argues that Worker A has no reasonable prospect of proving any of the elements of her complaint:
a. Disability: Fraser Health argues that Worker A will not be able to establish that, at the time of events giving rise to the complaint, she had a disability protected by the Code.
b. Adverse impact: Fraser Health argues that Worker A will not be able to establish that she was treated or impacted adversely in her employment during the period of the complaint.
c. Connection: Fraser Health argues that Worker A will not be able to establish that a disability was a factor in any adverse treatment or impact.
Moore v. Education, 2012 SCC 61 at para. 33
[18] Given my conclusion below that Worker A has no reasonable prospect of proving a disability-related adverse impact, it is not strictly necessary to go on to consider Fraser Health’s defence. However, I do so for the sake of completeness, focusing on Worker A’s arguments about Fraser Health’s duties to inquire and accommodate her: British Columbia (Public Service Employee Relations Commission) v. British Columbia Government and Service Employees’ Union (Meiorin Grievance), 1999 CanLII 652 (SCC), [Meiorin] at para. 54. I conclude, in the alternative, that Worker A’s complaint has no reasonable prospect of success because Fraser Health is reasonably certain to prove a defence: Purdy v. Douglas College, 2016 BCHRT 117 at para. 50.
[19] I begin with a brief background of the events giving rise to the complaint. In doing so, I rely on the material submitted by the parties. I set out only what is necessary to explain my decision. I make no findings of fact.
IV BACKGROUND
[20] Worker A has worked for Fraser Health since January 2003. During the relevant time, she was an “Environmental Health Officer” [EHO]. In that role, she was assigned to a designated region [District] within Fraser Health. Within that District, she was responsible for:
a. routine inspections of businesses and events to ensure compliance with public health standards and legislated requirements [Routine Work], and
b. responding to complaints or inspecting new facilities [Demand Work]. Demand Work took priority over Routine Work.
[21] Worker A says she loved her work, and felt that it allowed her to contribute to her community in a meaningful way. She has no disciplinary history.
[22] Beginning in 2015, Worker A was supervised by a person I will refer to as the Manager. It appears undisputed that this could be a difficult relationship. From Worker A’s perspective, the Manager was not an effective manager. She says he had a temper, and expected unquestioning compliance with his directives. She says he was “often dismissive and would overlook and put down ideas from [her] and other EHOs where they did not align with his own”. From the Manager’s perspective, Worker A was difficult to work with and would use disrespectful language to voice her disagreement with his decisions.
[23] The events giving rise to this complaint took place during the COVID-19 pandemic, beginning in April 2020 and then escalating between August and October 2020.
[24] In April 2020, the Manager had to assign four EHOs to focus exclusively on COVID-19 contact tracing instead of their regular work. Given that Worker A had previously expressed concern about attending facilities without sufficient personal protective equipment, the Manager says he elected to assign her to the tracing work, which took place in a single centralized location. In response, Worker A emailed the Manager: “That will not work for me”. This was followed by a text exchange and phone call. According to the Manager, in their phone call, Worker A called him “an evil man”, “horrible,” and the “most uncaring person”. Worker A denies saying these things, but agrees that she told him that he seemed to be “uncaring by refusing to collaborate or consider seniority” when making the work assignments. The Manager also says that Worker A referred to a “medical condition” that precluded her from doing the work. Worker A does not say what this medical condition was, though it appears it may have related to migraines. In response to Worker A’s complaint, the Manager reversed his decision to reassign Worker A to contact tracing and allowed her to continue her regular work.
[25] The Manager then had to reassign the work of EHOs who had been deployed to contract tracing. He assigned Worker A her pre-pandemic District, and instructed her to work with another EHO [Worker M] to divide up outstanding work. Worker A says that the Manager gave no direction on how to do this and was unavailable for support. The Manager says that this arrangement proved ineffective and resulted in Worker A performing significantly less work than her co-workers. Worker A denies this was the case. She says that she was unable to keep up with her work, which included additional duties involving a student practicum, and was falling behind. She says she was overwhelmed and needed support.
[26] In August 2020, while Worker A was on vacation, the Manager formalized the re-distribution of work. He says that the re-distribution ensured that the work was equally divided between the workers. Worker A disagreed. She says that, at this time, she was in crisis and unable to cope with the workload. She was “coming apart”.
[27] On August 24, Worker A emailed the Manager, to express that the redistributed Districts were “not going to work going forward as these areas are way [too] large and not manageable”. In response, the Manager acknowledged the strain on resources, and that the Districts would be too large “to do much more than demand work”. Worker A followed up on September 8, expressing concern that Worker M was responsible for the changes and that she had not been consulted. She felt that the workload was not equal, and expressed:
… we need to revisit the workload issues here and find additional assistance as things are getting more and more backed up. I feel that I am now being overloaded and the work load is becoming more and more unreasonable. …
These issues must be addressed so that staff can manage and workloads are equalized.
[28] The Manager responded to this email, to clarify that he (not Worker M) had made the decision about the redistribution of work and to explain that all staff are only expected to do what they have capacity to do, prioritizing Demand Work. Worker A’s response was that the process for reassigning work was “disrespectful and not acceptable” and that “I should have been involved in that process/discussions”.
[29] On September 17, the Manager wrote to the three EHOs (including Worker A) to acknowledge “concerns with Demand Work that is coming into different areas”. To address those concerns, he asked the EHOs to fill in a spreadsheet by September 21, with information about their respective workloads. He explains that the purpose of the spreadsheet was to evaluate the workloads and ensure that the work was evenly distributed. Two of the EHOs completed the spreadsheet. Worker A did not. She says the spreadsheet was never fully explained to her and was redundant. She says it added to her workload, rather than reducing stressors. She says she was unable to complete the task due to her poor mental health. The Manager says he considered Worker A’s refusal to do this work insubordination.
[30] At 12:42 am on October 1, the Manager wrote to the staff to schedule a meeting for that morning. Worker A says that the timing of the meeting did not account for staff’s pre-existing appointments. The meeting was very short. She says that, when staff arrived at the meeting to advise that they had conflicting appointments, the Manager yelled at them, “you guys are unprofessional and need it to sort it out yourselves!”. She says that he slammed the door as he left. Worker A also says that there were files scattered over the tables, and she understood the Manager had thrown them before the meeting. This created more work for her later, to reorganize her files.
[31] For his part, the Manager says that, during this meeting, he reminded the EHOs that they were expected to behave respectfully and professionally towards each other. He referred to “unacceptable and unprofessional behaviour” which he later described as “the spreading of rumors, name calling, personal attacks, silent treatment, etc”. He says that Worker A complained that the spreadsheet was not necessary, and the other EHOs agreed.
[32] After the meeting, the Manager wrote to the staff, acknowledging that most of them felt “the spreadsheet is a waste of time” and telling them they no longer had to complete it. Later that same day, he wrote to staff again setting out another plan to distribute work.
[33] The next day, the Manager changed his mind. He says he realized the spreadsheet was the best way to gather the information he needed to distribute the work. He wrote to the staff again, asking them to complete the spreadsheet by October 6.
[34] On October 5, Worker A sent the Manager two emails. First, in response to his plan to distribute work, Worker A again expressed that she felt disrespected because she had not been included in the decision process, writing “This is disrespectful to me again as work place supposed to be inclusive/collaborating with staff” [as written]. Second, Worker A objected to being included in the Manager’s comments about unprofessional behaviour. She wrote:
I have only expressed my concerns over and over in emails about workload issues and being included in district decisions as it affects me too. It was unprofessional of you not to include me originally in these discussions, and only include [Worker M], my colleague. Again I feel you disrespected me.
Worker A left work early that day. She says she “simply could not function”. She was “overwhelmed and unwell”. She was off work until October 9.
[35] In the meantime, Worker M was expressing frustration that Worker A was assigning her work without going through the Manager. This is reflected in emails between Worker A and Worker M, where Worker A is directing Worker M to complete certain tasks and Worker M is responding that the requests should go through the Manager. The Manager says that, in one instance, he directed Worker A to do work that she then forwarded to Worker M without his knowledge or permission.
[36] By mid-October, the Manager says that he was concerned about Worker A’s “continued insubordination” in not completing the spreadsheet. He asked her to attend a meeting and suggested that she could attend with a union representative. He did not explain exactly what the meeting was about; Worker A says that she understood it to be disciplinary. For his part, the Manager says the meeting was not disciplinary but was intended to discuss Worker A’s “work performance issues”, specifically in connection with the spreadsheet.
[37] The meeting took place on October 20. Worker A attended with a shop steward. Before the meeting, the Manager prepared a written list of questions and points to review. He made handwritten notes of Worker A’s answers. Among other things, he asked Worker A questions about why she had not completed the spreadsheet or responded to various emails about it. Worker A indicated that she didn’t understand why the spreadsheet was necessary. The Manager suggested that disregarding his direction was insubordination, which Worker A said was “going way too far”. The Manager also asked questions about a particular task that he understood Worker A had not completed, which she denied.
[38] According to the Manager’s notes, Worker A expressed that she was unhappy that she had not been included in the decision about how to allocate work, and with the Manager’s management style. She indicated that she felt “bullied and harassed” and that her stress levels were high because of the pandemic. She didn’t understand why the Manager was “doing this to” her; all she wanted was for him to include her in decision making. Worker A says that she expressed in this meeting that she was “completely overwhelmed, stressed, and unable to manage the workload”. She says she pleaded for additional work support, because she could not manage. She says she explained that she was having to leave work sometimes midday because she could not carry on.
[39] On October 21, Worker A submitted a partially-completed version of the spreadsheet and took half a day of sick leave. At this point, she says she had a “complete mental and physical breakdown”, which she has never recovered from. She took sick leave on October 22, 23, 27 (partial), and 29. On October 30, she submitted a note from her doctor that said:
My patient [Worker A] has been managing her chronic stress primarily caused by her work environment, elevated workload and requirements from management quite well until recent changes were made at the end of August. Since then, her health has deteriorated.
We have initiated treatment and she has been compliant thus far. She is currently under acute stress and I feel strongly that she requires a medical leave of absence for a period of four (4) weeks…
[40] On November 3, Worker A reported that she would be taking 20 shifts off for a “pre-planned absence”. This triggered Fraser Health’s Disability Management Service team to reach out to Worker A to seek further information about her absences and ask what help she may be looking for. On November 9, Worker A informed the team that her absence was a “mental health stress leave”.
[41] Worker A has not returned to work since. Between April 2021 – March 2023, she received long-term disability benefits through Canada Life. She filed this human rights complaint on October 28, 2021.
V NO REASONABLE PROSPECT OF SUCCESS
[42] I begin with the elements that Worker A must prove to establish discrimination.
A. Disability
[43] Fraser Health argues that Worker A has no reasonable prospect of proving that she had a disability during the period of the complaint (April – October 2020). It says that the only evidence is that she was experiencing stress, which is not a disability: Kamalov v. Paladin Security Group ltd., 2024 BCHRT 285 at para. 25; Vandale v. Town of Golden and others, 2009 BCHRT 219 at paras. 38-39. As the Tribunal pointed out in Kamalov, this “includes circumstances where workplace stress results from an employer investigating alleged work performance problems, or from a problematic relationship with a supervisor”: para. 25.
[44] I am satisfied that Worker A has taken this element of her case beyond conjecture. As I understand her argument, it is that her mental health symptoms at the time were sufficiently serious and ongoing to constitute a disability, though they were not diagnosed as an adjustment disorder, with depression and anxiety, until later. There is some evidence to support this, including the affidavits from Worker A and her husband about her very poor mental health, the records of her absences from work, and her eventual complete absence culminating in a successful claim for long-term disability benefits. In addition, Worker A has submitted an expert report from 2025, in which the psychiatrist opined that, during the period of the complaint, she developed “an adjustment disorder, with missed anxiety and depressed mood”, which was severe enough that “she could not function at work”. The psychiatrist cites workplace stress as the cause of her “initial adjustment disorder, with depression and anxiety, which transformed into major depression and generalized anxiety disorder, along with social anxiety and change in demeanour and cognition”.
[45] I acknowledge some similarities with Kamalov and Vandale, but find that those cases are distinguishable. In Kamalov, the complainant relied on medical notes indicating that he had a temporary health issue, his reports to his employer that he was under constant stress and psychological pressure, and that he was designated as a person with disabilities shortly after the timeframe of discrimination: paras. 21-22. In Vandale, the complainant simply alleged that she had “stress, anxiety, personality conflicts at work, and panic attacks”. She had been denied short term disability benefits and workers’ compensation benefits, and did not submit any medical evidence: paras. 40-41. In neither of those cases did the complainants submit expert evidence to support their disability or, it appears, present evidence capable of proving that poor mental health was severe and ongoing over a long period – factors the Tribunal typically considers when determining whether a medical condition constitutes a disability under the Code: Viswanathapuram v. Canadian Alliance of Physiotherapy Regulators, 2017 BCHRT 29 at para. 40.
[46] I am not persuaded that Worker A has no reasonable prospect of proving she had a disability during the relevant time.
B. Adverse impact connected to disability
[47] Worker A has presented evidence capable of proving that her working conditions were impacting her mental health, to the point that she could no longer work. However, this is not evidence that Fraser Health discriminated against her in employment. The Tribunal has consistently held that “the fact that particular conduct results in an individual experiencing stress and anxiety, or even a mental disability, does not mean that that conduct constitutes discrimination on the grounds of mental disability”: Vandale at para. 43.
[48] To trigger the protection of the Code, Worker A is required to point to disability-related adverse treatment or adverse impact in her employment. Here I emphasise that the “adverse impacts” must arise in the complainant’s employment and not in their life generally. Adverse impacts in employment include, for example, termination, discipline, differential treatment, or working conditions that unfairly exclude a person from completing work they are otherwise able to do: Hydro-Québec at para. 14.
[49] Without more, an employee is not adversely impacted in their employment when they are assigned work or subject to management oversight. I agree with Fraser Health that “employers have the fundamental right to manage the workplace and make operational decisions they see fit, subject only to certain legal obligations”: Kondolay v. Pyrotek Aerospace Ltd, 2020 BCHRT 208 at para. 125. Employees may not agree with those decisions, and they may be bad ones that make an employee’s work harder or less efficient. However, absent some negative treatment or job-related consequence for an employee, they are not matters for this Tribunal.
[50] Here, Worker A has not pointed to any evidence capable of proving that she was singled out or subjected to differential treatment in the assignment of work by the Manager. Though she disliked his management style, and expected a higher degree of collaboration, I agree with Fraser Health that she has no reasonable prospect of proving that that she faced disability-related barriers in her employment related to the assignment of work. The undisputed evidence is that the Manager told Worker A that his expectation was that she would just do what she had capacity to do, and that she could forego Routine Work to focus on Demand Work. I say this acknowledging the evidence that Worker A’s workload, in the unique context of the pandemic, was negatively affecting her mental health.
[51] Worker A’s stronger argument relates to the October 20 meeting, which she characterises as “disciplinary or quasi-disciplinary”. As I have said, discipline is the type of adverse employment consequence that may trigger the Code’s protections if it is related to a protected characteristic.
[52] However, I agree with Fraser Health that Worker A has no reasonable prospect of proving that this meeting was disciplinary or gave rise to any job-related consequence or barrier for Worker A. It is not adverse treatment for a manager to meet with an employee to discuss work they have not completed. There is no evidence of any negative job consequences during or after the meeting. There is no evidence of discipline. I acknowledge that Worker A was invited to attend with a union representative and did so. I also acknowledge that the Manager accused her of insubordination. This may be evidence that the employer was contemplating discipline, but it is not evidence of discipline. Ultimately, the Manager did not take any further steps because Worker A went off work for medical reasons. In this circumstance, the meeting alone could not be evidence that Worker A experienced disability-related adverse impacts in her employment.
[53] This is determinative of Worker A’s human rights complaint. However, even if I had found that there was evidence capable of proving that Worker A experience disability-related adverse impacts in her employment, I would find that Fraser Health is reasonably certain to justify those impacts.
C. Bona fide reasonable justification
[54] I will not undertake the full justification analysis here but rather focus on Worker A’s primary arguments related to Fraser Health’s duty to inquire and duty to accommodate her.
[55] As I have said, the duty to inquire is triggered when an employer is contemplating action that will negatively affect an employee in their employment (i.e. discipline) and has some reason to believe that the underlying behaviour may be related to disability: Gardiner v. Ministry of Attorney General, 2003 BCHRT 41 at para. 162. In that circumstance, they are required to inquire about the reasons underlying the behaviour. This is intended to put an employee on notice and give them the opportunity to bring forward information that could support an accommodation: Central Okanagan School District No. 23 v. Renaud, [1992] 2 SCR 970. As with any obligation under human rights law, perfection is not the standard.
[56] Worker A argues that, given her complaints and the number of sick days she was taking, Fraser Health was obligated to inquire about “her medical condition, including inquiring into her medical limitations, restrictions and overall wellness”, and “the amount of sick time she had taken”. Respectfully, I disagree.
[57] The duty to inquire does not require employers to ask employees about their physical or mental health any time they may have reason to believe an employee is unwell. Such a requirement would represent an intrusive overreach that goes beyond the basic bargain of an employment contract: an employee performs work in exchange for remuneration: Hydro-Quebec at para. 14. Absent a legitimate work-related reason, an employer request for medical information would be overly intrusive and may itself constitute discrimination: Gichuru v. Law Society of BC, 2009 BCHRT 360 at paras. 560 and 565.
[58] In my view, Fraser Health is reasonably certain to prove that it fulfilled any duty to inquire when it gave Worker A the opportunity, in the October 20 meeting, to explain why she was not completing certain work. Worker A was accompanied in that meeting by a union representative. To the extent the next stage may have been disciplinary (which is purely speculative), Worker A had the chance to explain that she could not complete the work for disability-related reasons. Leaving aside the prospect of discipline, this was also an opportunity for Worker A to tell the Manager that she had a disability and needed accommodation. This information would have triggered Fraser Health’s obligations in the accommodation process: Renaud. However, there is no evidence that, at any point before her long-term medical leave, Worker A told the employer that she had a disability or that she required accommodation. In this circumstance, Fraser Health is reasonably certain to prove that its duties in the accommodation process were not triggered, and so any disability-related adverse impacts were justified.
[59] I acknowledge the evidence that Worker A was raising concerns about the distribution and amount of work, and her stress levels. However, this is not the same as bringing forward the facts necessary for an accommodation: Renaud. Critically, there is no evidence that Worker A told the employer that she had a disability and required accommodation.
[60] I agree with Fraser Health that these circumstances are similar to CFO v. Organization, 2020 BCHRT 213 and Vanderveen v. Heritage Steel Sales Ltd, 2019 BCHRT 132. In CFO, the Tribunal dismissed a complaint in which the employee alleged the employer gave her too much work even after she told them having too much work was impacting her health: para. 79. The Tribunal reasoned that “the CFO’s complaints of stress and tiredness, a heavy workload and issues with the CEO affecting her ‘health’ could not reasonably give rise to a duty to inquire as to whether she was experiencing disability-related adverse impacts in her employment” and that the employer “could not have reasonably extrapolated from the CFO’s complaints about lack of sleep, stress and ‘health’ impacts in connection with heavy workloads, tight deadlines and other concerns about the CEO that the CFO was in need of accommodation for her shoulder injury or headaches at that time”: paras. 84 and 86. Similarly, in Vanderveen, the Tribunal dismissed a complaint where the employee complained about his workload, and told the employer that it was causing him “stress and anxiety” but failed to “take the extra, necessary step of articulating to the employer that his disability was a factor in his struggle”: para. 37. I find the following passage equally applicable here:
Mr. Vanderveen’s argument that he asked for accommodation by telling Heritage that he was receiving too much work is not persuasive. Many employees may ask their employers to relieve their workload, and such requests may be warranted and entirely reasonable. However, the term “accommodation” is a term of art in human rights law. It refers specifically to the process of removing barriers in employment that relate to personal characteristics protected by the Code – inthis case, disability. According to Mr. Vanderveen’s own evidence, he did not tell Heritage that the reason he needed relief was related to his disabilities. As such, the request to relieve his workload could not properly constitute a request for accommodation. [para. 38]
Likewise here, there is no reasonable prospect that the Tribunal would find that Worker A’s complaints that the Manager was disrespecting her, that the work was unfairly distributed, and that she was stressed and overwhelmed, constituted a request for accommodation.
[61] Later, when it became apparent that Worker A required a long disability-related absence from work, the Disability Management team reached out to her to ask about her accommodation needs. However, Worker A has never been well enough to return and so the accommodation process ended there.
[62] Based on all this evidence, I am satisfied that, if Worker A could prove the elements of her case, Fraser Health is reasonably certain to establish that it fulfilled its duties to her in light of the information it had. In this circumstance, the complaint has no reasonable prospect of success.
VI CONCLUSION
[63] This is a sad case. There is a lot of evidence that Worker A took great pride in her work, and her life has been completely altered since her mental health declined in 2020 for reasons related to her working conditions at that time. However, the evidence could not support a finding that Fraser Health discriminated against Worker A in her employment. Her human rights complaint is dismissed.
Devyn Cousineau
Vice Chair