Scott v. BFI Constructors Ltd., 2025 BCHRT 286
Date Issued: November 18, 2025
File: CS-007078
Indexed as: Scott v. BFI Constructors Ltd., 2025 BCHRT 286
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:
David Scott
COMPLAINANT
AND:
BFI Constructors Ltd.
RESPONDENT
REASONS FOR DECISION
APPLICATION TO DISMISS A COMPLAINT
Section 27(1)(c)
Tribunal Member: Jonathan Chapnick
For the Complainant: No submissions
Counsels for the Respondent: Chris Lane, K.C. and Keshav K. Bhargava
I INTRODUCTION
[1] The complainant, David Scott, alleges that the respondent, BFI Constructors Ltd. [BFI], discriminated against him in the area of employment based on the ground of mental disability, in contravention of s. 13 of the Human Rights Code.
[2] With the Tribunal’s permission, BFI applied to dismiss Mr. Scott’s complaint under s. 27(1)(c) of the Code on the basis that it has no reasonable prospect of success. Despite written directions from the Tribunal to respond to the application by November 20, 2024, Mr. Scott did not file a response.
[3] On January 22, 2025, the Tribunal notified Mr. Scott in writing that it would proceed to decide the dismissal application on the information before it. The Tribunal told Mr. Scott that if he wished to submit a late response, he was required to apply for permission to do so by filing a Form 7.1 (General Application form), in which he was required to explain the reasons for the delay. Later that day, Mr. Scott emailed the Tribunal, stating that he intended to ask permission to submit a late response and would complete a Form 7.1. However, he did not do so.
[4] For the reasons that follow, Mr. Scott’s complaint is dismissed.
II Background
[5] The following information is drawn from the materials before me and is set out here as background. I make no findings of fact.
[6] BFI provides tradespeople to large construction projects. It hires employees for a project’s duration, provides them to the project, and ends their employment at the project’s conclusion. In September 2020, BFI hired Mr. Scott to work as a carpenter foreman on a construction project [Project]. The Project was being performed in conjunction with another construction company [Other Company].
[7] On June 5, 2022, Mr. Scott attended a work meeting held by a project manager from the Other Company [Project Manager]. He says he spoke up at the meeting about some pay issues they were having. He says “multiple other employees there [were] speaking in the same tone.” BFI says Mr. Scott made accusations toward the Project Manager “in an aggressive and demeaning manner,” and berated her in front of everyone at the meeting. It says that after the meeting, the Project Manager reported feeling humiliated, disrespected, and intimidated by Mr. Scott, to the point that she did not feel comfortable being alone with him. BFI says that, on June 16, 2022, it issued a discipline letter to Mr. Scott, confirming that it had provided him with a verbal and written warning for his “unprofessional conduct” on June 5 [Discipline Letter].
[8] Mr. Scott filed his complaint to the Tribunal on June 16, 2022. He says he has attention-deficit-hyperactivity disorder [ADHD], which “makes [him] very passionate and excitable.” He says he had been seeing a therapist for over a year to try to improve his communication skills and overall mental health. He says BFI disciplined him on June 16 “for speaking to someone with the wrong tone of … voice,” despite a different manager assuring him that he did nothing wrong. He says someone told him that the Project Manager had asked for his termination and removal from the job site, but instead he received the Discipline Letter.
[9] Mr. Scott says the Discipline Letter made him feel uncomfortable and affected his self-confidence. He alleges that this was “not the first incident of discrimination against me from this company.” He says he has been made to feel as though he cannot speak up without fear of repercussions. BFI says it previously issued a discipline notice to Mr. Scott in December 2020 for “failing to follow safety rules and regulations.”
III Decision
[10] BFI applies to dismiss Mr. Scott’s complaint under s. 27(1)(c) of the Code. Deciding this type of application is part of the Tribunal’s gatekeeping function. Under s. 27(1)(c), the Tribunal can remove complaints that have no reasonable prospect of success and therefore do not warrant the time and expense of a hearing. The Tribunal’s task under s. 27(1)(c) is to look at the evidence provided 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 come out at the hearing: University of British Columbia v. Chan, 2013 BCSC 942 at para. 77.
[11] To succeed at a hearing, Mr. Scott would need to make his case by putting forward evidence that proves (1) he had a disability, (2) he experienced an adverse impact in employment, and (3) his disability was a factor in the adverse impact: Moore v. British Columbia (Education), 2012 SCC 61 at para. 33. BFI says Mr. Scott has no reasonable prospect of making his case. I agree that Mr. Scott’s complaint should be dismissed on this basis.
[12] In an application under s. 27(1)(c), the onus is on the respondent to establish the basis for dismissal: Paulsen v. BC Hydro and another, 2020 BCHRT 75 at para. 11. However, where the respondent disputes elements of the complainant’s case, it is up to the complainant to ensure there is some evidence before the Tribunal capable of supporting the complaint moving forward: Sincraian v. Board of Education of School District No. 38 (Richmond), 2024 BCHRT 53 at para. 17; see Rutkowski v. Unite Here Local 40, 2018 BCHRT 236at para. 30. In the present case, I find that the information before me falls short of this low threshold.
[13] Mr. Scott alleges that he had ADHD, which caused or contributed to his conduct on June 5, 2022, which gave rise to an adverse impact in the form of the Discipline Letter. The only evidence in support of these allegations is the statement in his complaint that his ADHD “makes him very passionate and excitable,” as well as a vague reference to “seeing a therapist” to try to improve his “communication skills and … overall mental health.” I accept that Mr. Scott may be able to prove the first element of his case – i.e., that he had ADHD, which was a disability under the Code. However, in my view, the evidence before me could not support a finding that his ADHD was a factor in the conduct that gave rise to the Discipline Letter.
[14] I do not accept that this type of connection can be inferred without additional evidence or explanation. For such an inference to hold based on the information before me, I would need to assume that a person with ADHD is unable to communicate in an appropriate tone and manner in the workplace. The Tribunal cannot make this type of stereotypical assumption: see Harris v. Rize Alliance Properties and another, 2019 BCHRT 223 at para. 40; see also Stewart v. Elk Valley Coal Corp., 2017 SCC 30 at para. 39.
[15] I find that the information before me is too vague and general to engage the Code’s protection against disability-related discrimination. Mr. Scott has not pointed me to evidence capable of connecting his ADHD to the conduct deemed discipline-worthy by BFI. As a result, in these circumstances, I am satisfied that Mr. Scott’s complaint has no reasonable prospect of success and should not proceed to a hearing.
IV CONCLUSION
[16] BFI’s application is granted. The complaint is dismissed: Code, s. 27(1)(c).
Jonathan Chapnick
Tribunal Member