Monteith v. Ministry of Public Safety and Solicitor General (Kamloops Regional Correctional Centre), 2025 BCHRT 267
Date Issued: October 21, 2025
File: CS-005629
Indexed as: Monteith v. Ministry of Public Safety and Solicitor General (Kamloops Regional Correctional Centre), 2025 BCHRT 267
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:
Cari Monteith
COMPLAINANT
AND:
His Majesty the King in Right of the Province of British Columbia
as Represented by the Ministry of Public Safety and Solicitor General
(Kamloops Regional Correctional Centre)
RESPONDENT
REASONS FOR DECISION
APPLICATION TO DISMISS A COMPLAINT
Section 27(1)(c)
Tribunal Member: Beverly Froese
On their own behalf: Cari Monteith
Counsel for the Respondent: Joni Worton
I INTRODUCTION
[1] In November 2021, Cari Monteith made a complaint against His Majesty the King in Right of the Province of British Columbia, as represented by the Ministry of Public Safety and Solicitor General (Kamloops Regional Correctional Centre) alleging she was discriminated against regarding her employment based on mental disability contrary to s. 13 of the Human Rights Code. Specifically, Ms. Monteith alleges that the Ministry discriminated against her when it failed to continue to modify her work hours to accommodate her mental disability and then sent an embarrassing email to most of the staff that said she was required to work regular full-time hours.
[2] The Ministry denies discriminating against Ms. Monteith. The Ministry says that Ms. Monteith did not have a disability protected under the Code at the relevant time. It also says that Ms. Monteith did not experience any employment-related adverse impacts connected to her alleged disability. The Ministry says it exceeded its obligations by approving Ms. Monteith’s repeated requests for modified hours until it was reasonable to expect her to return to regular full-time hours. Last, the Ministry says the email at issue was sent in the ordinary course to only those staff who needed to know Ms. Monteith was returning to regular full-time hours.
[3] Under the Tribunal’s Case Path Pilot, the Ministry was allowed to make an application to dismiss the complaint under s. 27(1)(c) of the Code on the basis it has no reasonable prospect of success.
[4] For the following reasons, the Ministry’s application is denied. Based on the materials before me, I am not persuaded that Ms. Monteith has no reasonable prospect of proving her case at a hearing. Nor I am persuaded it is reasonably certain the Ministry will be able to establish that its conduct was justified.
[5] To make this decision, I have considered all the information filed by the parties. In these reasons, I only refer to what is necessary to explain my decision. I apologize to the parties for the length of time it has taken to issue this decision.
II Preliminary issue – scope of the complaint
[6] As a preliminary matter, the Ministry argues that Ms. Monteith has tried to improperly expand the scope of the complaint through her affidavit and response to this application. Specifically, the Ministry says that Ms. Monteith has included submissions and evidence related to allegations that have either been already appropriately addressed in another forum, were not made in the original complaint, or are irrelevant.
[7] When an application to dismiss is outstanding, a complainant must apply to the Tribunal to amend their complaint if they want to add new allegations: Tribunal’s Rules of Practice and Procedure, Rule 24(4)(b). The purpose of Rule 24(4)(b) is to ensure that a respondent who files an application to dismiss a complaint does not face a moving target: Pausch v. School District No. 34 and others, 2008 BCHRT 154 at paras. 28-29. Respondents are entitled to know the allegations against them to assess whether, or on what basis, to bring their application to dismiss the complaint: Purdy v. Douglas College and others, 2016 BCHRT 117 at paras. 35-37.
[8] At the same time, the Tribunal’s complaint forms are not the equivalent of pleadings in a civil litigation process: White v. Nanaimo Daily News Group Inc. and Klaholz, 2004 BCHRT 350 at para. 23. It is not uncommon, or a violation of the Rules, for a complainant to add new particulars of their complaint in response to an application to dismiss. The distinction between particulars regarding existing allegations and new allegations was set out in Powell v. Morton, 2005 BCHRT 282 at para. 20:
… I must consider whether the amendment contains, on the one hand, further details of the facts on which the complainant intends to rely, or whether, on the other, it constitutes an expansion of the allegations made against the respondents. If the former, it will constitute particulars; if the latter, an amendment.
[9] The complaint consists of two allegations. The first is that the Ministry discriminated against Ms. Monteith in November 2021 by requiring her to return to regular full-time hours. The second is that the Ministry discriminated against Ms. Monteith when her employer sent an email to most of the staff that said she was required to work full shifts.
[10] I have carefully reviewed Ms. Monteith’s affidavit and submission to determine if it adds particulars that provide further details about existing allegations or are new allegations. I find that details related to events surrounding the Ministry’s decision to require Ms. Monteith to return to regular full-time hours and the email sent in November 2021 are particulars. I also find that allegations unrelated to the events in November 2021, in particular regarding an email that was sent to staff in April 2021, are new allegations that, absent an application to amend the complaint, do not form part of the complaint.
[11] Last, I find that Ms. Monteith has not improperly tried to expand the scope of the complaint by referring to a workplace bullying and harassment complaint she made and various grievances. Although these matters are mentioned in her affidavit, Ms. Monteith makes it clear that they are not part of her complaint and either will be, or have been, addressed in another forum. Further, Ms. Monteith’s submission is solely focused on the two allegations in her complaint.
III BACKGROUND
[12] The background is taken from the materials filed by the parties. I make no findings of fact.
[13] In May 2007, Ms. Monteith started working part-time as a corrections officer [CO] at the Kamloops Regional Correctional Centre [KRCC]. In August 2008, she started working full-time. As a full-time CO, Ms. Monteith worked four 11.5-hour day shifts, four 12-hour afternoon shifts, four 9.5-hour day shifts, and four 5.5-hour afternoon shifts, with four days off between each four-day shift. In August 2014, Ms. Monteith was appointed to the position of correctional supervisor [CS].
[14] Ms. Monteith says that in September 2018, she saw her doctor because she was experiencing heart palpitations. She says she saw another doctor in October 2018 to address her mental health condition.
[15] In early March 2020, Ms. Monteith went on a medical leave of absence because her mental health had deteriorated. Under the collective agreement between the Government of British Columbia and the BC General Employees’ Union, BC Public Service employees are entitled to short term disability benefits through the short-term illness and injury plan [STIIP]. After the STIIP period ends, employees may apply for long term disability [LTD] benefits administered by a third-party insurer [LTD Plan Carrier]. LTD benefits are paid for the period of “total disability”, meaning the employee is completely unable to perform all the duties of their job because of an accident or sickness.
[16] If an employee’s claim for LTD benefits is denied by the LTD Plan Carrier or the Claims Review Committee [CRC], they may request a temporary modified return to work schedule under the Government’s Non-Medical Return to Work policy [Non-Medical RTW]. The Ministry says that approval for a Non-Medical RTW is discretionary, and decisions are made in consultation with the BC Public Service Agency’s Occupational Health and Rehabilitation division [OHR].
[17] After her STIIP period ended in September 2020, Ms. Monteith applied for LTD benefits based on PTSD and situational anxiety. In early October 2020, Ms. Monteith’s application was denied on the basis that she did not meet the criteria for PTSD and there was insufficient clinical evidence to suggest that her conditions and symptoms were severe enough to preclude her from performing her job duties. Ms. Monteith requested a review of the LTD Plan Carrier’s decision by the CRC.
[18] Ms. Monteith says that in January 2021, she consulted with her doctor about returning to work. She says her doctor was reluctant to clear her return to work, but she was determined to try.
[19] In March 2021, the CRC upheld the LTD Plan Carrier’s decision that Ms. Monteith did not qualify for LTD benefits as of September 2020 because she was not totally disabled from performing the duties of her own occupation [CRC Decision].
[20] In early April 2021, Ms. Monteith’s doctor cleared her return to work without any modifications. Around mid-April 2021, Ms. Monteith was informed that her return to work was subject to the “Successive Disabilities” provision of the collective agreement that applies when an employee is absent due to illness or injury during the first six months after returning from a leave after the STIIP period ends.
[21] For reasons unrelated to her medical leave of absence, Ms. Monteith returned to full-time duties as a CO around mid-May 2021. A few days later, Ms. Monteith told her supervisor she was unable to work for an undetermined period of time.
[22] In late May 2021, Ms. Monteith provided her employer with a Doctor’s Certificate that said a treatment program had been recommended and she could return to full-time duties without any modifications. In early June 2021, Ms. Monteith provided another Doctor’s Certificate that said she had limitations and restrictions due to “multiple psychological factors”. At that time, the doctor recommended a gradual return to work for Ms. Monteith with modified hours for two weeks.
[23] Between June and late August 2021, Ms. Monteith provided additional Doctor’s Certificates that recommended a gradual increase in hours from four to eight per day. Ms. Monteith says that the goal of a slow and steady increase in her work hours was to build resilience with consistent support from her mental health care team.
[24] The Doctor’s Certificate that Ms. Monteith provided in mid-October 2021 says that she had wrist pain and “psychological factors” but because she was managing eight-hour shifts, no changes were supported. Ms. Monteith says that around this time, the shift scheduling supervisor made negative comments about her leave, specifically that her hours were a “pain in the ass” to schedule and her employer was getting tired of accommodating her.
[25] In mid-November 2021, Ms. Monteith and her Union representative met with KRCC’S warden. At that meeting, Ms. Monteith was told that she was expected to return to regular full-time hours in late November 2021. In a subsequent letter, Ms. Monteith was told that the decision to end her modified hours was based on a review of the Doctor’s Certificates she had provided and took into consideration the CRC Decision.
[26] On the same day she met with the warden, KRCC’s Assistant Deputy Warden of Staffing [ADW of Staffing] sent the following email to certain email addresses at KRCC:
On November 12, 2021 Cari Monteith was given clear direction by the Warden and ADW of Staffing that effective November 27, 2021 she is to return to regular full time hours of work for her position.
[Email]
[27] Ms. Monteith says the Email was inappropriate, unusual, and sent to many recipients who did not have a job-related reason to receive confidential information about her. The Ministry disputes that and says the Email was sent in the ordinary course and only to individuals who need to know when an employee is required to return to full-time work after an extended leave.
[28] A few days after she met with the warden, Ms. Monteith provided her employer with a Doctor’s Certificate that said she was following a treatment program. The Certificate also said that Ms. Monteith was “just managing” an 8-hour shift and suggested that Ms. Monteith try working 10-hour shifts for one month and then be reassessed.
[29] A few days later, the ADW of Staffing emailed Ms. Monteith and said that he received the Doctor’s Certificate and Ms. Monteith was still expected to return to regular full-time hours. Ms. Monteith says that even though her mental health was deteriorating, she went back to working regular full-time hours in late November 2021 because she needed to earn a living.
IV DECISION
[30] The Ministry applies to dismiss the complaint on the basis that it has no reasonable prospect of success: Code, s. 27(1)(c) The onus is on the Ministry to establish the basis for dismissal.
[31] Section 27(1)(c) is part of the Tribunal’s gate-keeping function. It allows the Tribunal to remove complaints which do not warrant the time and expense of a hearing.
[32] The Tribunal does not make findings of fact under s. 27(1)(c). Instead, the Tribunal looks at the evidence to decide whether “there is no reasonable prospect that findings of fact that would support the complaint could be made on a balance of probabilities after a full hearing of the evidence”: Berezoutskaia v. British Columbia (Human Rights Tribunal), 2006 BCCA 95 at para. 22, leave to appeal ref’d [2006] SCCA No. 171. The Tribunal must base its decision on the materials filed by the parties, and not on speculation about what evidence may be filed at the hearing: University of British Columbia v. Chan,2013 BCSC 942 at para. 77.
[33] 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 [Hill] at para. 27.
[34] To prove her complaint at a hearing, Ms. Monteith will have to prove that at the material time, she had a disability protected by the Code, she was adversely impacted regarding her employment at KRCC, and her disability was a factor in the adverse impact: Moore v. British Columbia (Education), 2012 SCC 61 at para. 33. If she does that, the burden will shift to the Ministry to justify the impact as a bona fide occupational requirement. If the impact is justified, there is no discrimination.
[35] The Ministry argues that the complaint should be dismissed because Ms. Monteith has no reasonable prospect of proving her case at a hearing. It also argues that the complaint has no reasonable prospect of success because it is reasonably certain to prove its conduct was justified. I consider each in turn.
A. Ms. Monteith’s case
1. Requirement to work regular full-time hours
[36] The Ministry first argues that Ms. Monteith has no reasonable prospect of proving that at the material time she had a disability protected under the Code. The Ministry says the evidence shows a lack of a disability rather than presence of a disability. Specifically, the Ministry says that both the LTD Provider and the CRC found insufficient evidence to show that Ms. Monteith was totally disabled from performing her job duties. The Ministry says that evidence also shows that Ms. Monteith did not meet the criteria for PTSD or a pervasive mood or anxiety disorder. Last, the Ministry says that Ms. Monteith did not appeal the CRC Decision, nor did she provide evidence of a new illness after the CRC Decision or make any further applications for LTD benefits.
[37] While the evidence indicates that the LTD Plan Carrier and the CRC found that Ms. Monteith was not totally disabled from performing her job duties, that does not mean she did not have a disability protected under the Code at the relevant time. In my view, Ms. Monteith’s affidavit and documentary evidence is sufficient to take this part of her case out of the realm of conjecture. Specifically, in her affidavit Ms. Monteith says that in 2018, she started to see doctors about her mental health condition. The evidence indicates that Ms. Monteith was approved for STIIP benefits between March and September 2020. The Doctor’s Certificates indicate that Ms. Monteith required modified hours due to “psychological factors”. Last, the Psychology Assessment Report attached to Ms. Monteith’s affidavit summarizes her history of experiencing depression and anxiety dating back to 2016.
[38] The Ministry next argues that Ms. Monteith has no reasonable prospect of proving that she experienced an employment-related adverse impacts. The Ministry says all employees are required to report to work unless they are on an approved leave, STIIP, or LTD benefits. It says that even though it was not required to do so, it allowed Ms. Monteith to have a Non-Medical RTW for over five months. In my view, the Ministry’s arguments regarding this part of Ms. Monteith’s case are best considered as part of its defence.
[39] The parties do not appear to dispute that when the Ministry decided not to continue modifying Ms. Monteith’s hours, she was required to work an additional two hours per day. Ms. Monteith’s evidence is that the Ministry’s decision forced her to return to regular full-time hours while she was still recovering from her illness. Based on that evidence, I am satisfied that it would be open to the Tribunal member presiding over the hearing of this complaint to find that Ms. Monteith experienced an employment-related adverse impact.
[40] Last, the Ministry argues that Ms. Monteith has no reasonable prospect of proving a nexus between any alleged adverse impact and her disability. In support of its argument, the Ministry relies on Patterson v. B.C. (BCPSA) and others, 2013 BCHRT 269 at para. 44 in which the Tribunal dismissed a complaint under s. 27(1)(c) of the Code. In that case, the complainant alleged she was discriminated against when her employer required her to return to work after the CRC found she was not totally disabled from performing her job duties. The Tribunal dismissed the complaint against the complainant’s employer on the basis there was no reasonable prospect she would be able to prove a nexus between her alleged disability and its decision to require her to return to work. More particularly, the Tribunal said the complainant had no reasonable prospect of proving this part of her case because her employer’s decision “was not based on the fact that she had a disability but rather on the fact that the CRC panel had determined that her disability should not prevent her from carrying out her normal occupation”: at para. 44.
[41] I find that Patterson is of limited assistance to my analysis. While both cases deal with CRC decisions, they are distinguishable on both the facts and the issues raised. For example, unlike Ms. Monteith, the complainant in Patterson did not want to return to work after she applied for LTD benefits and was not seeking accommodations so she could continue to work. Further, the complaints of discrimination against the CRC, the complainant’s employer, and her union all flowed from her allegation that the CRC’s process was unfair. In this case, Ms. Monteith alleges the Ministry discriminated against her by failing to accommodate her mental disability so she could continue working.
[42] The evidence before me indicates that Ms. Monteith was still required to return to regular full-time hours after she provided a Doctor’s Certificate recommending her hours continue to be modified. In my view, that evidence is sufficient to take this part of her case out of the realm of conjecture.
2. The Email
[43] The Ministry argues that this part of Ms. Monteith’s complaint should be dismissed because the Email was not sent to “most of the staff”, as Ms. Monteith alleges. The Ministry says the Email was sent in the ordinary course and informed the appropriate staff that Ms. Monteith was required to work regular full-time hours. It says that well-planned shift scheduling is imperative to ensuring the safety and security of inmates, staff, and visitors and that the management team needs to know who is on shift and to make arrangements if someone is not available.
[44] For two reasons I am not persuaded that this part of Ms. Monteith’s case has no reasonable prospect of success.
[45] First, the parties dispute key facts about the Email, specifically whether it was usual to send in the circumstances and to whom it was sent. In my view, a hearing is required so the Tribunal can make factual findings regarding the Email.
[46] Second, in my view this is not the type of complaint where efficiency might be gained by parsing out and dismissing individual allegations since the parties will need to provide evidence about Ms. Monteith’s work experiences in any event: Fraser v. Tolko Industries Ltd. and others, 2021 BCHRT 118 at para. 216. Similar to the situation in Fraser, Ms. Monteith has made allegations that must be considered in context with each other. In Fraser, the Tribunal declined to dismiss particular allegations that “on their own might not rise to the level of discrimination or might not appear to be connected to a ground of discrimination, but might do so when viewed contextually”: at para. 214. As the Tribunal noted in Fraser, in “any complaint involving an alleged discriminatory work environment over a period of time, it would likely be difficult to dismiss any particular allegations as not contributing to the alleged problem”: at para. 215.
B. The Ministry’s justification defence
[47] The Ministry argues that the complaint has no reasonable prospect of success because it is reasonably certain to prove a defence at the hearing: Purdy at para. 50. The Ministry’s submission focuses solely on the allegation that it discriminated against Ms. Monteith by requiring her to return to regular full-time hours.
[48] To justify its decision to require Ms. Monteith to return to regular full-time hours, the Ministry would have to prove that: (1) it adopted the standard for a purpose rationally connected to the performance of the job, (2) it adopted the standard in an honest and good faith belief that it was necessary to the fulfillment of that legitimate purpose; and (3) the standard is reasonably necessary to the accomplishment of that legitimate purpose. This third element encompasses the Ministry’s duty to accommodate Ms. Monteith to the point of undue hardship: British Columbia (Public Service Employee Relations Commission) v. British Columbia Government and Service Employees’ Union (Meiorin Grievance), [1999] 3 SCR 3 [Meiorin] at para. 54.
[49] Neither party made submissions on the first two elements of the Meiorin test. Rather, they focused only on whether it is reasonably certain the Ministry will be able to establish at a hearing that it accommodated Ms. Monteith to the point of undue hardship.
[50] The duty to accommodate does not require an employer to make fundamental changes to an employee’s working conditions. However, it does require an employer, “if it can do so without undue hardship, to arrange the employee’s workplace or duties to enable the employee to do his or her work”: 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. 16.
[51] The Ministry says it met its duty to accommodate Ms. Monteith because there is an LTD Plan in the collective agreement and that employees whose applications for LTD benefits are denied may be approved for a Non-Medical RTW for up to eight weeks when they return to work. The Ministry further says it was not required to accommodate Ms. Monteith because the CRC found she was not totally disabled from performing her job duties. The Ministry says it was “not required to perpetually accommodate the Complainant’s requests for modified work hours, particularly when there is no new medical information supporting a leave, and in circumstances when there was no new application for LTD benefits and no appeal of the CRC Decision”.
[52] I am not persuaded by these arguments or on the evidence before me that it is reasonably certain the Ministry would be able to establish that it met its duty to accommodate Ms. Monteith’s disability. In my view, there are gaps and conflicts in the evidence that result in several unanswered questions about the Ministry’s defence and lead me to conclude that the complaint should go to a full hearing.
[53] First, the Ministry says that in consultation with OHR, it decided that Ms. Monteith’s Non-Medical RTW would end based on her most recent Doctor’s Certificates and that they “globally assessed her desire to continue to have modified hours”. The Ministry did not, however, provide information or evidence that explains how it arrived at its decision given that the Doctor’s Certificates between June and October 2021 recommend continued modified hours for Ms. Monteith. Further, the Ministry did not provide information or evidence to explain how it “globally assessed” what it describes as Ms. Monteith’s “desire” for modified hours.
[54] Second, progress notes made by an OHR disability case specialist [Disability Specialist] that the Ministry submitted indicate that in October 2021, there was a discussion about whether to accept new medical information from Ms. Monteith. The progress notes indicate that the Disability Specialist and the person in the “ERS” position did not agree on the matter. According to the progress notes, the Disability Specialist was of the view that the CRC Decision was the “final authority” regarding Ms. Monteith’s ability to work and that Ms. Monteith “was provided all available avenues to substantiate medical absence (LTD and CRC review)”. The progress notes indicate that the ERS was of the view that the CRC Decision was not the “final authority” and that the ADW of Staffing should continue to request medical information from Ms. Monteith and inquire as to when she might be expected to return to regular full-time hours. The Ministry has not provided any information or evidence to explain how the decision was made to follow the Disability Specialist’s recommendation rather than the ERS’s recommendation.
[55] Third, the Ministry says it did not have a duty to accommodate Ms. Monteith and ended her Non-Medical RTW because the Doctor’s Certificates she provided “did not include any evidence of new medical conditions or a new diagnosis that [LTD Plan Carrier] and the CRC had not already considered”. The Ministry says that the Doctor’s Certificates that Ms. Monteith provided “merely re-iterated her position of an illness that had already been twice adjudicated”. The Ministry has not provided any information or evidence that explains why the duty to accommodate would only arise if an employee seeks accommodation for a medical condition that is different from what they had when they applied, and were found not to be eligible, for LTD benefits. Put another way, it is not clear whether the Ministry ever considered Ms. Monteith’s request in November 2021 to continue working modified hours under the Public Service Agency’s Guide to Reasonable Accommodation that was attached to Ms. Monteith’s affidavit.
[56] Fourth, there is conflicting evidence regarding the nature of Ms. Monteith’s return to work. The Ministry says Ms. Monteith was on a Non-Medical RTW, yet the evidence before me indicates that Ms. Monteith was required to provide Doctor’s Certificates to support her continued modified hours. The evidence also indicates that in June 2021, Ms. Monteith was told that a Doctor’s Certificate was needed before she could return to regular full-time hours. Further, the parties disagree on the plan that was put in place when Ms. Monteith requested modified hours in June 2021. The Ministry says that even though a Non-Medical RTW is usually in place for no more than eight weeks, it agreed to modify Ms. Monteith’s hours until November 2021. Ms. Monteith says the tentative plan was to modify her hours until December 2021, with her hours increasing as progress allowed. In my view, a hearing is required so the Tribunal can make findings of fact on this issue.
[57] Finally, the progress notes indicate that after Ms. Monteith provided the November 2021 Doctor’s Certificate, the Disability Specialist suggested to the ADW of Staffing that the decision to require her to return to regular full-time hours should still stand. The evidence indicates that the Ministry followed the Disability Specialist’s suggestion. There is no information or evidence before me explaining why the Ministry decided to disregard the Doctor’s Certificate recommending that Ms. Monteith continue to work modified hours.
V CONCLUSION
[58] For the reasons set out above, the Ministry’s application to dismiss the complaint under s. 27(1)(c) of the Code is denied. The complaint will proceed to a hearing.
Beverly Froese
Tribunal Member