Thandi v. BC Ministry of Public Safety and Solicitor General, Corrections Branch, North Fraser Pretrial Centre, 2025 BCHRT 294
Date Issued: November 27, 2025
File(s): CS-001636
Indexed as: Thandi v. BC Ministry of Public Safety and Solicitor General, Corrections Branch, North Fraser Pretrial Centre, 2025 BCHRT 294
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:
Rajinder Kaur Thandi
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, Corrections Branch, North Fraser Pretrial Centre
RESPONDENT
REASONS FOR DECISION
Tribunal Member: Jonathan Chapnick
Counsel for Complainant: Larry Smeets
Counsel for Respondent: Rochelle Pauls and Joanne Kim
Date and Location of Hearing: January 27-31 and February 10, 2025, Videoconference
Closing submissions complete: May 2, 2025
A. North Fraser Pretrial Centre
D. Past accommodations at NFPC
A. Events giving rise to the complaint
B. Corrections did not fulfill its duty to accommodate
B. Order to be returned to work (reinstatement)
C. Compensation for lost wages
D. Compensation for expenses incurred
E. Compensation for injury to dignity
F. Pre- and post-judgement interest
I INTRODUCTION
[1] This is a case about disability-related accommodation in the workplace. The complainant, Rajinder Kaur Thandi, was employed by the respondent, His Majesty the King in Right of the Province of British Columbia as represented by the Ministry of Public Safety and Solicitor General, Corrections Branch, North Fraser Pretrial Centre [Corrections], as a correctional officer [CO] at the North Fraser Pretrial Centre [NFPC]. In 2016, Ms. Thandi was injured in a series of car accidents and went on medical leave. She never returned to work at NFPC. She alleges that she was denied the opportunity to return to work because Corrections failed to reasonably accommodate her. She says this was discrimination in employment based on physical disability, in contravention of s. 13 of the Human Rights Code.
[2] Corrections denies discriminating. It acknowledges that Ms. Thandi experienced a disability-related adverse impact in her employment, but argues that what happened was justified. Considering the work environment at NFPC and the core duties of a CO – specifically the requirement for inmate contact – Corrections says it could not have accommodated Ms. Thandi’s physical limitations and restrictions without experiencing undue hardship.
[3] The main issue before me is whether Corrections has established its justification defence by proving it fulfilled its duty to accommodate. For the reasons that follow, I find that it has not. Corrections’ process of accommodating Ms. Thandi fell short, as did the outcome of its accommodation efforts. As a result, Ms. Thandi’s complaint is justified and she is entitled to remedies, including reinstatement, compensation for her losses, and compensation for injury to her dignity, feelings, and self-respect.
[4] To make my decision, I have considered all the evidence and submissions of the parties. In my reasons, I only refer to what is necessary to explain what I decided.
II BACKGROUND
[5] The hearing of this complaint took six days. Various documents were entered into evidence and I heard testimony from nine witnesses. I am satisfied that all witnesses testified honestly to the best of their ability. I have assessed the credibility and reliability of the evidence presented, and made findings of fact on a balance of probabilities. In this section, I outline the background to the complaint, discussing some of the evidence and outlining some of my findings of fact. Later in the decision, I discuss other evidence and make additional findings of fact regarding the specific events that gave rise to the complaint.
A. North Fraser Pretrial Centre
[6] The Corrections Branch is the branch of the provincial government that is responsible for corrections: Correction Act Regulation [Regulation], s. 1. Corrections’ Adult Custody Division operates several correctional centres in BC, including NFPC. NFPC is a “secure” (i.e., “maximum security”) remand centre, which houses hundreds of inmates who are awaiting trial or sentencing.
1. Pods (living units), pod control, and centre control
[7] NFPC has three housing “pods,” each of which is comprised of two to four regular living units with cells for inmates across three floors connected by stairs. In addition to regular living units, one of the pods has a segregation unit, a healthcare unit, and an isolation unit, each with a number of cells. There is also another healthcare area in the pod, where health authority staff are located and COs provide security.
[8] In each pod, there are COs in a “pod control bubble” [Pod Control], who use a computer system to control staff and inmate movement in and out of the pod by electronically opening the doors to and in the living units, lobby area, and hallway. Pod Control officers also have other responsibilities, such as taking inmate counts and supervising certain visits.
[9] Movement outside the pods is controlled by COs in a separate, “centre control” area [Centre Control]. COs in Centre Control also manage any exterior movement in or out of NFPC. Other responsibilities of Centre Control officers include making announcements over the intercom (e.g., emergencies, lock-up times), dealing with alarms (e.g., fire alarms), and managing visitors and contractors coming into the facility.
2. Reception, records, and programs
[10] There is a public reception area at NFPC. On weekdays, two administrative staff sit at the front desk and do reception duties. COs come to reception to assist the administrative staff and facilitate things like in-person visits. In the evening, after the administrative staff have left, COs continue to sit at reception to process after-hours visits. Once those visits end, the COs at reception are supposed to go and assist at the pods.
[11] NFPC also has COs in a “records” department, which is the admissions and discharge area of the facility [Records]. There are several video court booths there, as well as some inmate cells and an office for COs working on classifications. There is a mental health nurse at Records, and a medical intake nurse. There are also COs working in a Records “bubble.” For example, in the bubble, there are “booking officers,” “audit officers,” and “release officers.” In addition, there are “floor security officers” in Records, who move individuals through the various admissions and discharge processes. Records also has “effects officers” and “change room officers.”
[12] There is also an area in NFPC called the “F and G block.” Inmate work programs take place there, and Corrections uses part of the area for employee training programs (e.g., officer safety refresher, occupational first aid, emergency response team). There are classrooms there with computers, which Corrections uses for new recruit training and other activities.
[13] COs provide instruction and supervision at the inmate work programs. COs also work in various other programs at the facility, including core programming and programs that provide security. For example, “mental health liaison officers” provide support to mental health unit staff, and “case managers” develop and facilitate case plans for certain inmates.
3. Living unit officers, prowl, and responders
[14] In the pods, each living unit has one CO stationed on the floor to supervise during times when the cells are unlocked. There are also COs assigned to supervise the other types of units (e.g., segregation). In addition, there are “prowl” COs assigned to each pod, who help the living unit officers with things like cell inspections, potential conflict situations, escorts, and general coverage for breaks.
[15] Prowl officers serve as designated “responders” for their assigned pod. If there is an emergency there, the prowl officers respond to it along with the other COs in the pod. Responders may also come from other areas of the facility, such as prowl officers from other pods, COs from Records, and correctional supervisors [CSs]. Each shift at NFPC has a set of positions designated as responders. In addition to the designated responders, when there is a more severe incident in a pod, an “emergency response team” and/or other COs (e.g., COs from other pods) and CSs may be called to respond.
4. The work of COs at NFPC
[16] COs at NFPC and other Adult Custody Division correctional centres are unionized. The terms and conditions of their employment are set out in a “master” collective agreement [Master Agreement] and a supplementary, “component” collective agreement [Component Agreement]. Their duties, responsibilities, and working conditions are outlined in a generic position description [Position Description]. Other provisions regarding their work are set out in the Correction Act [Act] and the Regulation.
[17] The Position Description states that all COs must successfully complete the Correctional Officer Physical Abilities Test [COPAT]. Corrections’ evidence is that the COPAT is completed during the recruitment process and provides a good overview of the physical demands of the job. It involves “running, stairs, obstacles that an individual has to jump over, a push/pull station, and a dummy carry” – all of which “must be completed within a time limit.”
[18] COs work under the direction of CSs. The broad purpose of the CO position is to maintain the security and safety of inmates within their care (Position Description at 1). To this end, Corrections uses a “direct supervision model” at NFPC. COs are physically present in the living units, interacting directly with inmates, doing in-person cell inspections, and doing frequent, in-person visual checks. I accept Corrections’ evidence that, through direct supervision, COs provide dynamic security (i.e., maintaining a physical presence and moving around to monitor behaviour and prevent problems), procedural security (i.e., ensuring rules are being followed), and physical security in the units.
[19] The day-to-day work of a CO at NFPC depends on the nature of their current “post.” For example, the duties and responsibilities of a CO working a shift in Centre Control will be different than those of a CO supervising inmates in a living unit. NFPC has post rotation procedures, under which COs can rotate through the various posts at the facility. Guidelines for Adult Custody Division correctional centre post rotations are set out in the Component Agreement. In the preamble to those guidelines, the parties to the Component Agreement state that the “practice of rotating staff through work groups is desirable to broaden employee diversity and expertise, enhancing security, safety, efficiency of the centre, and to develop a culture of professional development throughout the lifecycle of an employee’s career.” On the evidence before me, I am satisfied that this statement is accurate.
[20] The Position Description states that the CO “position works in a 24 x 7 operation, frequently exposed to potential physical and medical hazards through daily contact with inmates” (Position Description at 5). NFPC’s current warden, Harbippan Cheema, testified that, at NFPC in 2024, there were over 300 incidents involving violence, over 100 incidents involving the use of force with inmates, and almost 100 assaults on correctional staff.
[21] I accept Corrections’ evidence that no matter a CO’s post and regardless of whether they are a designated responder, on any given day a CO at NFPC may have some degree of inmate contact through the normal course of carrying out either regular duties or emergency response duties. At the same time, I find, based on the testimony of both parties’ witnesses, that Corrections is able to provide COs at NFPC with temporary, modified work arrangements involving little to no contact with inmates. I will return to this below.
5. Officer Safety Refresher course
[22] COs at NFPC are required to participate in an Officer Safety Refresher [OSR] course every three years. The course is facilitated by use-of-force instructors, and is aimed at ensuring that COs remain familiar with the continuum of use-of-force options (e.g., pressure points, joint manipulation, pepper spray, baton use) in the event that they need to utilize them.
[23] Ms. Thandi testified that the OSR was introduced in 2012. The course is only required for COs and CSs. Management at NFPC (e.g., deputy wardens, assistant deputy wardens) are not required to take it every three years.
B. Ms. Thandi
[24] Ms. Thandi began working as a CO at NFPC in 2005. She started as an auxiliary CO and then became full-time (four days per week). On her days off from NFPC, Ms. Thandi worked part-time for the RCMP. After leaving the RCMP in 2012, Ms. Thandi started a new part-time job as a longshore worker, where she continued to work during the time period relevant to the complaint.
[25] During her years at NFPC, Ms. Thandi worked mostly as a living unit officer in some of the facility’s more challenging units. She expressed an interest in rotating to other posts, but largely remained assigned to living unit officer duties.
[26] In or around 2012, Ms. Thandi injured her neck during use-of-force training. She testified that she was paired with a male CO who was much bigger and stronger than her. She said she was pushed aggressively and fell hard on her back. As a result of her injury, Ms. Thandi went off work and received workers compensation benefits. She subsequently returned to work under a WorkSafeBC graduated return-to-work [GRTW] plan. The three-week plan involved several shifts in Pod Control, performing light duties subject to certain physical limitations. Ms. Thandi testified, and I accept, that she had no contact with inmates during that GRTW.
[27] The evidence before me indicates that, over the years, Ms. Thandi consistently received positive performance appraisals. In 2015, however, her review stated that she was not meeting expectations primarily because of relatively high sick leave usage that year. Her supervisor at the time commented that “this [sick leave] issue forces me to consider her entire performance in 2015 as unsatisfactory.” Ms. Thandi disagreed with this appraisal, commenting on the review form that the majority of her sick time was due to “a confirmed injury,” which she could not control and for which she had submitted corroborating documentation. She reiterated these comments in her testimony at the hearing. On September 22, 2015, an assistant deputy warden at NFPC gave Ms. Thandi a letter advising that there were “consequences for continued poor attendance” [Attendance Letter]. The letter outlined Ms. Thandi’s sick time dating back to 2009, and advised her that, unless there was substantial and sustained improvement in her attendance, the assistant deputy warden would recommend her for dismissal from the public service. In addition, the Attendance Letter said Ms. Thandi was being removed from an eligibility list for acting CS assignments. Ms. Thandi was also denied a job share request in early 2016 based on her 2015 sick leave usage.
[28] In 2016, Ms. Thandi was involved in a series of car accidents, and suffered injuries to her neck, lower back, right shoulder, and hips. She went on sick leave on May 24, 2016 and was later accepted for long-term disability [LTD] leave, effective November 24, 2016. In a letter to Ms. Thandi on January 23, 2017, the LTD benefits provider, Great-West Life (as it was known then) [GWL], stated that: “Your employer is committed to ensuring you experience a safe, timely and sustainable return to work, and is willing and able to facilitate a successful return to work by modifying duties and/or assigning you alternate tasks. If you are capable of modified, light or alternative duties you must advise us accordingly.”
C. GRTW process at NFPC
[29] The BC Public Service Agency [PSA] provides human resources support to Corrections. The PSA’s Workplace Health and Safety Branch [WHS] provides Corrections with case management services, information, and advice with respect to employees on LTD. An occupational health nurse [OHN] and return to work specialist [RTW Specialist] were the primary WHS representatives involved in Ms. Thandi’s file. Under the Master Agreement, there is also a “rehabilitation committee,” which, among other things, looks at whether an employee on LTD can return to work with accommodations such as modified duties, flexible scheduling, and/or job aids [Rehab Committee]. In Ms. Thandi’s case, the members of the Rehab Committee included the OHN, the RTW Specialist, and a BCGEU representative [BCGEU Rep]. At NFPC, the then Assistant Deputy Warden (Staffing) [ADW-Staffing], Matthew Waters, was Corrections’ point person for Ms. Thandi’s return to work. He is currently a deputy warden at NFPC. For convenience, I will refer to him as DW Waters.
[30] DW Waters started at NFPC in 2008 and has worked his entire career there. He became an assistant deputy warden in 2017 and was promoted to a deputy warden position in 2024. At the hearing, he described his previous ADW-Staffing position as the “human resources role for the correctional officers” at NFPC.
[31] DW Waters was involved in many GRTW processes for employees at NFPC when he was ADW-Staffing. He testified that, at times, he would have six to eight GRTWs happening during the same time period. He described the GRTW process at NFPC as follows:
The process for a gradual return to work would be that the employee would provide a [medical form], which would state what their restrictions and limitations were, if any. Part of that form would go to [WHS], which would have confidential medical information on the bottom. If we’re able to work within the restrictions and limitations that are listed, then we would develop a plan for them to return to the work site with those restrictions and limitations in mind … and work with them while they’re undergoing … whatever they need to do to be fully cleared for full duties.
[Provides example of employee with ankle injury who is trained to work in Pod Control]
If they’re pod trained, that might be an area where there’s a defined period of time where it’s, you know, ‘three to six weeks – limited inmate contact.’ If that’s the restriction and limitation that’s listed on the [medical form] and they have the appropriate training, that may be an avenue where we would be able to put someone in pod for a determined period of time. So, what I would do is I would work with them to get them into an appropriate shift pattern … and then their gradual return to work letter would say that ‘you’re returning to work full time, with a temporary position change up until this date’ – and that would be based on what the restrictions and limitations, or what the documentation from the physician, said. So, we would say … ‘okay, for four weeks or for six weeks … we’re going to have you in pod. However, we do require updated medical before this day, to reconsider the position’ – and generally an individual would be cleared at that time, or they would come back with medical that says … they require a further period of time, at which point I would reassess whether … that accommodation could be maintained or whether we would need to pause it depending on the specific … documentation for that specific case.
[32] Elsewhere in his testimony, DW Waters outlined what happens when an employee returns to NFPC on a GRTW following a long medical leave:
A gradual return to work for a mental health injury might be slow reintegration back to – it might include a specific pod or a specific unit or something like that. When you’re talking about physical injuries – if somebody’s off work for a long period of time, it might be just gradual to get them reintegrated with the work environment. So, for me, I like to have somebody’s first day back just kind of plugged into a computer somewhere. Let’s get caught up on standard operating procedure changes. Let’s get our passwords updated. Let’s make sure we have access to everything. We can check our emails. That’s kind of the first day. From there, then it would be quite plausible that we would be looking at any coursework that needs to be required, or any training that needs to be updated – we would look to integrate that into a gradual return to work plan as well. There would probably be – or usually there would be – a portion of time that would be considered shadow time … where they’re essentially shadowing another officer. And that could be various different units and positions as well. And then there’s going to be a period of time where they’re going to be working on their own. Ultimately, at the end of the gradual return to work, we want to be able to ensure that the individual who’s returning is able to fully complete all duties, all jobs of a correctional officer without any issue. From our perspective, that’s what we’re looking for, but I also want to make sure that the individual has the confidence that they can do the job too before we’re done that GRTW as well.
[33] DW Waters testified that most GRTW plans “would probably be within the six to eight week range.” He was unable to recall ever doing a GRTW that was longer than eight weeks.
D. Past accommodations at NFPC
[34] DW Waters testified that he had read and was familiar with the “Manager’s Guide to Reasonable Accommodation” for the BC Public Service [Accommodation Guide]. While acknowledging that there is “no set formula for accommodation,” the Accommodation Guide “sets out a general process for managers and supervisors.” The process involves considering accommodation options in an employee’s existing position first, such as modifying the employee’s job duties or shifting job responsibilities among their co-workers.
[35] Several witnesses for Ms. Thandi testified about their observations regarding these types of accommodations at NFPC. First, Ms. Thandi testified about her own GRTW in 2012 (discussed above), as well as an accommodation in Pod Control for a CO returning from back surgery. She also recalled a “light duties” accommodation in the Records bubble for a pregnant CO with vertigo, who was not required to respond to emergencies.
[36] Elvis Besic also testified about accommodations at NFPC. Mr. Besic worked as a CO at NFPC from 2007 to 2024. He testified that “many years ago” there were a number of COs “on light duties” who were being accommodated at NFPC. He gave the names of three specific individuals and said that on multiple occasions, he was displaced out of his Pod Control post for their accommodations. He said that when those individuals were accommodated in Pod Control, “they had no direct contact with inmates.” In addition, Mr. Besic testified about COs in the late stages of pregnancy who were accommodated in Pod Control, giving the name of one specific individual.
[37] Ms. Thandi also called Levan Francis to testify. Mr. Francis worked as a CO at NFPC from 2006 to 2013. He testified that he was accommodated for one or two weeks in Pod Control upon returning to work following knee surgery, when he was not able to go up or down stairs without pain. He said Pod Control was isolated from the rest of the facility, and a CO on light duties could avoid inmate contact there. In addition, he testified that Pod Control officers did not need to have contact with inmates during security system failures.
[38] Both parties’ witnesses gave evidence about security system failures. If such a failure occurs at NFPC, it is a very serious issue, and COs have special responsibilities.[1] Mr. Francis said he was never involved in a security system failure during his time at NFPC. However, when they trained for system failures, it was the prowl officer – not the Pod Control officer – who handled certain critical floor responsibilities.
[39] Mr. Francis also gave evidence about his observations of accommodations for other COs at NFPC. He said there were “always accommodations all the time” at NFPC. He said he saw pregnant COs accommodated in Pod Control, as well a CO “on crutches … with a broken leg” and COs with back injuries. He provided the name of the individual who worked with a broken leg, testifying that they worked that way for “weeks.” Like Ms. Thandi, Mr. Francis also gave the name of a pregnant CO with vertigo who was accommodated in the Records bubble. In addition, he provided the names of two COs who were accommodated for shoulder and back injuries, respectively. He said it was a “common practice” for COs to be accommodated in Pod Control when they were on light duties or returning to work following an injury.
[40] Mr. Francis provided the name of a CO with “chronic fatigue” who returned to work following a two-year LTD leave and was accommodated “in visits,” which was “located in an administration area” where he had “no inmate contact.” Mr. Francis said the managers at NFPC worked in this so-called administration area. He testified that people working there did not have contact with inmates.
[41] Mr. Francis described the Records bubble at NFPC as being somewhat isolated:
There was different doors. There was two main – there was two doors … that people didn’t even have to enter the actual jail itself, going in and out of Records. There was one door that would lead just right to the outside hallway where the kitchen area is, and there’s another door that would go up towards administration, up to the staff lounge. So, a lot of people that worked in Records didn’t even have to enter the general area of the jail, beyond Centre Control.
[42] He described the work in Records as “light work” – COs there were “doing audits, they were doing accounts, filing documents.” He said the work was not strenuous and did not involve much interaction with inmates. More generally, he testified that it was possible for a CO to work in Pod Control, Records, Centre Control, the administration area, and the front desk, without inmate contact.
[43] Finally, Mukhan Gill was called to testify about his experience and observations at NFPC. Mr. Gill worked as a CO at NFPC from 2002 to around 2014. He testified about returning to work in a walking boot following an Achilles injury. He said he was accommodated with filing duties and no inmate contact, working his post in the Records bubble. Mr. Gill testified that COs could be posted in Centre Control, Pod Control, the Records bubble, or visits to avoid inmate contact.
[44] Corrections did not challenge the credibility of Ms. Thandi’s witnesses or the substance of their testimony. I appreciate that Ms. Thandi and Messrs. Besic, Francis, and Gill were not in management at NFPC and were not privy to other COs’ employment records, medical information, return-to-work plans, or accommodation arrangements. However, I am satisfied that their evidence, taken together and considered as a whole, reliably establishes that, between 2002 and 2016, there were several occasions when pregnant COs and COs with various types of serious physical injuries were temporarily accommodated with light duties and little to no direct inmate contact, in Pod Control, in Records, and performing visits duties. The lengths of the accommodations ranged from one or two weeks, to several months.
[45] For its part, Corrections’ evidence – which I accept – was that accommodating a CO who is unable to have inmate contact is difficult, and that even modified posts “will still have some risk of inmate contact.” Warden Cheema and DW Waters testified that, in the event of inmate violence, COs need to be able to defend and protect themselves and others. They also testified about operational challenges associated with providing COs with modified duties, particularly where the CO is restricted from inmate contact. They said that providing employees with light duties on a long-term or indefinite basis at NFPC negatively impacts Corrections’ ability to accommodate other employees with temporary or short-term restrictions. They also said that, when Corrections modifies an accommodated employee’s post to make it “light” or remove inmate contact, it necessarily shifts duties to employees in other posts, which increases the burden on those other employees. Finally, both parties’ witnesses testified about perceptions of unfairness and impacts on co-workers (e.g., “bumping”) when COs in the past were granted multi-year “light duties” accommodation arrangements at NFPC.
III ISSUE
[46] I will discuss the events that gave rise to Ms. Thandi’s complaint further below. It is not disputed that, beginning in late-2018 (when her LTD was coming to an end), Ms. Thandi asked to return to NFPC on a GRTW plan. The evidence also establishes that her requests were not granted because Corrections said it could not accommodate her disability-related physical limitations and restrictions, given the work environment at NFPC and the core duties of a CO – specifically, the requirement for inmate contact.
[47] Corrections acknowledges – and I find – that Ms. Thandi has made her case by proving that she experienced a disability-related adverse impact in her employment: Moore v. BC (Education), 2012 SCC 61 at para. 33. The issue before me, then, is whether Corrections has made out its justification defence. As I explain below, I find that it has not.
IV ANALYSIS AND DECISION
[48] The Code provides a justification defence against a complaint of discrimination in employment where a workplace requirement adversely impacts an employee in relation to a protected characteristic. Under s. 13(4), even if a complainant makes their case, there is no discrimination if what happened was “based on a bona fide occupational requirement.” To establish its defence in this complaint, the burden is on Corrections to show that the requirement it applied to Ms. Thandi (1) was adopted for a purpose rationally connected to the performance of the CO position, (2) was adopted in good faith, and (3) was reasonably necessary to accomplish its purpose – which involves consideration of the concept of accommodation to the point of undue hardship: British Columbia (Public Service Employee Relations Commission) v. BCGSEU, [1999] 3 SCR 3 at para. 60 [Meiorin].
[49] In arguing its justification defence, Corrections relies heavily on the 2013 decision of arbitrator John Hall regarding the grievance of a CO named Douglas Pearson: Government of The Province of British Columbia v. British Columbia Government and Service Employees’ Union, 2013 CanLII 61077 (BC LA) [Pearson]. The requirement in question in that case was “the requirement for Correctional Officers to have inmate contact”: Pearson at 5. In the case before me, the requirement is similarly identified in Corrections’ closing argument as being “the requirement for inmate contact” as part of a CO’s “core duties.”
[50] Corrections describes the purpose of this requirement as being “the safe and secure operation of the correctional facility.” Based on the evidence presented and my findings of fact (above and below), I accept this general description. Regular contact with inmates in the living units is a core part of the direct supervision model, which is intended to keep NFPC, and the people in it, safe and secure. I also accept that the general purpose of safety and security at NFPC is rationally connected to the performance of the role and functions of a CO, as set out in the Position Description and reflected in the Act and the Regulation.
[51] In addition, on the evidence before me, I accept that Corrections adopted the inmate contact requirement in an honest and good faith belief that it is necessary to accomplish its general purpose of safety and security, and not with the intention of discriminating against Ms. Thandi based on her disability. I acknowledge Ms. Thandi’s submission that the requirement was not adopted in good faith, “at least in so far as it concerned [her] request” for a GRTW at NFPC. I also acknowledge Ms. Thandi’s evidence about: alleged comments regarding her sex and marital status by an assistant deputy warden in 2015; being denied a job share while, allegedly, mostly white, male COs were granted job share positions; accusations made against her related to her sick leave in 2015; and remaining in living unit posts despite her requests to rotate into other roles. However, I find that the evidence before me is not sufficient to support an inference of disability-related discriminatory animus in Corrections’ handling of her GRTW requests. In any event, I find that Ms. Thandi’s suggestions of bad faith go to her employer’s efforts to accommodate her in the face of its inmate contact requirement, not to Corrections’ belief in the general necessity of the requirement itself.
[52] Ultimately, Ms. Thandi’s challenge to Corrections’ justification defence centres on the question of whether she was accommodated to the point of undue hardship. That is the part of the justification analysis where the parties focussed most of their arguments, and so it is the question I will turn to now.
[53] “‘Accommodation’ refers to what is required in the circumstances to avoid discrimination”: British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights), [1999] 3 SCR 868 at para. 22 [Grismer]. The “standard for accommodation is reasonableness, not perfection”: McCulloch v. Nociar and another (No. 2), 2025 BCHRT 111, citing Klewchuk v. City of Burnaby (No. 6), 2022 BCHRT 29 at para. 425; see Central Okanagan School District No. 23 v. Renaud, [1992] 2 SCR 970 [Renaud] at 944-995. It is about doing what is reasonable and practical to avoid the negative impact related to the affected person’s protected characteristics: Meiorin at para. 38.
[54] An employer’s duty to accommodate a particular employee is not open-ended; rather, it “is limited by the words ‘reasonable’ and ‘short of undue hardship’.” These are “not independent criteria but alternate ways of expressing the same concept”: Renaud at 984. Determining what constitutes reasonable accommodation, or accommodation to the point of undue hardship, is “a question of fact,” in the sense that the answer depends on the context and circumstances of the case: Renaud at 984. Relevant factors may include: the size of the employer’s operation; the financial cost of the accommodation and the employer’s ability to afford it; the degree to which the accommodation departs from the normal operation of the terms and conditions of employment set out in the collective agreement; the degree to which employees can be moved between different roles, positions, or worksites; the degree to which different roles, positions, or worksites can be modified; risks to safety (both the magnitude of the risk and the identity of those who bear it); and impacts on other employees: Central Alberta Dairy Pool v. Alberta Human Rights Commission, [1990] 2 SCR 489 at 521; Renaud at 984-987. The point of undue hardship is reached “when reasonable means of accommodation are exhausted and only unreasonable or impractical options for accommodation remain”: Kelly (by Kelly) v. Saputo Dairy Products Canada and another (No. 3), 2021 BCHRT 128 at para. 166, quoting Council of Canadians with Disabilities v. VIA Rail Canada Inc., 2007 SCC 15 [VIA Rail] at para. 122.
[55] The endpoint for an employer’s duty to accommodate may also be reached if the employee fails to do their part to facilitate the employer’s search for a reasonable accommodation: Renaud at 994-995. An employee’s responsibilities include cooperating in the accommodation process and bringing relevant accommodation-related information to the employer’s attention: Renaud at 994. If the employer can show “that it was prevented from achieving a reasonable accommodation by the unreasonable action or inaction of the complainant, the complaint may fail”: Latreille v. Solectron Global Services (No. 2), 2006 BCHRT 9 at para. 48.
[56] Ms. Thandi argues that Corrections did not meet its duty to accommodate in this case. She says Corrections has failed to prove that it could not accommodate her without experiencing undue hardship. Corrections disagrees, arguing that it met its duty to accommodate. Corrections also argues that Ms. Thandi “failed to discharge her duty to facilitate a reasonable accommodation.” As I discuss below, on the evidence before me, I do not accept Corrections’ arguments.
[57] The duty to accommodate an individual employee is “an exercise in common sense and flexibility,” comprised of both procedural and substantive components: Kelly at para. 164. In assessing whether an employer has met its obligations to an employee under the Code, the Tribunal considers the employer’s process of accommodating – or trying to accommodate – the employee, and the substantive outcome of those efforts: see Emergency Health Services Commission v. Cassidy, 2011 BCSC 1003 at paras. 34-38. In the present case, I find that Corrections fell short on both fronts, and I do not accept that Ms. Thandi’s conduct relieves Corrections from liability.
[58] Below, I first outline the evidence and my findings of fact regarding the events that gave rise to the complaint. Then, I explain why I am not persuaded that Corrections fulfilled its duty to accommodate.
A. Events giving rise to the complaint
[59] Ms. Thandi remained on LTD through 2017 and into 2018. In a May 2, 2018 email, the OHN asked Ms. Thandi to tell WHS when she would begin “therapy targeting return to work,” at which point WHS would “help ease [her] back into work.” The OHN subsequently provided an email update to DW Waters and the RTW Specialist on May 4, 2018, noting that Ms. Thandi’s “time frame for entering back into work hardening is not known at this time.”
[60] On September 10, 2018, GWL determined that Ms. Thandi was not disabled from working in any gainful occupation. As a result, pursuant to the terms of the LTD plan under the Master Agreement, she would no longer be eligible for LTD as of December 24, 2018. Ms. Thandi testified that, on the advice of BCGEU, she appealed this decision to a claims review committee [CRC] established under the Master Agreement. The appeal would be heard in February 2019.
1. GRTW plans from doctor in November 2018
[61] On or around November 7, 2018, the OHN received a letter from Ms. Thandi’s doctor, setting out a recommended GRTW plan, which involved Ms. Thandi working light duties (i.e., no heavy or overhead lifting, no repeated stair climbing, and no knee crunching or squatting) over a roughly four-month period, beginning on November 12, 2018 [First GRTW Plan]. Under the First GRTW Plan, Ms. Thandi was to work minimal weekly hours in November and December, increasing to two eight-hour day shifts per week on December 23, 2018, three shifts per week starting on January 21, 2019, and four shifts per week starting on February 18, 2019. She would then be reassessed to determine if she could resume full duties on a full-time basis.
[62] The RTW Specialist forwarded the First GRTW Plan to DW Waters on November 8, 2018. He responded by email later that day, stating:
I have some reservations about this GRTW plan, mostly regarding what her limitations and restrictions are. As a correctional officer, she would be walking stairs regularly as part of her daily duties. There is also the possibility that her [sic] she would be required to lift in excess of 20lbs. At this point, we would not be able to accommodate.
[63] Roughly half-an-hour later, the RTW Specialist replied to DW Waters:
She feels she would be able to do Pod and there was another position she felt she would be able to do.
Please look within the Ministry [of Public Safety and Solicitor General] and review the Managers guide to reasonable accommodation. A Manager’s Guide to Reasonable Accommodation [embedded hyperlink].
We should discuss when you get a minute?
[64] The RTW Specialist and OHN Nurse were not called to testify at the hearing. DW Waters’ testimony about the First GRTW Plan was summarized in Corrections’ closing argument, in relevant part as follows:
DW Waters gave evidence that he had reservations with the plan, in particular because [Ms. Thandi] would have to be able to walk stairs regularly and would need to lift in excess of 20 lbs.
With respect to Ms. Thandi’s statement that she “feels she would be able to do pod”, DW Waters testified that there were challenges with implementing these duties as part of a GRTW. Both DW Waters and Warden Cheema gave evidence about the critical role of a CO working in pod control in the event of a [security system failure] … . They gave evidence that this is a serious issue, and important enough that there is monthly training on … failure procedures – it is not a remote occurrence and DW Waters recalled more than one instance of it occurring while he was on shift.
DW Waters also had reservations about Ms. Thandi’s ability to protect herself, colleagues, and inmates in her custody given the physical restrictions and limitations provided by Ms. Thandi’s physician.
Further, DW Waters testified that at this point, there was no definitive time period for a full return to work indicated in the GRTW.
[65] On or around November 28, 2018, the OHN received another letter from Ms. Thandi’s doctor, setting out a new GRTW plan [Second GRTW Plan], which stated, in relevant part:
She can start a graduated return to work this week.
She can work 2 non consecutive 8 hour days a week for December 2018.
After that, she can work 3 non consecutive days 8 hrs a day for Jan. 2019.
She can then work 4 days a week 8 hrs a day for Feb. 2019.
She will be reassessed after this, and can then resume full time duties at regular hours after her treatments have been completed.
She can have limited inmate contact in her previous POD position work. She can go up and down stairs for [security system failure duties].
[66] Email correspondence and the OHN’s notes indicate that she discussed the Second GRTW Plan with DW Waters on December 6, 2018. Also on that day, the RTW Specialist emailed DW Waters to advise that Ms. Thandi’s “light duties restrictions” were noted as being: “no lift [sic] over 20 lb. no overhead lifting, avoidance of repeated stair climbing, avoid knee crunching/squatting. She can move her neck as tolerated.”
[67] For convenience, I will refer to the First GRTW Plan and the Second GRTW Plan, collectively, as the GRTW Plans.
2. Return-to-work call on December 12, 2018
[68] On December 12, 2018, DW Waters spoke to Ms. Thandi about a possible return to work. Both witnesses were asked about the phone call at the hearing, and their conversation is summarized in DW Waters’ contemporaneous notes and correspondence. Based on all the evidence, I make the following findings of fact regarding the conversation:
a. Ms. Thandi said she expected her treatments to conclude by mid-February, at which time she expected to be medically cleared for full CO duties.
b. Ms. Thandi said she would be able to defend herself in the event of a security system failure. She told DW Waters that her doctor was aware that a Pod Control officer is on the floor “direct with inmates” during a security system failure. She added that, if a prowl officer was there, the Pod Control officer working light duties could pass along the floor responsibilities to the prowl officer.
c. DW Waters brought up the OSR, saying it was mandatory every three years. Ms. Thandi expressed concerns about doing the course, considering that she was injured in the use-of-force training in 2012, and had witnessed another female CO get seriously injured during the course. She said she was willing to take the OSR in the future, as long as she was not paired up with another male CO who was much bigger and stronger than her. In a subsequent email to the OHN and RTW Specialist regarding his conversation with Ms. Thandi, DW Waters confirmed that Ms. Thandi’s issue with the OSR was “more from fear that she will get hurt than from a medical diagnosis that she cannot do it.”
d. Ms. Thandi told DW Waters that she could generally go up and down stairs without issue. She said her neck would not hinder her return to work, and her new treatments were helping. She also stated that all of her limitations and restrictions were temporary.
[69] In a December 13, 2018 email response to DW Waters’ description of the phone call with Ms. Thandi, the OHN advised that it “is the employer’s prerogative to consider the safety of the employee and others during a return to work with the type of limitations and restrictions documented, and therefore whether you support gradual return as outlined” in the GRTW Plans. She told DW Waters that he had “two options if you want more clarity.” First, DW Waters could write to Ms. Thandi’s doctor, “asking [the doctor’s] opinion regarding the safety concerns.” Alternatively, DW Waters could seek a referral to the occupational health team at WHS, which would “arrange clarification of limitations/restrictions vis a vis return to work in POD.” To do a referral to WHS, DW Waters would need to complete an “employee referral form” [ERF] and meet with Ms. Thandi to review and discuss the content of the completed form. She would have the option of accepting or rejecting the referral.
[70] DW Waters replied to the OHN’s email advice on December 18, 2018, opting for a referral to WHS. He said he still had concerns regarding Ms. Thandi’s fitness “for safety sensitive duties” in Pod Control. He explained that:
Working in pod is generally at a computer desk, where the officer would be responsible for electronically opening the doors to, and in, the four living units, lobby, and any other doors as required. They are also responsible for monitoring multiple cameras from each [living] unit, the lobby, and the hallway. Directly supervising any visits and answering the phone as required. A very important part of this position is to also maintain supervision of the four living units. In the event that there is a [security system] failure, this changes drastically.
[71] DW Waters explained that when there is a security system failure, “the pod officer would go down into the pod lobby and maintain normal movement.” In this scenario, “an officer would have to be able to defend themselves if there was an emergency event and I’m not certain that [Ms. Thandi] could do that with her specific restrictions and limitations.” DW Waters said he strongly believed Ms. Thandi should be referred to WHS “to ensure that we are not putting Thandi at risk by bringing her back to the worksite if not safe to do so.”
3. Employee referral form
[72] DW Waters completed the ERF and reviewed it with the OHN. The first page of the ERF requires the employee’s manager to identify the workplace issues giving rise to the referral from among several categories, including “health issues,” “absenteeism,” and “change in job performance.” For Ms. Thandi, DW Waters identified absenteeism – “excessive sick leave,” and health issues – “employee on a lengthy work disability absence.” In answer to a question in the ERF regarding when these issues began, DW Waters wrote: “Current absence began in 2016. Attendance has been high annually since 2009.” From his testimony, I take it that DW Waters meant to write that Ms. Thandi’s sick leave – not “attendance” – had been high since 2009.
[73] On December 21, 2018, DW Waters called Ms. Thandi and left a message, asking to set up a meeting to review the ERF. They ended up meeting early in the new year.
4. ERF meeting on January 8, 2019
[74] Ms. Thandi met with DW Waters at NFPC on January 8, 2019. Both witnesses testified about this meeting, and their conversation is summarized in DW Waters’ contemporaneous notes. Based on all the evidence, I make the following findings of fact regarding the meeting:
a. Ms. Thandi said she would not do the OSR course as currently structured. It needed to be more safe; she did not want to get another injury.
b. DW Waters stated that he did not feel that Ms. Thandi would be able to protect herself in the event of an emergency. He said he could not put her or her co-workers at risk.
c. Ms. Thandi indicated that she understood that her physical limitations and restrictions could be an issue in the event of a security system failure. However, she asserted that Corrections had accommodated other COs with physical limitations and restrictions in Pod Control in the recent past, including pregnant women and a CO who was returning to work following back surgery in 2016.
d. Ms. Thandi said she felt she would be “fully cleared in another 7 months.” DW Waters stated that he “didn’t think it was a good approach to try to come back if not medically cleared and safe to do so.” Ms. Thandi responded that there were other COs working “lighter duty posts” at NFPC, and that she could return to work without being medically cleared for full duties.
e. When they reviewed the ERF, Ms. Thandi took issue with the statement that her sick leave had been high since 2009. In response to her questioning, DW Waters showed her the Attendance Letter from 2015, and said the references to her past attendance were only for the purpose of providing background information.
f. After reviewing the entire ERF, Ms. Thandi told DW Waters she could not sign it that day and apologized. She said she needed more time to think it over. She indicated that her only issue with the form was the statement that she had high sick leave since 2009. She disagreed with that. At the hearing, Ms. Thandi explained that she was not comfortable with the references in the ERF to her “absenteeism” and “excessive sick leave” from several years prior – they seemed disciplinary to her.
g. DW Waters and Ms. Thandi made an appointment for her to come back on January 18, 2019, to either accept or reject the referral. DW Waters said that, if Ms. Thandi rejected the referral, Corrections would not be able to confirm that she was medically cleared to return to full duties.
[75] At the hearing, DW Waters said he was surprised that Ms. Thandi chose not to sign the ERF at their meeting. He testified that the ERF “is really for the benefit of the employee.” He said he thought the referral to WHS “was a good avenue for [Ms. Thandi] to get the documentation to allow her to come back to work.”
5. Meeting cancellation
[76] On January 10, 2019, DW Waters learned that Ms. Thandi’s LTD appeal would be heard by the CRC on February 22, 2019. In his view, with the appeal “date so close, it [did] not make sense to complete the ERF at [that] time.” As a result, he decided to cancel the upcoming meeting with Ms. Thandi.
6. Denial of request for GRTW at NFPC
[77] The CRC dismissed Ms. Thandi’s appeal on or around February 25, 2019, having determined that she was not disabled from working in any gainful occupation. In its decision, the CRC noted that “Ms. Thandi indicated that she had presented herself to the correctional facility as being fit to undertake Control Room duties,” and had “returned to work as a Longshoreman.” In the CRC’s opinion, this was consistent with its findings “that she is fit to undertake a light to sedentary occupation.”
[78] In the morning on February 28, 2019, the OHN emailed the RTW Specialist, advising that she had reviewed the CRC decision. She said Ms. Thandi was “capable of light to sedentary,” clarifying that “light physical demands” meant:
Up to 20 lb of lift occasionally (one third of the workday) or up to 10 lb frequently (two thirds of the day). For constant: weight lifting limited to negligible amounts.
The light category allows walk/stand to significant degree if weight carried is negligible. Allows sitting while pushing or pulling with arm or leg controls or working at a production rate pacing that requires push/pull of negligible.
[79] The OHN stated that if further clarification was required, they could discuss a functional capacity evaluation but would “need the employer to ask for an ERF.”
[80] In the afternoon on February 28, 2019, the RTW Specialist emailed DW Waters to tell him about the CRC’s decision. The RTW Specialist said she had confirmed Ms. Thandi’s limitations and restrictions, cutting and pasting the relevant information from the OHN’s earlier email. The RTW Specialist concluded her email by offering to speak to DW Waters and asking: “Are you able to accommodate?”
[81] DW Waters responded to the RTW Specialist’s email on March 7, 2019, stating that Corrections could not “meet these accommodations.” He said the limitations and restrictions outlined in the RTW Specialist’s email were “such that she would not be able to complete the duties of a Correctional Officer.” When asked during cross examination if Corrections’ decision at the time was that it could not accommodate Ms. Thandi’s return to work, DW Waters replied: “Yes, sir, we don’t have light to sedentary duties available.” He testified that all COs and CSs are “classified as responders.”
[82] Ms. Thandi never followed up with DW Waters after the CRC decision. Nor did DW Waters ever follow up with Ms. Thandi. Corrections made no further inquiries with Ms. Thandi regarding her requests for a GRTW as a CO.
[83] DW Waters testified that he understood the review of the CRC to be very similar to that which would be undertaken in the ERF process – they both “look to hash out what any of the limitations or restrictions are for an employee returning to work.” As a result, when the appeal to the CRC went ahead, he thought the ERF process was no longer needed. DW Waters’ understanding was that the CRC would identify Ms. Thandi’s limitations and restrictions, “and then [he] would be able to determine from there.” He added that he relied heavily on WHS for the medical component of the return-to-work process.
[84] During cross-examination, DW Waters recalled thinking Ms. Thandi’s limitations and restrictions were permanent at the time when he denied her accommodation request. However, he could not remember why he had thought that; he testified that he had no reason to conclude that Ms. Thandi was medically restricted from inmate contact on a permanent basis. When asked if Corrections had reviewed any functional capacity evaluations of Ms. Thandi when it denied her accommodation request, he said he did not know. When asked if he looked into accommodation options in other correctional centres, he said he had not. He testified that the job duties of a CO would be the same at other facilities. When asked if he considered accommodation options in the Records bubble, he said he had not, because people working there are designated responders. He testified that he was not aware of any past medical accommodations in the Records bubble, in Centre Control, or in visits duties. When asked if he considered postponing decision-making about accommodating Ms. Thandi until her recovery progressed, he said he had not, because “that would be outside my purview, because I followed the collective agreement.”
[85] When asked if it was possible to accommodate a CO in light to sedentary duties at NFPC, DW Waters said it was – if it was for a specific period of time:
Let’s say for example it’s an ankle injury or something like that … where they can handle limited inmate contact for a determinate period of time and then it would be reassessed, reevaluated to see if that’s something that we can continue with or not. Accommodations are not – they’re not something that’s open-ended or for an indeterminate period of time. It’s something that we reassess, reevaluate regularly to see if it’s something that is still required.
[86] In terms of what happened after he determined that Corrections could not accommodate Ms. Thandi, DW Waters testified that, at that point, “Ms. Thandi would have been dealing with the PSA.” He said he had no knowledge of her situation, other than thatshe was provided with the “options letter” – which I will discuss next. He said he did not know if Ms. Thandi was ever notified of his decision denying her request for accommodation.
7. Options letter
[87] After receiving DW Waters’ email on March 7, the RTW Specialist emailed a letter to Ms. Thandi that same day, setting out her options [Options Letter]. The RTW Specialist confirmed that Ms. Thandi’s LTD appeal was denied and the CRC had found her “capable of light to sedentary work and not totally disabled for a gainful occupation.” The RTW Specialist asked Ms. Thandi to choose one of the following options:
· Resignation; or
· Retirement (if eligible); or
· A further nine (9) months’ consideration before the Rehabilitation Committee for possible vacancy placement. (Placement under this option is limited to vacancies and does not include rights under the Article 13 BCGEU … for displacement of under three year employee, salary protection, comparable range placements, severance or relocation expenses.) This nine month period commences effective March 21, 2019 [reproduced as written].
[88] Ms. Thandi was asked to indicate her chosen option on an attached “option selection” form, and return the signed form within 20 calendar days. The RTW Specialist advised that if Ms. Thandi chose the Rehab Committee option but did not end up returning to active employment within the nine-month period, she would have “exhausted all rights, benefits or entitlements under any and all provisions of [her] collective agreement” and would “no longer have employee status.”
[89] The mention of “Article 13 BCGEU” in the Options Letter was a reference to Article 13 of the Master Agreement, which sets out comprehensive layoff and recall provisions, including provisions regarding displacement of junior employees (also known as “bumping rights”), placement in “comparable” jobs, salary protection, severance pay, and relocation expenses. The Options Letter indicated that most of these provisions did not apply to Ms. Thandi’s situation. Corrections’ evidence is that the “Article 13 process” available to Ms. Thandi was “meant to assist employees who cannot return to their previous position [to] find alternative employment within the public service.” The process “is triggered by confirmation that an employee cannot return to their previous position due to their medical restrictions and limitations.”
[90] Ms. Thandi did not respond to the Options Letter. Having received no response, the RTW Specialist emailed Ms. Thandi on May 13, 2019 to follow up. The BCGEU Rep also emailed Ms. Thandi. Later that day, Ms. Thandi emailed the BCGEU Rep and the RTW Specialist, stating that she had not received the Options Letter and asking that it be re-sent by registered mail. BCGEU couriered it to Ms. Thandi, along with a letter advising that the Rehab Committee wished to meet with her in person on May 23, 2019. The BCGEU Rep also notified Ms. Thandi of the May 23 meeting via email on May 16.
[91] Ms. Thandi did not attend the May 23 meeting. She testified that she did not know about it until the meeting date had passed. She said she did not receive the couriered materials from BCGEU until some time after May 23, and testified that she did not recall receiving the May 16 email from the BCGEU Rep. She said she would have attended the May 23 meeting had she known about it. In my view, nothing turns on whether Ms. Thandi received advance notice of the May 23 meeting.
[92] At the hearing, Ms. Thandi confirmed that she eventually received the Options Letter, but never responded to it. She explained that she did not want to resign or retire, and was waiting to hear back from Corrections regarding her request for a GRTW:
I feel like I was getting forced here … And this is what those conversations are about now: Sign the [options] letter, sign the letter, sign the letter, right? It’s like, no – what’s going on with my gradual back to work? I haven’t heard back from you guys. I need to know what’s going on with that [CO] job because, like I said, there’s other individuals – and I didn’t even have back surgery – there was a guy that was accommodated that had back surgery. So I want to know why – that these individuals are allowed to go back on a gradual work program and why I’m not. And why am I getting forced now to either resign or retire or look for another job?
…
This is why I didn’t sign this letter. Like I’m saying, I felt I was getting bullied to sign this letter. And I still haven’t heard a response back of why I’m not allowed – what’s going on with my back to work with the correction officer position?
[93] During cross examination, Ms. Thandi was asked if she signed the ERF or provided updated medical information to Corrections after the CRC issued its decision. She said she did not. She testified that “no one asked me for that.” She said the RTW Specialist told her that her CO position at Corrections was “done” and she would need to find a new job. She indicated that the BCGEU Rep was not helpful. She testified that “no one communicated with me about that [employee referral] form again.”
B. Corrections did not fulfill its duty to accommodate
[94] Corrections characterizes Ms. Thandi’s position in this case as asserting that her employer “ought to have created a position for her that did not include all of the core duties of a Correctional Officer for an indefinite period of time.” It says the decision in Pearson is directly on point with respect to the case before me, while also citing past Tribunal decisions regarding BC correctional centres: see Preiss v. B.C. (Ministry of Attorney General) (No. 3), 2006 BCHRT 587; Gill v. B.C. (Ministry of Justice) and others (No. 2), 2016 BCHRT 208; Backeland v. BC Government and Service Employees’ Union and others, 2023 BCHRT 52. Corrections puts forward evidence, observations, and findings of fact from those decisions, the majority of which overlap with what I have heard, observed, and found in this proceeding. Based on the evidence before me, and considering those other decisions, Corrections argues that “indefinitely accommodating Ms. Thandi in ‘Pod Control’ or any other position at NFPC would constitute undue hardship.” It also argues that “Ms. Thandi did not provide medical information that would enable NFPC to determine how long she required ‘light to sedentary’ duties, and she did not engage with the Rehab Committee with respect to a search for alternative employment within the public service.”
[95] For the following reasons, I am not satisfied that Corrections fulfilled its duty to accommodate Ms. Thandi, nor am I persuaded that Ms. Thandi’s acts or omissions prevented Corrections from achieving a reasonable accommodation.
1. Reasonable request for GRTW
[96] To start, in my view, Corrections mischaracterizes Ms. Thandi’s position. I appreciate that her timeline for returning to full CO duties was uncertain when Corrections was engaging in return-to-work discussions with her in December 2018 and January 2019. But despite this uncertainty, Ms. Thandi’s intention at that time was clear. The evidence establishes that she sought to return to full CO duties through a GRTW.
[97] It was reasonable for Ms. Thandi to request a GRTW. GWL’s January 2017 letter had stated that her employer was “willing and able to facilitate a successful return to work by modifying duties and/or assigning [her] alternate tasks.” She had been told that, if she was “capable of modified, light or alternative duties” she needed to advise accordingly. That is exactly what she did. The information from her doctor indicated that her disability-related limitations and restrictions were temporary. She told DW Waters that her treatments were helping. Full-time CO duties with no limitations or restrictions was her goal, but she and her doctor expected that it would take several months to reach it. She did not ask Corrections to create a new position for her, and she was not seeking a permanent accommodation. Nor has she sought those things in this proceeding.
[98] In this regard, Ms. Thandi’s case is distinguishable from Pearson, Preiss, and Backeland. Pearson was an accommodation case about a CO who was medically determined to be permanently disabled from having contact with inmates. That was not Ms. Thandi’s situation when she requested a GRTW. Preiss also involved a CO seeking an accommodation that was permanent in nature, and which the Tribunal notably distinguished from a situation involving “a temporarily disabled … correctional officer, who may need to be placed in a particular position for the duration of their disability.” Finally, Corrections’ reliance on Backeland also relates to a determination by the Tribunal regarding a permanent accommodation.
[99] Ms. Thandi did her part in November 2018. She brought forward information regarding her circumstances and accommodation needs to her employer. She also originated potential solutions (the GRTW Plans), which she was not obliged to do. At that point, Corrections was duty-bound to take reasonable and practical steps to remove disability-related barriers to Ms. Thandi’s attempted return to her job. As I discuss next, in my view, that is not what happened.
[100] Before moving on, however, it is important that I acknowledge Corrections’ reference, in its closing argument, to two reports regarding Ms. Thandi’s health and functional abilities. The first is a January 2019 medical-legal report by a physical medicine and rehabilitation specialist physician who assessed Ms. Thandi in December 2018 [M-L Report]. The M-L Report was commissioned by Ms. Thandi’s personal injury lawyer. It confirmed that, based on her presentation at the assessment, Ms. Thandi was not able to return to full CO duties at that time. This is consistent with the information that Ms. Thandi provided to Corrections during the relevant time period.
[101] The second report was also commissioned by Ms. Thandi’s personal injury lawyer. It is a February 2020 report regarding a January 2020 physical capacity evaluation of Ms. Thandi [PCE Report]. In the PCE Report, an occupational therapist opined that Ms. Thandi did not meet the strength requirements listed in the National Occupational Classification for a corrections officer, and did not have “the physical capacity to engage in a physically aggressive interaction with another individual.”
[102] Corrections makes a passing reference to these two reports in the “Undue Hardship” section of its closing argument, noting only that neither report indicates a time frame or prognosis for Ms. Thandi’s recovery. Corrections also refers to the PCE Report in its submissions on remedy, which I discuss later in this decision.
[103] There is no evidence that Corrections had any knowledge of the M-L Report or the PCE Report at the time of the alleged discrimination. In her reply, Ms. Thandi cites Pearson at 74 for the proposition that an employer “may not use after-acquired evidence to support its view that an employee could not be accommodated.” Along the same lines, the Tribunal has found that the question of whether an employer’s impugned decision-making was discriminatory must be assessed by reference to the employer’s conduct at the time and the information it chose to act upon: Senyk v. WFG Agency Network (No. 2), 2008 BCHRT 376 at para. 374. It is not open to employers to retroactively justify their decisions and actions based on medical information they did not have: CFO v. The Organization (No. 4), 2022 BCHRT 55 at para. 95, citing K v. RMC Ready Mix and another (No. 2), 2019 BCHRT 248 at para. 21.
[104] Like in Senyk, in my accommodation analysis, I have considered the nature of Ms. Thandi’s disability, prognosis, and functional limitations and restrictions as they were known to Corrections during the time period of the alleged discrimination.
2. Unreasonable threshold benchmark (standard CO duties)
[105] I find that Corrections’ approach to accommodating Ms. Thandi was flawed from the start. At the outset, DW Waters set an unreasonable threshold benchmark for deciding whether Corrections could accommodate. The evidence establishes that he took an all-or-nothing approach, effectively requiring Ms. Thandi to be able to immediately perform the full, regular (and emergency response) duties of a CO at NFPC, in order to be eligible for any accommodation at all. In other words, Corrections seemingly refused to accommodate Ms. Thandi at NFPC based on her inability to work there without accommodation.
[106] This approach is evident in DW Waters’ immediate and definitive response to the First GRTW Plan. Within roughly half-an-hour of receiving the plan, he stated that Corrections “would not be able to accommodate” Ms. Thandi at NFPC because her present stairs restriction was inconsistent with her regular CO duties, and because her present lifting abilities fell short of what she might possibly be expected to lift on a regular shift. Similarly, the challenges he referenced in his testimony regarding accommodating Ms. Thandi in Pod Control focussed on whether she was presently able to do the full scope of a Pod Control officer’s potential duties in the event of a security system failure.
[107] Along the same lines, DW Waters’ reservations regarding Ms. Thandi’s ability to protect herself and others were premised on the blanket application of the inmate contact requirement, with no allowance for temporary modifications or exceptions. On the evidence, I am not satisfied that he turned his mind to how his safety concerns might have been addressed through reasonable accommodation measures. In this regard, as I indicated above, I find that Corrections was able to provide COs at NFPC with temporary, modified work arrangements involving little to no contact with inmates. DW Waters’ own evidence was that a CO could be placed in Pod Control for up to six weeks with limited inmate contact. Similarly, I have found that the evidence of Ms. Thandi’s witnesses reliably establishes that there have been several occasions when pregnant COs and COs with various types of physical injuries were temporarily accommodated with light duties and little to no direct inmate contact not only in Pod Control, but also in Records and performing visits duties. On the evidence, I find that Corrections did not give these options reasonable consideration.
[108] I find that DW Waters’ focus on Ms. Thandi’s immediate readiness to perform full CO duties continued throughout his engagement on her file. In his December 18, 2018 email reply to the OHN, he justified going the ERF route by measuring Ms. Thandi’s present abilities against the full scope of a Pod Control officer’s potential duties in the event of a security system failure. He appears to have done so without accounting for the possibility – raised by Ms. Thandi during the December 12, 2018 phone call, and corroborated in Mr. Francis’ unchallenged testimony at the hearing – that certain floor duties are, or can be, performed by the prowl officer rather than the Pod Control officer during a security system failure.
[109] Similarly, in the January 8, 2019 meeting, DW Waters raised concerns regarding risks to Ms. Thandi’s safety in performing full CO duties in emergency situations. The evidence does not show that he explored reasonable options for mitigating those risks by, for example, modifying Ms. Thandi’s duties or shifting her responsibilities on a temporary basis. I appreciate DW Waters’ testimony that all COs and CSs are “classified as responders.” However, the fact that an employee is ordinarily required to perform a critical function does not mean they cannot be temporarily relieved of that requirement for reasonable accommodation purposes. In this regard, I note Ms. Thandi’s unchallenged evidence that a pregnant CO with vertigo was not required to respond to emergencies when she was temporarily accommodated in the Records bubble.
[110] Finally, Corrections’ all-or-nothing approach and singular focus on Ms. Thandi’s inability, in the short term, to perform full CO duties without accommodation is clear in DW Waters’ March 7, 2019 email to the RTW Specialist, in which he stated – in a two-sentence email – that Corrections could not accommodate Ms. Thandi because her “restrictions and limitations are such that she would not be able to complete the duties of a Correctional Officer.” In the circumstances of this case, it was not enough for DW Waters to review Ms. Thandi’s present limitations and restrictions and then, without further efforts and inquiries, rule out the possibility of any accommodation as a CO or at NFPC. Much more was required of him. His role in the accommodation process was not simply to identify all the disability-related barriers to Ms. Thandi’s return to her full-time CO duties. Rather, his task was to take reasonable steps, to make reasonable changes, in order to remove or reduce those barriers: Ross v. Interfor Adams Lake Division, 2024 BCHRT 143 at para. 70. A reasonable accommodation process involves inquiring into what an employee can do at work, and exploring reasonable solutions to allow them to do it. On the evidence, I am not persuaded that all such reasonable and practical inquiries and explorations occurred here.
3. Conflating uncertain timeline with indefinite accommodation
[111] Another flaw in Corrections’ approach to Ms. Thandi’s return to work is reflected in its characterization of what she was seeking as being an “indefinite” accommodation at NFPC. I appreciate that Ms. Thandi was not able to fully meet the core inmate contact requirement when she requested a GRTW, and the timeframe for her ultimate return to full duties was uncertain. It does not necessarily follow, however, that what she was asking for – or what Corrections needed to provide – was an indefinite accommodation. Ms. Thandi sought an incremental return to full-time CO duties through a phased GRTW plan. The information from her doctor at the time indicated that her disability-related limitations and restrictions were temporary, and that such a plan would be suitable. Contrary to Corrections’ assertion in its closing argument, there was, in fact, information from Ms. Thandi’s doctor to indicate a possible full return to work within months. I acknowledge Corrections’ evidence regarding the general challenges of lengthier accommodations, and I appreciate that uncertain timelines can be more difficult to plan around than specific dates and definitive deadlines. However, even in the face of an uncertain endpoint for Ms. Thandi’s GRTW, I find that Corrections could have reasonably explored (and attempted) fixed-term accommodation options, with clear dates and deadlines, and with the possibility of reasonable revisions or extensions depending on the circumstances.
[112] DW Waters’ own evidence was that GRTW processes at NFPC typically involved an initial, defined, set period of time during which an employee with limitations or restrictions would be accommodated in a suitable position. He said that, at the end of this initial period of time, if the employee had not been cleared for full duties, they would need to provide updated medical information. If the medical information indicated that the employee required a further period of accommodation, at that point Corrections would reassess the situation and determine whether to extend or pause the existing arrangement. DW Waters gave the example of an employee with an ankle injury, who would be accommodated with an appropriate shift in Pod Control with limited inmate contact for a defined period of time (e.g., six weeks). The employee’s return-to-work letter would say that they were returning to work full-time, but with a temporary position change up until a set date. At the end of the defined time period, the accommodation “would be reassessed, reevaluated to see if that’s something [Corrections] can continue with or not.” Structured in this way, I agree with DW Waters that the accommodation is not open-ended or indeterminate. Rather, it has defined parameters and timelines – it is “something that [Corrections can] reassess, reevaluate regularly, to see if it’s something that is still required.” On the evidence before me, I am not satisfied that Corrections could not have reasonably and practically tried to go this route with Ms. Thandi. Had there been evidence that Corrections had attempted, or at least genuinely considered, this type of arrangement for Ms. Thandi, my decision in this case may have been different.
[113] It is worth noting here that Pearson and Gill both involved multiple, concrete attempts to return a CO to work, even in the face of uncertain, disability-related circumstances. In Pearson, a CO on LTD was accommodated with a temporary “gradual rehabilitative employment return to work trial” in his records officer position at Fraser Regional Correctional Centre [FRCC]. The trial was initially scheduled to end after one month, but was extended for several months, during which time the CO was accommodated with no inmate contact in the facility’s control centre. Ultimately, it was determined years later that the CO’s disability was permanent, and Corrections denied his request to remain in a permanent accommodation in the control room. Gill similarly involved a multi-year accommodation process – in that case, at NFPC. The process involved several GRTW attempts, during which time Corrections continued to reassess and reevaluate.
4. Failure to make reasonable inquiries after CRC
[114] After the CRC, Corrections had a further chance to fulfil its duty to accommodate. Unfortunately, it chose not to take that opportunity. Instead, DW Waters made a definitive decision not to accommodate based on incomplete information, and without first notifying Ms. Thandi or giving her a chance to provide additional or clarifying information. He chose not follow through with the ERF process – a process, he testified, that was for Ms. Thandi’s benefit and would have potentially allowed her to return to work. In my view, his actions were not reasonable.
[115] It was not Ms. Thandi’s obligation to make inquiries to NFPC regarding what information Corrections may have needed from her for accommodation purposes after the CRC. Quite the opposite. The duty to accommodate is a positive obligation on the employer: Gordy v. Painter’s Lodge (No. 2), 2004 BCHRT 225 at para. 84; see also Mould v. JACE Holdings (No. 2), 2012 BCHRT 77at paras. 53-60. It is the employer, not the employee, who has the inquiry obligations in the accommodation process. In the circumstances of this case, Ms. Thandi had already done her part. She had brought the GRTW Plans to her employer. She had met with DW Waters and provided information related to her circumstances and accommodation needs. She had agreed to consider the ERF and meet again with DW Waters to discuss it. It was DW Waters who cancelled that potentially critical meeting. The ball was therefore in his court.
[116] I agree with Corrections that the information provided to NFPC after the CRC did not include a prognosis for Ms. Thandi’s return to full duties or a timeframe for her limitations and restrictions. That might have been why the OHN told the RTW Specialist that they could discuss doing a functional capacity evaluation for further clarification of Ms. Thandi’s circumstances, but NFPC would need to “ask for an ERF.” However, NFPC did not do so. No functional capacity evaluation was done or suggested to Ms. Thandi. DW Waters testified that he made the decision not to accommodate Ms. Thandi based on the (incomplete) information provided to him after the CRC. He did so without first notifying Ms. Thandi or giving her a chance to provide additional or clarifying information. In my view, these actions were inconsistent with Corrections’ positive obligation to seek all relevant information necessary to evaluate whether it could reasonably accommodate Ms. Thandi as a CO: Gordy at para. 84.
5. Failure to initiate reasonable proposals
[117] So far, I have outlined ways in which Corrections’ process of accommodating Ms. Thandi fell short. In certain circumstances, an employer may be able to fulfil its substantive obligation to accommodate an employee, despite a flawed accommodation process. However, that was not the case here.
[118] Regardless of whether the GRTW Plans, themselves, amounted to reasonable accommodation options, I am not persuaded that no viable options were available when DW Waters decided not to accommodate Ms. Thandi. On the evidence and authorities before me, I am not satisfied that Corrections could not have done anything else reasonable or practical to avoid denying Ms. Thandi the opportunity to attempt to return to work as a CO.
[119] For example, in my view the evidence establishes that Corrections could have temporarily accommodated Ms. Thandi with light duties and little to no inmate contact in Pod Control. I am satisfied that it could have structured the accommodation as DW Waters described in his testimony – i.e., with an initial, defined, set period of time (e.g., eight weeks) during which Ms. Thandi’s limitations and restrictions would be accommodated, at the end of which she would need to provide updated information. If the information indicated that she required a further period of accommodation, Corrections could have reevaluated the situation and assessed whether the existing arrangement could be extended or there were other reasonable options. I note that that the Master Agreement states that a temporary assignment following the cessation of LTD benefits “will not disqualify an employee from the nine month access period” for vacancy placement through the Rehab Committee (Appendix 4, Part II, 2.2(d)).
[120] I acknowledge Corrections’ concerns regarding Ms. Thandi’s ability to protect herself and others during the relevant time period, particularly in emergency situations and in the event of a security system failure. However, on the evidence before me, I find that she could have been temporarily relieved of emergency responsibilities. On the evidence before me, Corrections has not established that this would have caused it undue hardship.
[121] Nor has Corrections proven that the possibility of a security system failure rendered a temporary accommodation of Ms. Thandi unreasonable. First, the evidence shows that such failures – though very serious – rarely occur. For example, DW Waters testified that a security system failure had happened “maybe 5 times” during his over 16 years at NFPC. This means that the actual chance of a security system failure happening on any given day at NFPC was extraordinarily low (i.e., under 1 percent by any conservative estimate) and, in my view, would not have justified denying Ms. Thandi an otherwise reasonable accommodation. Second, and in any event, given the evidence of Ms. Thandi and Mr. Francis, I am not satisfied that floor duties during a security system failure could not have been performed by a prowl officer without causing undue hardship.
[122] I also acknowledge Corrections’ other concerns regarding extended accommodations involving no inmate contact – namely, its concerns regarding: safety, given that even modified posts could have “some risk” of inmate contact; negative impacts on Corrections’ ability to accommodate other employees; increased burdens on other COs; and perceptions of unfairness. In my view, however, Corrections’ evidence in these areas was too vague and general to support a finding of undue hardship in Ms. Thandi’s case. I note here that accommodation is not always easy, convenient, or cost-effective: Kelly at para. 165. Nor is it absolutely risk free, particularly in a “safety sensitive” context: see Grismer at paras. 24-27. Employers are required to consider options that may result in some hardship: Kelly at para. 165, citing Stewart v. Elk Valley Coal Corp, 2017 SCC 30 at para. 128 (per Gascon J, dissenting but not on this point); VIA Rail at para. 122. It is only when the hardship becomes “undue” that the duty to accommodate ends: Kelly at para. 165. The evidence before me is not sufficient to establish that a temporary accommodation in Pod Control would have pushed Corrections to such an endpoint.
[123] Moreover, even if I was persuaded that an accommodation in Pod Control was not a reasonable option at the relevant time, I would still not be satisfied that Corrections could not have done anything else reasonable or practical to avoid denying Ms. Thandi the opportunity to try to return to work as a CO.
[124] First, as I have discussed, the evidence establishes that temporary accommodations with light duties and little to no direct inmate contact had previously happened elsewhere at NFPC (e.g., in Records).
[125] Second, I note Arbitrator Hall’s findings in Pearson – a case that was relied on extensively by Corrections – regarding other types of temporary “no inmate contact” accommodations at Corrections’ other facilities, such as: temporary posts in the control centre at FRCC and Alouette Correctional Centre for Women [ACCW]; temporary, supernumerary project work assignments at ACCW; temporary reception posts at Surrey Pretrial Services Centre [SPSC]; and temporary administrative work (supernumerary) at SPSC. The second step of the process set out in the Accommodation Guide involves the manager or supervisor potentially considering alternate placements within the employee’s home ministry. Managers and supervisors are reminded to “enlist the assistance of more senior management and/or contact [human resources] to assist in these efforts.” DW Waters said that he did not do this, and Warden Cheema testified that this option was never brought to his attention.
[126] Finally, on the evidence before me, I do not accept DW Warden’s testimony that he could not have considered temporarily postponing decision-making about accommodating Ms. Thandi until her recovery progressed. I do not see how this kind of consideration would have fallen outside his purview as ADW-Staffing – which he said was the “human resources role for correctional officers” at NFPC. Nor am I satisfied that there is anything in the Master Agreement or Component Agreement that prevented exploring this type of “wait and see” option, or that such an option would have caused Corrections undue hardship. I note that the Master Agreement includes a broad “general leave” provision, which allows a manager to grant an employee a temporary unpaid leave of absence for any reason.
6. Article 13 process was not reasonable accommodation option
[127] Corrections says Ms. Thandi’s discrimination claim disregards the “Article 13 process” (i.e., nine-month consideration for vacancy placement through the Rehab Committee) that was available to her, and does not account for her failure to respond to the Options Letter or engage with the Rehab Committee for the purpose of facilitating a return to work. It argues that in refusing to engage with the Rehab Committee, “Ms. Thandi failed to discharge her duty to facilitate a reasonable accommodation.” I do not agree.
[128] Given my findings and conclusions above, I find that what was offered in the Options Letter was not reasonable at the time. The information from Ms. Thandi did not indicate that she could not return to a CO position at NFPC, and Corrections had not exhausted reasonable means of accommodating at NFPC or in a CO position elsewhere. Unlike in Pearson, where the CO was medically determined to be permanently disabled from having inmate contact, Ms. Thandi’s limitations and restrictions were stated by her doctor to be temporary, and there was a reasonable path forward to try a GRTW as a CO. It was unreasonable for Ms. Thandi’s employer to offer her only either resignation/retirement or accommodation in the form of a nine-month job search for a possible vacancy elsewhere in a different type of job. The Article 13 process might have been a reasonable accommodation option had it been offered concurrent to or after exhausting reasonable options as a CO; however, those are not the facts before me.
[129] Because the Article 13 process, on its own, was not a reasonable accommodation option in the circumstances of this case, Ms. Thandi’s failure to engage in it did not prevent her employer from achieving a reasonable accommodation and did not mark the endpoint of the duty to accommodate. In sum, then, for all of the above reasons, I am not satisfied that Corrections fulfilled its duty to accommodate in this case. As a result, it has not established its defence. Ms. Thandi’s complaint of discrimination in contravention of s. 13 of the Code is justified.
V REMEDIES
[130] Because I have decided that the complaint is justified, I now turn to the remedies sought by Ms. Thandi. Under s. 37 of the Code, Ms. Thandi seeks a “cease and refrain” order, as well as orders to be returned to work at NFPC and for compensation for lost wages, expenses incurred, and injury to dignity. In addition, she seeks an order for pre- and post-judgement interest.
A. Order to cease and refrain
[131] Under the Code, a cease and refrain order is mandatory if the Tribunal determines that a complaint is justified. I therefore order Corrections to cease the contravention of the Code and to refrain from committing the same or a similar contravention: Code, s. 37(2)(a).
B. Order to be returned to work (reinstatement)
[132] Section 37(2)(d)(i) of the Code allows the Tribunal to order a respondent to “make available to the person discriminated against the right, opportunity or privilege that … the person was denied contrary to this Code.” Under this provision, Ms. Thandi seeks an order that she “be returned to work” at NFPC. In her pre-hearing disclosure regarding remedies, she specified that she “requests an order that she be allowed either to return to work at [NFPC] in a full-time position like before, or in a job-share position.” For convenience, I will use the term “reinstatement” to describe what Ms. Thandi is seeking.
[133] In its pre-hearing disclosure regarding remedies, Corrections stated that it “opposes the granting of an Order pursuant to s. 37(2)(d)(i) of the Code” and “denies any breach of the Code which could result in an Order under this section.” However, Corrections led no evidence and makes no submissions in its closing argument regarding Ms. Thandi’s request for reinstatement.
[134] The Tribunal has previously noted that there have been many human rights decisions that have ordered reinstatement as a remedy: J.J. v. School District No. 43 (No. 5), 2008 BCHRT 360 at para. 504. Still, a review of the Tribunal’s decisions over the past 20 years suggests that remedial orders for reinstatement are quite rare.
[135] The purpose of a remedy under the Code is to put the complainant in the situation they would have been in but for the discrimination. Under s. 37(2)(d)(i) in particular, the goal is to restore “the right, opportunity or privilege” that was denied because of the discrimination. The case law indicates that when a reinstatement order will further this goal, it will be appropriate for the Tribunal to make it, unless such an order would not be “viable”: see Kalyn v. Vancouver Island Health Authority (No. 3), 2008 BCHRT 377 at paras. 527-544; Dunkley v. UBC and another, 2015 BCHRT 100 at paras. 736-739; J.J. at paras. 504-510.
[136] The assessment of whether to grant a request for a reinstatement order is necessarily contextual and fact-specific. In the area of employment, relevant factors may include: the scope and nature of the order sought; whether denying the order would constitute continuation of the discriminatory effect on the complainant; whether the respondent opposes the order; serious issues regarding the current state of key working relationships; serious negative impacts on the workplace, or the people in it, if reinstatement is ordered; events subsequent to the discrimination that would make reinstatement impossible; and whether a different type of remedy is more appropriate, given the loss incurred by the complainant as a result of the discrimination: see generally Kalyn; Dunkley; J.J.; Krieger v. Toronto Police Services Board, 2010 HRTO 1361; Buchanan v. WMC Management Services, 2006 BCHRT 339; Fraser v. BC Ministry of Forests, Lands and Natural Resource Operations (No. 4), 2019 BCHRT 140. This is not an exhaustive list, and not all of the factors listed will be relevant in every case.
[137] Applying this analysis, I consider it appropriate to grant Ms. Thandi’s request for a reinstatement order. Ms. Thandi was denied the opportunity to participate in a discrimination-free return-to-work process. Accordingly, within 60 days of the date of this decision, Ms. Thandi must notify Corrections that she wishes to return to work forthwith. Subject to her doing so, I make the following orders:
a. I order Corrections to restore Ms. Thandi’s employee status and initiate discussions with her on a GRTW as a CO at NFPC as soon as possible and by no later than 120 days after the date of this decision, unless the parties mutually agree on a different timeline;
b. I order that Ms. Thandi’s employee status be restored with all the rights and benefits she had before the discrimination;
c. I order Corrections and Ms. Thandi to make good faith and reasonable efforts towards agreeing on a GRTW plan;
d. Subject to Reinstatement Order #5, I order Corrections and Ms. Thandi to agree on a GRTW plan as soon as possible and by no later than 210 days after the date of this decision, unless the parties mutually agree on a different timeline;
e. If Ms. Thandi requests accommodation in order to return to work, or if the parties agree that she cannot return to work without accommodation, I order Corrections to follow the Accommodation Guide and otherwise accommodate Ms. Thandi to the point of undue hardship, and I order Ms. Thandi to do her part in the accommodation process [Reinstatement Order #5]
[collectively, Reinstatement Orders].
[138] I appreciate that the parties will need to address various issues and confirm various details pursuant to the Reinstatement Orders, some of which may involve third parties. The Tribunal will remain seized with respect to the Reinstatement Orders for one year following the date of this decision.
[139] In my view, the Reinstatement Orders further the goal of restoring the opportunity Ms. Thandi was denied in contravention of the Code and putting her in the situation she would have been in but for the discrimination. Moreover, since essentially I am ordering that Ms. Thandi be given a chance to participate in a discrimination-free return-to-work process, I am confident that the Reinstatement Orders are viable and appropriate.
C. Compensation for lost wages
[140] Section 37(2)(d)(ii) of the Code gives the Tribunal discretion to order the respondent to compensate the complainant for all or part of their wages or salary lost because of the discrimination. Under this provision, Ms. Thandi seeks a wage loss award of roughly $135,227.
[141] The goal of a compensation award under s. 37(2)(d)(ii) is to restore the complainant to the financial position they would have been in had the discrimination not occurred: Gichuru v. Law Society of British Columbia (No. 9), 2011 BCHRT 185 [Gichuru] at para 260, aff’d 2014 BCCA 396; Walsh v. Mobil Oil Canada, 2013 ABCA 238 at para. 33. To that end, a wage loss award aims to fully compensate the complainant for wages lost “solely as the result of the discrimination”: Benton v. Richmond Plastics, 2020 BCHRT 82 at para. 82, quoting Ayangma v. Eastern School Board and another, 2008 PESCAD 10 at para. 70.
[142] The burden of establishing an entitlement to compensation is on the complainant: Gichuru at para. 301. The evidence must support a finding of some causal connection between the discrimination and the loss claimed: Gichuru at para. 302. If a causal connection is established, the Tribunal must determine the appropriate amount of compensation: Gichuru at para. 303.
[143] In the present case, I have already found that Ms. Thandi was denied the opportunity to try to return to work because Corrections failed to reasonably accommodate her. Any wage loss that solely resulted from this denied opportunity was therefore caused by Corrections’ discrimination. The necessary causal connection has been established.
[144] The next, much more difficult question relates to the amount of wages lost solely as the result of the discrimination, for which Ms. Thandi is entitled to compensation. The burden is on Ms. Thandi to prove the amount of her entitlement. A claim for compensation may be denied if there is insufficient evidence to support it: Francis v. BC Ministry of Justice (No. 5), 2021 BCHRT 16 [Francis No. 5] at para. 83. For the Tribunal, determining the amount of a wage loss award is a matter of discretion, to be exercised on a principled basis: Gichuru at para. 303. The Tribunal can reduce an award if the complainant has failed to reasonably mitigate their damages, or to account for other contingencies: Benton at para. 91; Ayangma at para. 67.
[145] Ms. Thandi seeks an award for roughly six years of wage loss. This includes the three-month period of the Second GRTW Plan (December 2018 to February 2019) and the subsequent roughly 70-month period, including the entirety of 2020 to 2024. Based on the assumption that she would have worked the 312 hours recommended in the Second GRTW Plan, she seeks her wage losses for those hours. Based on the assumption that she would have returned to full-time CO duties in March 2019, she seeks her full-time wage losses thereafter, less mitigation. She notes that the total amount she is seeking would be greater if it included amounts for “lost entitlements and benefits,” but suggests she was unable to quantify those amounts for this proceeding.
[146] For its part, Corrections argues that the Tribunal should not order a wage loss award. It says Ms. Thandi mitigated any losses through her employment as a longshore worker. Further, it argues that Ms. Thandi has not established when or if she would have been “able to safely return to work as a CO.” In this regard, Corrections points to the PCE Report.
[147] I have taken the PCE Report into consideration in my determination of a contingency deduction below. However, I find that it is of limited assistance to me for the following reasons. First, the opinion in the PCE Report was based specifically on Ms. Thandi’s “present physical capacity” at the point in time when she was assessed. In the report, the occupational therapist noted that it was “beyond the scope of [her] expertise to provide an opinion relating to [Ms. Thandi’s] medical prognosis.” Second, in my view, the opinion in the PCE Report does not rule out the type of temporary, light duties accommodation Ms. Thandi was seeking at NFPC. On the contrary, the occupational therapist opined that Ms. Thandi was employable with some physical restrictions, “which may require modified job duties or other environmental/ ergonomic intervention.” Finally, the evidence in the PCE Report is untested. While the report was put to Ms. Thandi in cross examination and entered into evidence, Corrections did not introduce it as an expert report, and the occupational therapist was not called as an expert witness and did not testify at the hearing.
[148] On the information and submissions before me, I have determined that it is appropriate to order a total gross wage loss award of $19,712. My explanation for this determination is as follows.
1. Period between December 2018 and February 2019
[149] I have found that Corrections’ accommodation of Ms. Thandi was flawed from the start, dating back to when it first responded to the GRTW Plans. I therefore accept Ms. Thandi’s submission regarding the starting point for her wage loss claim. Beginning in December 2018, any wage loss that solely resulted from Corrections’ failure to fulfill its duty to accommodate Ms. Thandi is compensable.
[150] The year preceding Ms. Thandi’s medical leave was 2015. The parties agree that she made $64,067 as a CO that year, and the evidence establishes that she made $76,427 as a longshore worker.[2] Ms. Thandi put these figures forward as “baseline” amounts for calculating her wage losses, which I find reasonable based on the information before me.
[151] Using the $64,067 figure as a baseline, had Ms. Thandi worked full time during the three-month period of the Second GRTW Plan (December 2018 to February 2019), she would have earned a prorated amount of $16,017. Ms. Thandi does not assert that she would have worked full-time during this period. Rather, she estimates wage losses of $10,602 based on the recommendations in the Second GRTW Plan. In my view, both figures are too high, considering Ms. Thandi’s mitigation of her losses and given the substantial contingencies that must be accounted for. I begin with the contingencies.
[152] First, accommodations take time to plan, organize, and implement. Where an employee, like Ms. Thandi, has significant functional restrictions, it is unreasonable to expect an overnight solution: Graham v. School District No. 38 (Richmond) and CUPE Local 716, 2005 BCHRT 520 at para. 42. I do not accept that return-to-work recommendations received from Ms. Thandi on November 28, 2018 could or should reasonably have been implemented by Corrections the following week.
[153] Second, Ms. Thandi’s return-to-work timeline was uncertain. In early January 2019, Ms. Thandi told DW Waters that she felt it would be another seven months before she was “fully cleared.” This timeframe was seemingly different from the one contemplated in the Second GRTW Plan – and it suggested that Ms. Thandi might not return to full CO duties until July 2019. Even if Ms. Thandi’s return-to-work got started in December 2018, it may have unfolded more gradually than the timeline set out in the Second GRTW Plan, which itself contemplated a substantially reduced work schedule until at least February 2019.
[154] Third, even if Corrections fulfilled its duty to accommodate, there is no guarantee that Ms. Thandi’s GRTW would have been successful.
[155] In all of these circumstances, I find that a significant contingency deduction of 60 percent is warranted for this initial three-month period.
[156] Next, I turn to the issue of mitigation. Prior to her injuries, Ms. Thandi supplemented her full-time earnings as a CO with part-time earnings from employment as a longshore worker. It is not disputed that she resumed her employment as a longshore worker in December 2018 and continued in that employment over the entirety of her wage loss claim period. For the Tribunal’s purposes under s. 37(2)(d)(ii), I consider any longshore earnings above the 2015 baseline (prorated where appropriate) to amount to mitigation income, which I deduct from Ms. Thandi’s calculated wage loss. In my view, this approach aligns with the goal of restoring Ms. Thandi to the financial position she would have been in had the discrimination in this case not occurred. Deducting the entirety of her longshore earnings would be inconsistent with the pre-discrimination status quo.
[157] The evidence shows that during the three-month period in question, Ms. Thandi’s longshore earnings were $2,339 (December 2018) and $16,978 (January-February 2019), for a total of $19,317. Her prorated baseline longshore earnings for that period were $19,107, resulting in a mitigation deduction of $210. In sum, then, after contingency and mitigation deductions, I order a wage loss award of $6,197 for December 2018 to February 2019.
[158] Before moving on, I note that Corrections did not argue that Ms. Thandi’s failure to engage in the Article 13 process amounted to a breach of her duty to mitigate her losses for the period for which she is claiming lost wages: Sylvester v. B.C. Society of Male Survivors of Sexual Abuse, 2002 BCHRT 14 at para. 73. Nor does the evidence before me establish that alternative employment could have been found through the Article 13 process during Ms. Thandi’s nine-month access period. The onus is on a respondent to prove a complainant’s failure to mitigate by showing that the complainant failed to take reasonable steps to mitigate their loss and that alternative employment could have been found had they done so: Okano v Cathay Pacific Airways Limited, 2022 BCSC 881 at para. 23. This onus is a high one, and has not been met in this case.
2. Period between March 2019 and December 2024
[159] Using her 2015 earnings as a baseline, had Ms. Thandi worked full time during the remaining portion of the wage loss claim period (March 2019 to December 2024), she would have earned a prorated amount of $48,050 for the remainder of 2019, followed by $64,067 annually for five years. After mitigation deductions, she estimates wage losses of $39,871 for the remainder of 2019 and $84,754 for 2020 to 2024. In my view, these amounts must be reduced to account for uncertainties and unknowns.
[160] First, as I noted above, even if Corrections had fulfilled its duty to accommodate, there is no guarantee that Ms. Thandi’s return-to-work would have been successful. One barrier to success may have been the persistence of her limitations and restrictions. Ms. Thandi testified that her health at the time of the hearing was such that, if given the chance, she would be able to return to full CO duties. However, she was unable to say when she had reached this “full clearance” point, and the evidence before me suggests that it was not before early 2021. When asked about the PCE Report during cross examination, Ms. Thandi testified that when she was assessed in January 2021, she was still not at a point where she could perform full duties. On the other hand, she said she was able to do light duty CO posts at that time, and her health was continuing to improve.
[161] Second, even if Ms. Thandi’s return-to-work was successful, the persistence of her limitations and restrictions into 2021 raises questions about the timeframe for her return to full work hours. In my view, however, this uncertainty is somewhat counterbalanced by the combination of Ms. Thandi’s testimony regarding her current fitness, and the evidence of her consistent employment and long work hours as a longshore worker over the past six years.
[162] A final unknown is whether Ms. Thandi would have remained a CO for the duration of the wage loss claim period. At the hearing, she testified about serious concerns regarding management and the work environment at Corrections. She also expressed frustration and dissatisfaction with respect to her post assignments and being denied a job share. On the other hand, Ms. Thandi testified about her affinity for law enforcement, and the education and training that went into becoming a CO. I am also mindful of her long record of service as a CO prior to the discrimination and her consistently positive performance appraisals. In addition, I note the evidence of Warden Cheema and DW Waters that: there were no issues they were aware of with Ms. Thandi’s performance; she was a valuable member of the staff at NFPC; and they would have no issue with her returning to work at NFPC with the appropriate medical clearance. On balance, I am satisfied that Ms. Thandi is likely to have remained a CO had her return-to-work been successful.
[163] In all of the circumstances, I find that a contingency deduction of one-third (33 percent) is warranted for the remaining portion of the wage loss claim period (i.e., March 2019 to December 2024).
[164] As for mitigation during that time, the figures put forward in both parties’ submissions indicate that Ms. Thandi’s average monthly earnings as a longshore worker from March to December 2019 were roughly $7,721. After that, the parties agree that Ms. Thandi earned $137,715 as a longshore worker in 2020, and $120,000 in each of 2021, 2022, 2023, and 2024. Ms. Thandi’s prorated baseline longshore earnings for March to December 2019 were $63,689, resulting in a mitigation deduction of $1,300. Her longshore baseline was $76,427 for each of 2020 to 2024, resulting in a mitigation deduction of $61,288 for 2020 and a mitigation deduction of $43,573 for each of 2021 to 2024. In sum, then, after contingency and mitigation deductions, I order a wage loss award of $13,515 for March 2019 to December 2024.
3. Summary of wage loss calculations
[165] For the reasons set out above, I exercise my discretion to order a total award of $19,712 to compensate Ms. Thandi for gross wages lost solely because of the discrimination. The following table summarizes my calculations:
| Time Period | Baseline Wage Loss Amount | Contingency Deduction | Mitigation Amount1 | Final Wage Loss Amount2 | |
| Percent. | Amount | ||||
| Dec. 2018 to Feb. 2019 | $16,017 | 60% | $9,610 | $210 | $6,197 |
| Mar. 2019 to Dec. 2019 | $53,389 | 33% | $17,618 | $1,300 | $34,471 |
| 2020 | $64,067 | 33% | $21,142 | $61,288 | -$18,363 |
| 2021 | $64,067 | 33% | $21,142 | $43,573 | -$648 |
| 2022 | $64,067 | 33% | $21,142 | $43,573 | -$648 |
| 2023 | $64,067 | 33% | $21,142 | $43,573 | -$648 |
| 2024 | $64,067 | 33% | $21,142 | $43,573 | -$648 |
| Total | $19,712 | ||||
| 1 Longshore earnings above baseline. 2 After deduction of contingency and mitigation amounts. | |||||
D. Compensation for expenses incurred
[166] Section 37(2)(d)(ii) of the Code gives the Tribunal discretion to order the respondent to compensate the complainant for all or part of the expenses incurred because of the discrimination.
[167] Ms. Thandi says she “has incurred out-of-pocket expenses for the purpose of prosecuting her claim totaling $4,187.16,” for which she seeks a compensatory award. A breakdown of the award amount sought and supporting receipts are appended to her closing argument. The breakdown is as follows:
LIST OF OTHER CHARGES AND TAXABLE AND NON-TAXABLE DISBURSEMENTS (AS OF MARCH 21, 2025)
| Postage | $12.00 |
| Printing and copying (9,882 pages x $0.30/page) | $2,964.60 |
| Faxed pages (84 pages x $1.00/page) | $84.00 |
| Other (binders, tabs, accordions, long distance, agent and admin fees) 1″ binder (2 x $9) = $18.00 1.5″ binder (3 x $11) = $33.00 2″ binder (6 x $12.50) = $75.00 3″ binder (1 x $18.50} = $18.50 Tabs (279 x $0.50} = $139.50 Accordions (10 x $7) = $70.00 Long distance (6 mins x $0.45} = $2.70 File opening fee = $25.00 Law Society of BC Trust Administration Fee = $15.00 | $396.70 |
| Subtotal Applicable taxes (PST and GST) Total | $3,457.30 + $414.88 |
| $3,872.18 |
LIST OF DISBURSEMENTS
| DATE | DESCRIPTION | AMOUNT |
| 2021/04/20 | Payroll information from B.C. Maritime Employers Association | $114.98 |
| 2021/05/01 | Clinical records | $200.00 |
| TOTAL | $314.98 |
[168] Corrections’ closing argument is silent on Ms. Thandi’s claim for expenses.
[169] The Tribunal cannot order a respondent to compensate a complainant for the cost of legal services rendered after their complaint was filed: Francis v. Ministry of Justice (No. 4), 2020 BCHRT 160 at para. 36; see generally Canada (Canadian Human Rights Commission) v. Canada (Attorney General), 2011 SCC 53. However, out-of-pocket expenses incurred by a complainant during the Tribunal’s process (e.g., payments for expert reports, witnesses’ hearing time, service, postage, photocopies, faxes, office supplies, and document production) may be compensable in whole or part, even if they were initially paid by the complainant through their lawyer: see Francis No. 5 at paras. 223-230. A compensatory award for such expenses is properly ordered to the extent that the expenses were incurred as a result of the respondent’s contravention of the Code: J.J. at paras. 534-537. In J.J., for example, the Tribunal ordered compensation for only 40 percent of the complainant’s claimed expenses, because, while the complaint was justified in part, significant aspects of it were not justified and had taken up a large portion of the hearing time, resulting in additional expenses.
[170] In the present case, I have found Ms. Thandi’s complaint to be wholly justified. I also find that most of the expenses she has put forward are compensable, and the amounts are reasonable given the complexity and duration of this case. As a result, in my view, it is appropriate to award Ms. Thandi compensation in full for all of her listed expenses, except two. I decline to order compensation for the $25 “file opening fee” and the $15 “Law Society of BC Trust Administration Fee.” In my view, these expenses are more in the nature of costs for legal services rendered, and are not compensable.
[171] For these reasons, I exercise my discretion to order awards of $3,417.30 plus applicable sales taxes, and $314.98, for expenses incurred because of the discrimination
E. Compensation for injury to dignity
[172] Finally, section 37(2)(d)(iii) of the Code allows the Tribunal to order the respondent to pay the complainant an appropriate amount to compensate the complainant for injury to their dignity, feelings, and self-respect because of the discrimination. Ms. Thandi seeks an injury to dignity award in the amount of $130,000. Corrections argues that the circumstances favour an award at the low end of the scale for an employment case, in the range of $5,000 to $10,000.
[173] A violation of a person’s human rights is a violation of their dignity: Nelson v. Goodberry Restaurant Group Ltd. dba Buono Osteria and others, 2021 BCHRT 137 at para. 128. The purpose of an injury to dignity award is to address this harm: Young Worker v. Heirloom and another, 2023 BCHRT 137at para. 114. Such an award is meant to compensate the complainant, not punish the respondent. In exercising its discretion to order an injury to dignity award, the Tribunal generally considers three broad factors: (1) the nature of the discrimination, (2) the social context in which the discrimination occurred and the vulnerability of the complainant, and (3) the specific effect that the discrimination had on the complainant: Nelson at para. 128. The amount of the award depends on the context and circumstances of the case: Gichuru at para. 256. At the same time, for the purposes of consistency and fairness, it is often helpful to consider the range of awards made in similar cases: Young Worker at para. 114, citing Mr. D v. Path General Contractors and another, 2023 BCHRT 46 at para. 55.
[174] I begin by considering the nature of the discrimination, Ms. Thandi’s vulnerability, and the effect the discrimination had on her.
[175] Ms. Thandi lost a full-time, unionized job that she had held for over a decade. The evidence establishes that she was a good employee. After an extended period on medical leave, she wanted to go back to work; however, she was denied the opportunity to try, because her employer failed to take all reasonable and practical steps to support her. Given the significance of employment to a person’s dignity, cases involving lost employment typically attract higher awards: see, e.g., Senyk at paras. 463‐470. Employees are inherently vulnerable to some extent and are particularly vulnerable when they lose their employment: Wallace v. United Grain Growers Ltd (1997), 152 DLR (4th) 1 (SCC) at paras 93‐95; Senyk at paras. 463‐464.
[176] In terms of how the discrimination affected her, Ms. Thandi testified that she felt she was mistreated because of her disability, and deprived of the same accommodations and return-to-work opportunities afforded to her co-workers. She felt that her employer acted in bad faith and pushed her towards leaving, which really hurt her, given all the years she had given to Corrections. She also suggested that the discrimination impacted her financial security. She said she went through significant difficulties as a single woman with a mortgage. She said that if she had not had her employment as a longshore worker, she does not know what she would have done.
[177] For its part, Corrections asserts that while Ms. Thandi “was dissatisfied with the end result, the evidence demonstrates that she was treated respectfully and that efforts had been made to work with her during the time period she was seeking to return to work.” I find myself unable to entirely agree with this assertion. I accept that Corrections did not intend to discriminate against Ms. Thandi. However, in my view, its efforts not to discriminate fell short, and its treatment of Ms. Thandi during the time period relevant to the complaint was not always meaningfully respectful. I am particularly struck by DW Waters’ decision not to reach out to Ms. Thandi after the CRC. Like him, she had worked at NFPC for her entire career. She was a CO there when he was hired as a recruit. He testified that they had probably worked shifts together on occasion. Yet in March 2019, when her CO career was ostensibly coming to a disability-related end, he did not see fit, as the ADW-Staffing, to give her a call – to at least sympathize, wish her well, and thank her for many years of service. Nor was DW Waters even able to say at the hearing, all these years later, whether anyone had ever notified Ms. Thandi of Corrections’ decision denying her request for accommodation. In my view, this shows a disregard for Ms. Thandi’s circumstances.
[178] Corrections also argues that “Ms. Thandi’s lack of communication throughout the process is an additional mitigating factor that would favour a lower award.” I do not accept this. First, aside from her failure to respond to the Options Letter, the evidence does not show a failure on Ms. Thandi’s part to communicate with her employer throughout the time period relevant to the complaint. Second, I am not satisfied that Ms. Thandi’s failure to respond to the Options Letter or engage in the Article 13 process had any bearing on how the discrimination affected her dignity, feelings, and self-respect.
[179] In terms of other injury to dignity awards, Ms. Thandi points to Francis No. 5, in which the Tribunal ordered a net amount of $176,000. With respect, I find this to be an unhelpful comparison. I appreciate that, like Ms. Thandi, the complainant in Francis No. 5 had been a CO at NFPC. But the circumstances of that case were much different than those now before me.
[180] Francis No. 5 was a case about racial discrimination and retaliation. The Tribunal found that the comments and actions of the complainant’s co-workers “struck at the core of [his] identity and feelings of self-worth and emotional well-being.” He experienced “virtually the entire spectrum of racial discrimination and harassment in the workplace, [which] escalated into retaliatory behaviour, and resulted in a poisoned work environment.” Among other things, the complainant was called a “Lazy Black Man” by a supervisor who subsequently retaliated against him. The N-word was used by a CO to describe the complainant behind his back. He was called a “rat” and told he had a “target on his back” for complaining about his mistreatment. The discrimination rendered the complainant unable to work. He experienced a wide variety of severe and prolonged mental and physical health issues as a result of the discriminatory and retaliatory treatment. The Tribunal determined that the impact of the discrimination on the complainant was “extreme.”
[181] I find the cases cited by Corrections to be more similar to the matter before me: Mould; Gaarden v. Fountain Tire and Ingram, 2008 BCHRT 402; Singh v. Dodd’s Furniture (No. 2), 2021 BCHRT 85. However, two out of the three decisions are quite dated. In the more recent Singh decision, the Tribunal ordered a $10,000 injury to dignity award. Singh involved a three-year employee who went on medical leave for several weeks due to a back injury and was prevented from returning to work due to his employer’s failure to accommodate. Instead of trying to accommodate the employee in his pre-injury assistant manager position, the employer gave him a take-it-or-leave-it offer of an assembly worker job with the same pay rate and hours. The employee viewed the offer as a demotion, and in any event could not perform assembly worker duties due to his disability.
[182] The $10,000 awarded in Singh appears to be at the low end of the range for injury to dignity awards in recent employment cases where the complainant lost their employment: see e.g., Cyncora v. Axton Inc., 2022 BCHRT 36 ($20,000); Bayongan v. Shimmura and another, 2023 BCHRT 27 ($25,000); Young Worker ($25,000); Benton ($30,000); Gbedze v. Hilton Vancouver Metrotown (No. 2), 2025 BCHRT 225 ($32,000). Considering the awards in these cases and those cited by the parties, I find it appropriate to award Ms. Thandi $18,000 under s. 37(2)(d)(iii) of the Code. In my view, her decade of service and her employer’s disregard for her circumstances support an amount above the low end of the range. On the other hand, because of her own hard work, Ms. Thandi landed on her feet after the discrimination. In addition, while I do not mean to minimize what Ms. Thandi experienced, the information and evidence before me regarding her vulnerability and the effect of the discrimination is not quite comparable to what was before the Tribunal in cases such as Cyncora, Bayongan, Benton, and Gbedze.
[183] I order Corrections to pay Ms. Thandi $18,000 as compensation for injury to dignity, feelings, and self-respect.
F. Pre- and post-judgement interest
[184] I find it appropriate to order Corrections to pay interest on the amounts ordered. Specifically, I order Corrections to pay pre-judgement interest on the wage loss and expenses awards, and post-judgement interest on all amounts awarded.
VI CONCLUSION
[185] The complaint is justified. Corrections discriminated against Ms. Thandi based on her disability, in contravention of s. 13 of the Code. As a result, I make the orders set out below.
VII ORDERS
[186] I make the following orders:
a. I order Corrections to cease the contravention of the Code and to refrain from committing the same or a similar contravention: Code, s. 37(2)(a).
b. Within 60 days of the date of this decision, Ms. Thandi must notify Corrections that she wishes to return to work forthwith. If she does so, then the following Reinstatement Orders are in effect:
i. I order Corrections to restore Ms. Thandi’s employee status and initiate discussions with her on a GRTW as a CO at NFPC as soon as possible and by no later than 120 days after the date of this decision, unless the parties mutually agree on a different timeline;
ii. I order that Ms. Thandi’s employee status be restored with all the rights and benefits she had before the discrimination;
iii. I order Corrections and Ms. Thandi to make good faith and reasonable efforts towards agreeing on a GRTW plan;
iv. Subject to Reinstatement Order #5, I order Corrections and Ms. Thandi to agree on a GRTW plan as soon as possible and by no later than 210 days after the date of this decision, unless the parties mutually agree on a different timeline;
v. If Ms. Thandi requests accommodation in order to return to work, or if the parties agree that she cannot return to work without accommodation, I order Corrections to follow the Accommodation Guide and otherwise accommodate Ms. Thandi to the point of undue hardship, and I order Ms. Thandi to do her part in the accommodation process [Reinstatement Order #5]: Code, 37(2)(d)(i).
c. I order Corrections to pay Ms. Thandi $19,712 to compensate her for gross wages lost: Code,37(2)(d)(ii).
d. I order Corrections to pay Ms. Thandi $3,417.30 plus applicable taxes, and $314.98, to compensate her for expenses incurred: Code, 37(2)(d)(ii).
e. I order Corrections to pay Ms. Thandi $18,000 to compensate her for injury to dignity, feelings, and self respect: Code, 37(2)(d)(iii).
f. I order Corrections to pay Ms. Thandi pre-judgement interest on the wage loss and expenses awards until paid in full, based on the rates set out in the Court Order Interest Act.
g. I order Corrections to pay Ms. Thandi post-judgement interest on all amounts awarded until paid in full, based on the rates set out in the Court Order Interest Act.
[187] The Tribunal will remain seized with respect to the Reinstatement Orders for one year following the date of this decision.
Jonathan Chapnick
Tribunal Member
[1] In this decision, I intentionally use somewhat vague, general language when referring to security system failures, due to the secure nature of the information about them.
[2] Figures are gross amounts, rounded to the nearest dollar, unless otherwise indicated.