Costa v. Northern Health Authority and others (No.2), 2025 BCHRT 281
Date Issued: November 4, 2025
File: CS-006383
Indexed as: Costa v. Northern Health Authority and others (No.2), 2025 BCHRT 281
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:
Anthony Joseph Costa
COMPLAINANT
AND:
Northern Health Authority and Michael Moran and David Nelson
RESPONDENTS
REASONS FOR DECISION
APPLICATION TO DISMISS A COMPLAINT
Section 27(1)(c)
Tribunal Member: Andrew Robb
Counsel for the Complainant: Lindsay A. Waddell and Raunaq Arora
Counsel for David Nelson: Nina Dauvergne
I INTRODUCTION
[1] Dr. Anthony Joseph (Joe) Costa filed a complaint of discrimination against Northern Health Authority [NHA] and Dr. Michael Moran [the Original Complaint]. He subsequently filed a complaint alleging Dr. Moran and Dr. David Nelson retaliated against him because he filed the Original Complaint [the Retaliation Complaint]. This is a decision about Dr. Nelson’s application to dismiss the Retaliation Complaint without a hearing.
[2] Drs. Costa, Moran, and Nelson are orthopedic surgeons who practiced in a hospital operated by NHA. The Discrimination Complaint says Dr. Costa had a disability which prevented him from fully participating in an on-call schedule for orthopedic surgeons at the hospital, and he lost some of his hospital privileges because he was not fully participating in the on-call schedule. The Retaliation Complaint says Dr. Nelson interfered with the schedule of a medical student and resident who were supposed to be working with Dr. Costa, refused to communicate about patients with Dr. Costa, and improperly made Dr. Costa responsible for certain patients, all in retaliation for Dr. Costa considering and then filing the Original Complaint.
[3] The Retaliation Complaint appears to suggest that Dr. Nelson also retaliated against Dr. Costa by refusing to accommodate his disability. But in his response to Dr. Nelson’s application to dismiss, Dr. Costa clarified that this allegation is advanced only against Dr. Moran.
[4] Dr. Nelson denies that he engaged in the type of conduct described in s. 43 of the Human Rights Code, which protects against retaliation. He says none of his alleged conduct was related to the Original Complaint.
[5] After the parties filed their submissions in the application to dismiss, Dr. Costa applied to file a further submission. He says some of Dr. Nelson’s final reply arguments were improper, and fairness requires him to have an opportunity to respond to those arguments.
[6] For the reasons set out below, I find I do not need to make a decision about Dr. Costa’s application to file a further submission because his further submission would not affect my decision in the application to dismiss. I allow the application to dismiss, and I dismiss the complaint against Dr. Nelson. I find Dr. Costa has no reasonable prospect of proving Dr. Nelson engaged in the type of conduct described in s. 43 of the Code.
[7] To make this decision, I have considered all the information filed by Dr. Nelson and Dr. Costa. In these reasons, I only refer to what is necessary to explain my decision.
II BACKGROUND
[8] Some of the relevant background information was set out in my decision about applications by Dr. Moran and NHA to dismiss the Original Complaint: Costa v. Northern Health Authority and another, 2025 BCHRT 78. In summary:
a. NHA operates the University Hospital of Northern BC [the Hospital]. At the relevant times, Drs. Costa, Moran, and Nelson were members of the Hospital’s Division of Orthopaedics [the Division]. Members of the Division are NHA medical staff with a speciality in orthopedic surgery who have privileges at the Hospital. These privileges normally include access to operating time in the Hospital’s operating rooms [OR time].
b. At some point before the events described in the Original Complaint, Division members agreed on an on-call schedule, to ensure the Division provides 24/7 on-call availability. Each full-time member of the Division is on call for seven days, in total, out of every seven weeks. Dr. Costa job-shared his position with his wife, who was also a member of the Division, so his on-call obligation was approximately half that of full-time members of the Division.
c. Dr. Costa struggled with the on-call schedule. Starting in May 2019, he went on leave from work, for about 14 weeks. He says he had symptoms of depression related to the on-call schedule. While he was on leave, other members of the Division covered his on-call time. He returned to work in August 2019 and re-joined the on-call schedule.
d. Starting in May 2020, Dr. Costa stopped participating in the on-call schedule. He says this was due to his disabilities. He continued with the rest of his practice, including his OR time. Some members of the Division felt it was unfair for him to continue to receive OR time after he stopped doing on-call duties.
e. In February 2021, NHA removed Dr. Costa’s OR time, pending an independent medical examination [IME] of Dr. Costa.
f. On March 3, 2021, members of the Division voted to remove Dr. Costa as a member of the Division. NHA’s position is that the Division had no authority to do this, and the vote had no effect on Dr. Costa’s membership in the Division.
g. The IME took place on April 6, 2021. The physician who performed the IME found Dr. Costa was fit to practice with no restrictions on his duties, including OR time and on-call duties.
h. Despite that finding, Dr. Costa says he continued to face disability-related barriers to participating in the on-call schedule. NHA says the schedule was modified to accommodate his disability. Dr. Costa denies this. He returned to on-call duties in August 2021, but he says the schedule still did not accommodate his disability.
i. Dr. Costa resigned from NHA and stopped working at the Hospital in December 2021.
[9] Dr. Costa filed the Original Complaint on July 16, 2021. He says it was served on Dr. Moran on August 19, 2021. Dr. Nelson says he first learned of the Original Complaint on August 22 or 23, 2021, when he was copied on email correspondence from Dr. Moran about it.
[10] Dr. Nelson says he once had a positive relationship with Dr. Costa, but the relationship deteriorated as Dr. Costa became increasingly vocal about his issues with the on-call schedule. Dr. Nelson says he became frustrated with Dr. Costa’s absence from the on-call schedule and by mid-2020, he could no longer communicate with Dr. Costa effectively.
[11] In the following paragraphs, I summarise the evidence before me about Dr. Nelson’s conduct that Dr. Costa says amounts to a contravention of s. 43 of the Code.
A. Interference with medical student and resident
[12] As part of his work in the Division, Dr. Nelson assists medical students and residents with rotations through the Division. He says he is involved in organising suitable and variable learning opportunities for them, but they generally choose for themselves which members of the Division they will work with, from day to day.
[13] Dr. Costa says medical students were normally available to assist the on-call member of the Division with consultations. He says that on August 9, 2021, his first day back on the on-call schedule since May 2020, a medical student contacted him and told him she had been assigned to work with him that day. But later that day, the student told him Dr. Nelson had contacted her and directed her to work with Dr. Nelson instead.
[14] In his application to dismiss, Dr. Nelson does not deny that he contacted the student and directed her to not to work with Dr. Costa, on August 9, 2021. He says had concerns about Dr. Costa working with students because it could create an undue burden on Dr. Costa, considering he had just returned from an extended leave. He also had concerns because Dr. Costa had not “fully integrated” into the Division, and did not get along with colleagues. On August 9, 2021, he voiced these concerns in an email to the head of the department of orthopaedics at a medical school where Dr. Costa was a clinical instructor [the Department Head]. Dr. Nelson provided evidence that he had previously shared similar concerns with the Department Head. In an email to the Department Head dated February 21, 2021, Dr. Nelson said medical students should not work with Dr. Costa as he had the potential to be abusive.
[15] On August 19, 2021, Dr. Costa alleges that Dr. Nelson told a medical resident who was scheduled to assist Dr. Costa that day that she should not work with him after all. Dr. Nelson denies this allegation. He says he does not assign residents to work with members, and he does not manage residents’ work at the Hospital. He says he had no involvement in this particular resident’s schedule.
[16] Dr. Nelson says that later in August 2021, the Department Head told him Dr. Costa should have as much time with medical students as other members of the Division. Dr. Nelson says he complied with this direction and advised residents and students that they should work with Dr. Costa. Dr. Costa does not deny this, in the materials before me.
B. Refusal to communicate about patients
[17] The Retaliation Complaint refers to an incident on October 29, 2021, when Dr. Costa says Dr. Nelson refused to communicate with him appropriately about a patient. Dr. Costa’s response to the application to dismiss says there was another refusal to communicate about a patient, in September 2021. But it provides no further details, and there is no evidence before me about any such incident involving Dr. Nelson, before October 2021.
[18] Dr. Costa says that on Friday, October 29, 2021, he wanted to talk to Dr. Nelson about the patients he operated on that day, because Dr. Nelson was scheduled to be on call that weekend. Dr. Costa says it was normal for Division members who had performed surgery during the day to talk about their patients with the member who was next on the on-call schedule, so that they would have relevant information in case the patient needed care after hours. However, when Dr. Costa texted Dr. Nelson to suggest they talk about his patients, Dr. Nelson refused.
[19] Dr. Nelson says that as a professional courtesy, on-call members of the Division may round on (i.e. check up on) other members’ patient on weekends, but this was not mandatory. He says that when Dr. Costa texted him on October 29, 2021, he assumed Dr. Costa wanted him to round on Dr. Costa’s patients. He says that because of the breakdown in his relationship with Dr. Costa, he was no longer willing to extend this professional courtesy. Dr. Nelson says that later that day, he spoke to the Hospital’s Medical Director and explained his position on rounding on Dr. Costa’s patients, but confirmed he would attend to them in the event of an emergency.
[20] On October 30, 2021, Dr. Costa followed up with Dr. Nelson by email. The email said Dr. Costa had spoken to the Medical Director, and was writing to provide handover information regarding his patients. After providing brief background information about the patients, Dr. Costa said he understood from the Medical Director that Dr. Nelson would cover any “ward related issues” for these patients over the weekend, but would not round on them. Dr. Nelson responded and said that was fine. Dr. Nelson then emailed the Medical Director and said he would tell Dr. Costa’s patients that Dr. Nelson would not be rounding on them, but he would have preferred that Dr. Costa had told them this himself. He went on to suggest Dr. Costa was attempting to damage the reputation of other Division members.
C. Inappropriate assignment of responsibility for patients
[21] Dr. Costa alleges that on two occasions, in November and December 2021, Dr. Nelson inappropriately made him responsible for care of patients for whom he should not have been responsible.
[22] Dr. Costa says that on November 6, 2021, he had scheduled a patient for emergency surgery, but he could not complete the surgery for administrative reasons, so he handed the patient over to the next Division member on the on-call schedule, Dr. D. Dr. Costa says Dr. D also could not do the surgery, so he handed the patient over to Dr. Nelson, who was next on the schedule. But the patient’s medical condition changed before Dr. Nelson could do the surgery, so Dr. Nelson could not do it either. Dr. Costa says he did not know this at the time—he did not find out until later that Dr. D did not do the surgery. He says Dr. Nelson later copied him on a patient note, saying the patient would need to follow up with either Dr. Nelson or Dr. Costa to reschedule the surgery.
[23] Dr. Costa says that after he handed the patient over to Dr. D, he should have had no further responsibility for the patient, since he had not done the surgery. But due to Dr. Nelson’s note in the patient file, Dr. Costa says he continued to be responsible for the patient.
[24] Dr. Nelson says he does not recall this incident. He says he reviewed the relevant records, and he believes Dr. Costa probably remained responsible for the patient because Dr. Nelson did not perform a consultation or provide medical services to the patient.
[25] There is no further evidence before me about the incident in November 2021.
[26] On December 21, 2021, a patient was admitted to the Hospital while Dr. Costa was on call, and Dr. Costa performed surgery on the patient. Dr. Costa says he was scheduled to go on holiday starting on December 22, 2021. On December 23, 2021, the patient needed surgery again, and Dr. Nelson performed the surgery, as he was next on the on-call schedule.
[27] Dr. Costa says that normally, the member of the Division who is on call when a patient is admitted takes on the role of Most Responsible Physician [MRP] for that patient, but if that member is scheduled to be on holiday, the MRP role is normally assumed by the next on-call member or the next member who performs surgery on the patient, to ensure continuity of care while the admitting member is on vacation. But he says Dr. Nelson did not assume the MRP role, and consequently Dr. Costa had to round on the patient, and provide further services, while he was supposed to be on vacation.
[28] Dr. Nelson says he performed one surgery on the patient, while Dr. Costa performed multiple surgical procedures, so it would have been unusual for Dr. Nelson to become MRP.
III DECISION
A. Application to file a further submission
[29] After Dr. Nelson filed his reply to Dr. Costa’s response to the application to dismiss, Dr. Costa applied to file a further submission. The Tribunal’s application process generally involves three submissions: the application, the response, and the reply: Tribunal Rules of Practice and Procedure, Rule 28(2). The Tribunal may accept further submissions where fairness requires it.
[30] Dr. Costa says some parts of Dr. Nelson’s reply submission and supporting affidavit are improper because they repeat or expand on arguments already made in the initial application, or because they include new information which should have been included in the initial application. He argues the Tribunal should either refuse to consider these parts of the reply submission, or consider his additional submission in response to them.
[31] I do not find it necessary to decide whether fairness requires an opportunity for Dr. Costa to provide a further submission. For the purposes of this decision, I assume that it does. I have considered Dr. Costa’s additional submission but I would dismiss the complaint against Dr. Nelson regardless of whether I considered it or not.
B. Section 27(1)(c) – No reasonable prospect of success
[32] Dr. Nelson applies to dismiss Dr. Costa’s complaint under s. 27(1)(c) of the Code, on the basis that it has no reasonable prospect of success. Section 27(1)(c) is part of the Tribunal’s gate-keeping function. It allows the Tribunal to dismiss complaints which do not warrant the time and expense of a hearing. The onus is on the respondents to establish the basis for dismissal.
[33] 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. 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.
[34] 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.
[35] Section 43 of the Code protects people from retaliatory conduct for participating, or possibly participating, in a human rights complaint process under the Code. It says:
A person must not evict, discharge, suspend, expel, intimidate, coerce, impose any pecuniary or other penalty on, deny a right or benefit to or otherwise discriminate against a person because that person complains or is named in a complaint, might complain or be named in a complaint, gives evidence, might give evidence or otherwise assists or might assist in a complaint or other proceeding under this Code.
[36] To succeed in his retaliation complaint against Dr. Nelson, Dr. Costa would have to show: (1) Dr. Nelson knew of the Original Complaint or that Dr. Costa might file a complaint; (2) Dr. Nelson engaged in or threatened to engage in conduct described in s. 43; and (3) there is sufficient connection between the impugned conduct and the Original Complaint, or between the impugned conduct and Dr. Nelson’s knowledge that Dr. Costa might file a complaint: Gichuru v. Pallai, 2018 BCCA 78 at para. 58. To succeed in this application, Dr. Nelson must show that Dr. Costa has no reasonable prospect of proving one of these elements.
[37] Dr. Nelson argues that Dr. Costa has no reasonable prospect of proving the knowledge element of the test for retaliation, in relation to Dr. Costa’s allegations against Dr. Nelson from August 2021, and that he has no reasonable prospect of proving the remaining elements in relation to all the allegations.
[38] I find it most efficient to focus on whether there is no reasonable prospect that Dr. Costa will prove Dr. Nelson engaged in or threatened to engage in conduct described in s. 43. Section 43 does not capture all negative or unpleasant conduct by an individual that has some connection to a human rights complaint. The activities which it regulates are specifically listed in s. 43 and are limited to significant prejudicial conduct with serious effects: Birchall v. BCS 61 Strata Corporation and another, 2018 BCHRT 29 at para. 69.
[39] Dr. Nelson says his alleged conduct, even if proven, is not captured by s. 43. He says he was not in a position of power over Dr. Costa such that he could have caused the type of serious effects required under s. 43, as he was not Dr. Costa’s supervisor and he had no control over Dr. Costa’s employment. He cites the strained relationship between them, even before the Original Complaint was filed, and says the conduct alleged by Dr. Costa is properly characterised as minor workplace conflict between coworkers. As I understand his argument, he says Dr. Costa has no reasonable prospect of proving the alleged conduct was sufficiently prejudicial, or had sufficiently serious consequences, to engage s. 43.
[40] Dr. Costa argues that Dr. Nelson’s alleged conduct, including his interference with the medical student and resident in August 2021, his refusal to communicate about patients in October 2021, and his inappropriate “foisting” of patient responsibility on Dr. Costa in November and December 2021, had the potential to create serious reputational and legal risk for Dr. Costa, and to compromise patient care. He does not say what activity listed in s. 43 applies to Dr. Nelson’s conduct. As I understand his argument, he says this conduct was a form of intimidation, and was intended to deter him from pursuing the Original Complaint. For the purposes of s. 43, “intimidation” captures conduct “with the potential to create consequences, such as engendering fear, that are at least somewhat analogous to the consequences that flow from being evicted, discharged, disciplined, or otherwise treated in the manner identified in s. 43”: Birchall at para. 63. This includes conduct which generates fear or a sense of powerlessness, and has the potential to deter the complainant from pursuing allegations of discrimination, assessed from the perspective of a reasonable complainant: Birchall at paras. 70-71.
[41] For the following reasons, I am satisfied that Dr. Costa has no reasonable prospect of proving Dr. Nelson engaged in the type of conduct described in s. 43.
[42] The alleged conduct in August 2021 consists of preventing a medical student from working with Dr. Costa on August 9, and preventing a medical resident from working with him on August 19. On the evidence before me it appears Dr. Nelson stopped doing this by August 30, after hearing from the Department Head. Dr. Costa does not suggest otherwise, and does not allege that Dr. Nelson prevented him from working with medical students or residents on any other occasion.
[43] Dr. Costa says Dr. Nelson’s conduct undermined his ability to provide clinical instruction to the medical student and resident, and had the potential to create serious reputational or legal risk for Dr. Costa, and health risks for his patients. He does not provide any further explanation or point to any evidence that could substantiate his claim about the potential for legal risks for him or health risks for his patients. In particular, he does not say he required assistance from the medical student or resident to care for his patients, or that the quality of care his patients received was any different than it would have been if he had received that assistance. He says Dr. Nelson’s interference with the student and resident may have damaged his reputation as an instructor, but there is no evidence before me about his reputation, either before or after August 2021, other than Dr. Nelson’s email to the Department Head in February 2021.
[44] On the materials before me, Dr. Costa’s claim that Dr. Nelson’s conduct in August 2021 could have created reputational or legal risks for Dr. Costa, or health risks for his patients, appears to be speculative. Even if Dr. Nelson prevented the medical student and resident from working with Dr. Costa, I find Dr. Costa has no reasonable prospect of proving this was the type of prejudicial conduct with serious effects that is required under s. 43.
[45] Similarly, I find Dr. Costa has no reasonable prospect of proving Dr. Nelson’s alleged conduct in October 2021, when he refused to accept information about Dr. Costa’s patients, had serious effects on Dr. Costa. The evidence before me shows that Dr. Nelson initially refused to accept any information about these patients, but one day later agreed to Dr. Costa’s request that he cover “ward related issues” for them.
[46] Dr. Costa’s evidence is that Dr. Nelson’s initial refusal to accept patient information made it more difficult for Dr. Costa to know who would be responsible for those patients after hours or on the weekend, but he does not deny that any question about this was cleared up within one day. He says this could have compromised patient care or exposed him to medicolegal risk, but he does not explain how, and he does not offer any evidence to bring these risks beyond speculation.
[47] Dr. Nelson’s alleged retaliatory conduct in November 2021 consists of copying Dr. Costa on a patient note saying the patient would need to follow up with either Dr. Nelson or Dr. Costa to reschedule their surgery. Dr. Costa says he should have had no responsibility for this patient, as he had not performed surgery on them. But due to Dr. Nelson’s note in the file, Dr. Costa says he continued to be responsible for the patient, and this created uncertainty about patient care and safety, which caused him unnecessary stress.
[48] I am satisfied that Dr. Costa has no reasonable prospect of proving Dr. Nelson’s note saying the patient would need to follow up with Dr. Costa or Dr. Nelson had the type of serious effects required by s. 43. Even if it caused him unnecessary stress, there is no evidence before me that this had serious consequences for him. I also consider that the note was apparently ambiguous about who would be responsible for the patient. The note is not before me, but Dr. Costa says it said the patient would have to follow up with Dr. Costa or Dr. Nelson. It is unclear to me how a note saying the patient would have a choice between contacting Dr. Costa or Dr. Nelson could amount to seriously prejudicial conduct by Dr. Nelson against Dr. Costa.
[49] Dr. Nelson’s alleged conduct in December 2021 consists of failing to take on the MRP role for a patient on whom both Dr. Nelson and Dr. Costa had performed surgery. Dr. Costa says the effect of this was that he had to care for the patient during his vacation. I understand his frustration about having to work during his vacation, but he does not explain how this amounts to the type of serious impact that is captured by s. 43. He does not say that he asked Dr. Nelson to take on the MRP role—he says another Division member, Dr. P, agreed to ask Dr. Nelson to take on this role, but there is no evidence before me about whether Dr. P did so, and no evidence that Dr. Nelson knew Dr. Costa would be going on vacation. Nor does Dr. Costa deny Dr. Nelson’s claim that he had done multiple surgeries on the patient, whereas Dr. Nelson had only done one. In these circumstances, I am satisfied he has no reasonable prospect of proving Dr. Nelson’s failure to take on the MRP role amounted to significantly prejudicial conduct with serious effects.
[50] Considering the relationship between Dr. Nelson and Dr. Costa, and the nature of the alleged retaliatory incidents, I am satisfied that there is no reasonable prospect that a reasonable human rights complainant in Dr. Costa’s position would have perceived Dr. Nelson’s conduct as intimidating, or would have been deterred from proceeding with a human rights complaint. In the materials before me, Dr. Costa does not explain how Dr. Nelson’s conduct could have had that effect, and there is no evidence that it was intended to.
[51] Even considering the cumulative effect of all the incidents that Dr. Costa describes as retaliation, I still find he has no reasonable prospect of establishing that a reasonable complainant would have perceived Dr. Nelson’s conduct as intimidation, or that Dr. Nelson engaged in conduct analogous to the conduct described in s. 43. Dr. Costa alleges five incidents, over a period of five months, which caused Dr. Costa to experience uncertainty, stress, or inconvenience. Most of these incidents consisted of passive behaviour on Dr. Nelson’s part: other than the August 2021 allegations about the medical student and resident, Dr. Costa does not suggest that Dr. Nelson took active steps to retaliate against him, but rather that he failed to take positive steps that would have made Dr. Costa’s work easier or less stressful. There is no evidence that any of the alleged retaliatory incidents affected Dr. Costa for more than a few days. I am satisfied that Dr. Costa has no reasonable prospect of proving Dr. Nelson’s conduct went beyond normal conflict between coworkers who did not get along. On the evidence before me, there is no basis to infer that the evidence at a hearing would disclose more serious conduct by Dr. Nelson or a more serious impact on Dr. Costa.
[52] For these reasons, I find Dr. Costa has no reasonable prospect of proving Dr. Nelson engaged in conduct described in s. 43. This means his complaint against Dr. Nelson has no reasonable prospect of success.
IV CONCLUSION
[53] The complaint against Dr. Nelson is dismissed.
Andrew Robb
Tribunal Member