Delorey v. SimpeQ Care and another, 2025 BCHRT 282
Date Issued: November 13, 2025
File: CS-006542
Indexed as: Delorey v. SimpeQ Care and another, 2025 BCHRT 282
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:
Bonny Delorey
COMPLAINANT
AND:
SimpeQ Care and Gerry Clayford-Beckie
RESPONDENTS
REASONS FOR DECISION
APPLICATION TO DISMISS A COMPLAINT
Section 27(1)(c)
Tribunal Member: Theressa Etmanski
On their own behalf: Bonny Delorey
Agent for the Respondents: Hailey Clayford-Beckie
I INTRODUCTION
[1] This is a decision about whether to dismiss Bonny Delorey’s human rights complaint without a hearing.
[2] Ms. Delorey was employed as a Health Care Aid for SimpeQ Care. She alleges that SimpeQ and its director, Gerry Clayford-Beckie, [together, Respondents] discriminated against her based on her physical disabilities by disciplining her for various performance issues and alleged misconduct, as well as making comments about her physical health.
[3] The Respondents deny discriminating and say their actions were fair and non-discriminatory performance management, in accordance with SimpeQ’s policies and procedures. They now apply to dismiss the complaint pursuant to s. 27(1)(c) of the Human Rights Code, as they say it has no reasonable prospect of success.
[4] Ms. Delorey has not responded to this application.
[5] To resolve this application, I must determine whether Ms. Delorey has taken out of the realm of conjecture that the alleged conduct caused her an adverse impact in employment, and if so, that her physical disabilities were a factor.
[6] For the following reasons, I grant the application. 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 make no findings of fact.
II BACKGROUND
[7] Ms. Delorey identifies her physical disabilities as obesity and a hearing impairment.
[8] In her work as a Health Care Aid, Ms. Delorey supported elderly residents in a long-term care facility run by SimpeQ. The allegations in this complaint stem from coaching or disciplinary action taken by the Respondents against Ms. Delorey between December 22, 2021, and February 22, 2023.
[9] Ms. Delorey resigned from her position with SimpeQ on August 30, 2023.
III DECISION
[10] The Respondents apply to dismiss Ms. Delorey’s complaint on the basis that it has no reasonable prospect of success: Code, s. 27(1)(c). 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. The onus is on the Respondents to establish the basis for dismissal.
[11] 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.
[12] 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.
[13] To prove her complaint at a hearing, Ms. Delorey will have to prove that she has a characteristic protected by the Code, she was adversely impacted in employment, and her protected characteristic was a factor in the adverse impact: Moore v. British Columbia (Education), 2012 SCC 61 at para. 33. If she did that, the burden would shift to the Respondents to justify the impact as a bona fide occupational requirement. If the impact is justified, there is no discrimination.
[14] The Respondents do not appear to dispute the Ms. Delorey has the physical disabilities she alleges. However, I understand them to dispute that their actions caused her any adverse impact or were connected to her physical disabilities. Further, I understand the Respondents to argue that the complaint has no reasonable prospect of success because it is reasonably certain to prove a defence at the hearing: Purdy v. Douglas College and others, 2016 BCHRT 117 at para. 50.
[15] To justify the adverse impacts at a hearing, the Respondents would have to prove that: (1) they adopted the standard for a purpose rationally connected to the performance of the job, (2) they 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 their duty to accommodate Ms. Delorey 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 at para. 54.
[16] Ms. Delorey alleges that the Respondents repeatedly called her into meetings and/or disciplined her for alleged misconduct or performance issues. The parties largely agree on the facts alleged but disagree on whether the conduct complained of was an adverse impact based on her physical disability within the meaning of the Code. Rather, the Respondents say their actions were fair, unbiased, non-discriminatory, and justified incidents of performance management.
[17] In Moudakis v. Insurance Corp of British Columbia and others, 2024 BCHRT 266 at para 67, the Tribunal held that it is not adverse treatment for a manager or supervisor to performance manage people under their supervision, even if those conversations are sometimes difficult and unwelcome from the employee’s perspective. However, the Code may be engaged where there is evidence that a particular employee is being singled out for performance management because of their Code-protected characteristics, or where the protected characteristics present a barrier to compliance with the workplace standard being enforced.
[18] For the reasons that follow, I am satisfied that the complaint has no reasonable prospect of success.
[19] I explain my conclusion with respect to each of Ms. Delorey’s allegations in turn.
A. Investigation meeting on December 22, 2021
[20] Ms. Delorey alleges that, on December 22, 2021, the Respondents called her into a meeting to question her about leaving work early the day before. She says she left early that day due to the stress of being short-staffed and overwhelmed with the workload, however, she says the Respondents falsely accused her of abandoning her shift. She further says the Respondents falsely accused her of damaging property by removing a call bell from a resident’s room, putting an elderly resident at risk. Ms. Delorey says her doctor placed her on stress leave following this meeting.
[21] The Respondents confirm that this meeting took place. They explain that they had received emails from two staff members expressing concern that Ms. Delorey had told both that she had removed a resident’s call bell from the wall due to frustration with the resident’s frequent ringing of the bell. The Respondents state that according to SimpeQ’s “Issue Resolution Process: Formal and Informal” policy, concerns of this nature are to be followed up with an investigation meeting. Accordingly, the meeting was held to question Ms. Delorey about the comments that were reported, and she was given the opportunity to respond.
[22] The Respondents further agree that concerns about Ms. Delorey’s attendance were raised during this meeting, as this was also raised in one of the emails from staff members about Ms. Delorey. The Respondents explain that there had been ongoing attendance concerns with Ms. Delorey, as she was consistently leaving early without approval from management. According to SimpeQ’s “Job Abandonment” policy, leaving early without approval is considered job abandonment.
[23] The evidence provided by the Respondents documents this meeting and indicates that Ms. Delorey’s explanations for the alleged incidents were noted, and no further action was taken by the Respondents.
[24] I am satisfied in these circumstances that Ms. Delorey has no reasonable prospect of proving at a hearing that the Respondents’ conduct caused her an adverse impact for the purposes of the Code. She has not refuted the Respondents’ position that this was a reasonable performance management discussion in light of valid concerns raised about her, which did not lead to any disciplinary action. Ms. Delorey has also not explained how her physical disabilities are connected to this alleged conduct, and I am not persuaded that Ms. Delorey has taken the nexus element of her allegation out of the realm of conjecture.
B. Investigation meeting on either January 26 or February 26, 2022
[25] Ms. Delorey’s second allegation is that on February 26, 2022, the Respondents disciplined her for allegedly yelling at elderly residents, and saying to a resident, “I hope you choke on your juice.” She further says that the Respondents accused her of scaring a resident who stated they were “afraid of the big guy”, who Gerry Clayford-Beckie identified as Ms. Delorey.
[26] The Respondents agree that they held a meeting with Ms. Delorey regarding these issues, but state that it occurred on January 26, not February 26. The Respondents explain that they had received two written concerns regarding Ms. Delorey’s treatment of elderly residents. The first was from a staff member who alleged that they had witnessed Ms. Delorey make the comment “I hope you choke on your juice” to a senior resident. The second was from a different staff member who reported that a senior resident had confided in them that they “[do] not like ‘the big one’ and that [they do not] feel safe around her.”
[27] In accordance with SimpeQ’s policy, the Respondents say they conducted an investigation meeting with Ms. Delorey regarding these concerns. The comments were presented to Ms. Delorey “as written”, and the Respondents acknowledge that Ms. Delorey may have misinterpreted this as management making the comment referring to “the big one” towards her. The Respondents say they issued Ms. Delorey a “Written Coaching Note” that day, as per SimpeQ’s “Corrective Action and Progressive Discipline” policy. They say this is intended as a tool to support employees in correcting performance issues. The Respondents say they chose to give her a Written Coaching Note on this occasion because they had previously discussed concerns related to Ms. Delorey’s communication style with her.
[28] I accept that the Respondents are reasonably certain to prove that investigating the allegations of abusive language by Ms. Delorey towards residents was a necessary performance management function unrelated to Ms. Delorey’s disabilities. Although one of the concerns brought forward by a staff member on behalf of a resident references Ms. Delorey’s weight, there is no indication that this single comment is sufficient to invoke the Code’s protections: Pardo v. Coquitlam School District No. 43, 2003 BCHRT 71, at para. 12.
[29] To the extent that the Respondents coached Ms. Delorey more broadly regarding her communication style, I have considered that the Written Coaching Note indicates that this included an instruction to be conscious of her “volume and tone of voice when speaking with residents” and that Ms. Delorey informed the Respondents that she speaks loudly because of her hearing impairment. However, on a balance of the evidence before me, I am satisfied that the Respondents are reasonably certain to establish at a hearing that their concern was that residents were feeling afraid or intimidated by Ms. Delorey’s behaviour and that she had been inappropriate in the content of her communication with them. If proven, it would be open to the Tribunal to find that this is a non-discriminatory explanation. I am not persuaded that Ms. Delorey has taken out of the realm of conjecture that coaching her on these concerns caused her a disability-related adverse impact in employment.
C. Written Coaching Note of January 26, 2022
[30] Ms. Delorey further alleges that on January 26, 2022, the Respondents asked her, “what are you going to do about your physical health?” She states that she told them she needed knee and hip surgery, and an unnamed person said that she was “a candidate for complications.” Ms. Delorey says she then informed them that she did not want to talk about her physical state anymore.
[31] The Respondents say this allegation is in reference to a statement in the Written Coaching Note provided to Ms. Delorey on January 26, 2022. The Respondents explain that when providing this note to Ms. Delorey, the manager discussed her mental and physical wellbeing in attempt to support her to improve her performance at work. These topics were discussed as Ms. Delorey had previously expressed to management that both her mental and physical wellbeing sometimes impacted her work performance. Specifically, the Respondents say Ms. Delorey expressed that stress and frustration at work impacted her professional communication. With respect to her attendance, Ms. Delorey further expressed that she was unable to walk back to the main building to clock out. The Respondents explain that many duties associated with the Heath Care Aid role are physically demanding, as reflected in the job description. Accordingly, the Respondents say they have an ethical and legal obligation to ensure staff are both mentally and physically fit to work. Further, these topics of conversation were not unique to Ms. Delorey in the workplace, as SimpeQ says it regularly provides staff with education on mental and physical wellbeing.
[32] The Tribunal has previously noted that:
[t]here is no legislative provision in British Columbia prohibiting questions or statements related to a prohibited ground, other than discriminatory publication or advertising. […] Communications may also constitute discrimination if they amount to harassment, or otherwise constitute differential treatment having adverse consequences, based on a prohibited ground: Silzer v. Chaparral Industries (86) Inc., 1993 CanLII 16481 (BC HRT), at para. 41.
[33] For such communications to constitute harassment, they must demonstrate a pattern of unwelcome physical and/or verbal conduct, which, regardless of intention, demeans an employee and creates a “poisoned” work environment or other adverse consequence for them: Janzen v. Platy Enterprises Ltd., 1989 CanLII 97 (SCC).
[34] I am not persuaded that Ms. Delorey has taken out of the realm of conjecture that these comments amount to adverse treatment, including harassment. I can reasonably infer in the circumstances that the comments may have been related to Ms. Delorey’s obesity and that they were unwelcome. However, Ms. Delorey has not explained how the comments created a poisoned work environment or other adverse consequences for her. For this reason, I find the allegation has no reasonable prospect of success.
D. Written Coaching Note of February 1 or 2, 2022
[35] Next, Ms. Delorey says on February 2, 2022, she was disciplined for printing her human rights complaint form from the company printer.
[36] The Respondents agree that Ms. Delorey was caught using a work computer and printer for personal use during work hours without permission, but say this occurred on February 1, not February 2. The Respondents say they issued Ms. Delorey a Written Coaching Note for violating the “Computer Use” policy as outlined in the Employee Handbook. A copy of this Coaching Note, signed by Ms. Delorey, has been provided.
[37] In these circumstances, I am satisfied that Ms. Delorey has no reasonable prospect of establishing at a hearing that she experienced an adverse impact with respect to this allegation, as intended by the Code. Further, Ms. Delorey has not explained how her physical disability is connected to this experience, and I do not find she has taken this aspect of her complaint out of the realm of conjecture.
E. Meeting on February 8, 2022
[38] Subsequently, on February 8, 2022, Ms. Delorey says she was called into another meeting to discuss her charting and progress notes. She says she was informed that she was doing it wrong after three years.
[39] The Respondents say this meeting was not documented by management as it was likely an informal discussion. The Respondents explain that in her role as a Health Care Aid, Ms. Delorey was supervised by a Care Manager as well as a charge nurse. If either supervisor notices concerns related to the performance of clinical tasks, such as charting, it is not uncommon that they will address these concerns in real time by discussing them with the staff member and attempting to provide them with guidance or education to improve the concern.
[40] The Respondents say in the alternative, it is possible that Ms. Delorey is referencing a Letter of Expectation that was issued to her on February 24, 2022. The Respondents explain that discrepancies in charting and progress notes were discussed with all Health Care Aides and nurses in the place Ms. Delorey worked at the time. All care staff at that location were provided with the same Letter of Expectation, which was not considered formal discipline but rather corrective action, per SimpeQ’s “Corrective Action and Progressive Discipline” policy. The Letter of Expectation was intended to clarify the expectations for charting and progress notes in the hopes of reducing the volume of charting and progress note errors happening at that location.
[41] I find that Ms. Delorey has not taken this allegation out of the realm of conjecture. She has not explained how her physical disability was connected to the Respondent’s conduct in this instance, and she has not disputed the non-discriminatory explanation provided by the Respondents. Based on the information before me, this allegation has no reasonable prospect of success.
F. Meetings on February 18, 2023, and February 22, 2023
[42] In her amendment to the complaint, Ms. Delorey further alleges that on February 18, 2023, she was called into a two-hour meeting. She says she was asked about using the word “piss”, accused of speaking too loudly and using a tone that some people find offensive, accused of telling her co-workers what to do, taking an unacceptable amount of sick leave, and leaving her shifts early.
[43] The Respondents say they again received written concerns regarding Ms. Delorey from another member of staff. Accordingly, an investigation meeting was conducted to address the concerns. The first issue discussed was ongoing concerns related to Ms. Delorey’s attendance, including having a high volume of absences and regularly leaving her shift early without approval from management and without clocking out. The second issue related to Ms. Delorey’s communication style. The Respondents state that Ms. Delorey has previously informed them that she spoke loudly due to a hearing impairment. However, the concerns brought forward were related to her tone and demeanor when communicating with others, rather than her volume. The third and most serious issue was a report of suspected abuse or neglect by Ms. Delorey. It was reported that Ms. Delorey told a co-worker that “the only way to keep [a resident] inside his room is to sit outside and hold the door shut.” The Respondents say that Ms. Delorey acknowledged making this statement, but said it was false, and she had said it to see if the co-worker would gossip or report her. The Respondents say they informed Ms. Delorey that this was highly inappropriate behaviour, and she should expect a follow-up meeting to discuss the outcome of the investigation.
[44] Subsequently, on February 22, 2023, Ms. Delorey alleges that she was called in for another meeting with a union representative present. Ms. Delorey says the room was “stifling hot and crowded” and she began to feel nauseous, anxious, light-headed, and “panicky.” She states that she had to leave the meeting, and subsequently called her doctor, who advised her to take stress leave.
[45] The Respondents say this meeting was intended as a follow-up to the investigation meeting on February 18, 2023. During this meeting Ms. Delorey was issued a Letter of Expectation regarding her communication style. The Respondents say they explained that the letter was not disciplinary and was intended to support her improvement in her understanding and application of a professional communication style. The Respondents say she was also issued a Warning Letter for violating the “Freedom of Abuse” policy by deliberately misrepresenting information regarding resident care. The Respondents say that upon receiving the letters, Ms. Delorey left the meeting stating that she felt ill. She subsequently went on medical leave.
[46] The evidence provided by the Respondents includes investigation notes from this meeting, as well as the investigation findings, a Letter of Expectation and a Warning Letter.
[47] I am satisfied that Ms. Delorey has no reasonable prospect of successfully proving that the Respondents’ conduct of investigating and issuing a Warning Letter in response to the allegation of abuse against a resident was adverse treatment based on her physical disability. Given that Ms. Delorey admitted to deliberately misrepresenting herself regarding misconduct towards a resident, I am satisfied that the Respondents are reasonably certain to prove that their response amounted to necessary performance management that was unrelated to Ms. Delorey’s disability.
[48] Similarly, I am satisfied that Ms. Delorey has no reasonable prospect of proving that discussing the attendance issues, including not “clocking out” from shifts, caused her any disability-related adverse impact for the purposes of the Code. The evidence provided is reasonably certain to prove that the Respondents had a documented basis for their concerns, which was unrelated to Ms. Delorey’s disabilities, and determined that no further action was required after discussing their concerns with Ms. Delorey.
[49] Finally, with respect to the Letter of Expectation issued regarding Ms. Delorey’s communication style, I am satisfied that there is no reasonable prospect that Ms. Delorey will be successful in establishing that this caused her an adverse impact based on her disability. The Letter of Expectation does not reference the volume of her communication. Rather, it demonstrates that the Respondents’ concerns related primarily to professionalism, including employing cultural sensitivity, honesty, and respect, as well as discussing only work-related matters in the workplace and refraining from disclosing confidential matters. The evidence provided supports that the Respondents are reasonably certain to prove that these were legitimate concerns, and there is no basis for me to infer that the reasons provided are a pretext for discrimination.
IV CONCLUSION
[50] I am satisfied that the complaint has no reasonable prospect of success. The complaint is dismissed in its entirety.
Theressa Etmanski
Tribunal Member