Broe v. The Board of Education of School District No. 67 (Okanagan Skaha) (No.3), 2025 BCHRT 295
Date Issued: December 3, 2025
File: CS-001490
Indexed as: Broe v. The Board of Education of School District No. 67 (Okanagan Skaha) (No.3), 2025 BCHRT 295
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:
Michelle Broe
COMPLAINANT
AND:
The Board of Education of School District No. 67 (Okanagan Skaha)
RESPONDENT
REASONS FOR DECISION
Tribunal Member: Theressa Etmanski
On their own behalf: Michelle Broe
Counsel for the Respondent: Alyssa Paez and Amanda Scott (Articled Student)
Dates of Hearing: June 10 – 21 and December 11 – 13, 2024
Location of Hearing: Virtual
I INTRODUCTION
[1] Michelle Broe worked as a Certified Education Assistant [CEA] for the Board of Education of School District No. 67 (Okanagan Skaha) [District]. In 2018, she became involved in a conflict with two colleagues which led to bullying and harassment complaints [Harassment Complaints] against her. Ms. Broe alleges that the District’s handling of those complaints, including the investigation and the subsequent actions taken by the District based on its findings, were discriminatory towards her based on her real or perceived mental disability. She brings this complaint under s. 13 of the Human Rights Code.
[2] The District denies discriminating and says Ms. Broe has not satisfied her onus of establishing the elements of her case. It further argues in the alternative that it would have constituted undue hardship to have accommodated Ms. Broe regarding the events in the complaint.
[3] The hearing of this complaint spanned thirteen days. I have reviewed and considered all the evidence admitted at the hearing, which includes witness testimony and documents. After the hearing the parties provided closing submissions in writing. In this decision, I recount only the evidence and arguments required to explain my decision.
[4] The primary issue I need to resolve to decide this complaint is whether Ms. Broe has established that her mental disability, real or perceived, was a factor in the District’s conduct related to the Harassment Complaints, and the discipline which followed. I find that it was not.
[5] For the following reasons, the complaint is dismissed. I recognize that the events leading to this complaint had a significant impact on Ms. Broe, and this decision is not intended to minimize her experience. My decision reflects only that, based on my findings of fact, her experience does not amount to discrimination within the meaning of the Code.
II BACKGROUND
A. The parties
[6] The District first employed Ms. Broe as a CEA in 2003. In this position she was a member of the Canadian Union of Public Employees, Local 523 [Union].
[7] The role of a CEA is to support students with disabilities or diverse learning needs. CEAs work in classrooms or support rooms under the direction of classroom teachers and in consultation with special education teachers. Ms. Broe found this work meaningful, and she saw herself as an advocate for the students she was supporting.
[8] While Ms. Broe worked in various schools during her employment with the District, the events in question took place at a school I refer to as the Secondary School throughout this decision. I will also refer briefly to another school in which she worked as the Middle School. The names of these schools are not relevant to my decision, and I choose not to include them to help maintain the anonymity of any student involved in the events described.
[9] At the relevant time of the complaint, Shaune Gowe was the Special Education Department Head for the Secondary School during the 2017-2018 school year, and then the Acting Vice-Principal for the Secondary School during the 2018-2019 school year.
[10] For the District, Jason Corday was the Director of Instruction of Human Resources [HR], and Colleen Wiens was the HR Manager for Union staff.
[11] Dave Burgoyne, who investigated the Harassment Complaints against Ms. Broe, is a retired Director of Instruction for the District.
[12] Bonnie Hartskamp is an employee of the District and acted as Ms. Broe’s Union representative during the investigation.
[13] These five individuals, as well as Ms. Broe, provided evidence as witnesses in the hearing of this complaint.
B. The 2017-2018 school year
[14] Ms. Gowe worked with Ms. Broe at the Secondary School from 2010 to 2018. Ms. Gowe stated that Ms. Broe would often come to her with concerns, and she would try to provide clarification, support, and direction to Ms. Broe about her role. However, Ms. Gowe testified that around the fall of 2017, she became concerned that Ms. Broe was being overly critical of other staff and not staying within the scope of her role as a CEA. Ms. Gowe was also approached by several staff who reported concerns about Ms. Broe’s behaviour. Ms. Gowe began documenting these concerns in case Ms. Broe’s behaviour escalated further.
[15] From Ms. Broe’s perspective, it was her job to do what she thought was right for the students even if this was perceived as her challenging the decisions of other staff. One example from this period was discussed by several witnesses at the hearing. Ms. Broe testified extensively about a decision made without her input to temporarily remove a student with Autism she worked with from the Secondary School. Ms. Broe felt this was the wrong decision and she needed to take action to return the student to school. Ms. Broe first brought her concerns to a special education teacher, who subsequently approached Ms. Gowe with her own concerns that Ms. Broe was being overly critical of another staff member involved in the decision. Ms. Broe then went to the school Principal and subsequently, feeling that someone had lied to the Principal about the student, reached out to the Director of Support Services at the District, Susan Thomson. Ms. Thomson met with Ms. Broe to listen to her concerns but informed her that the decision had been made by a “darn good team” and she needed to move on. Ms. Gowe testified that she was concerned that Ms. Broe’s actions around this issue were causing stress to other staff and indicated that Ms. Broe was “crossing boundaries” and unable to let things go.
[16] In January 2018, Ms. Broe chose to take a temporary assignment at the Middle School. She did not disclose the reason for her transfer to any District personnel. However, she testified that it was related to the incident above, as well as several events that were building at the Secondary School which left her feeling unsafe and burned out. In documentary evidence from that time, she mentions that she felt “bullied” due to six unspecified instances at the Secondary School.
[17] Things did not improve for Ms. Broe at the Middle School. She testified about a number of issues she had in her interactions with students, teachers, and the school’s administration. In February 2018, Ms. Broe received a Letter of Expectation directing her, among other things, not to criticize the actions of teachers under whose direction she works. Ms. Broe testified that she did not agree with this letter and felt it was intended to demean her. That evening, Ms. Broe left a voicemail for Ms. Thomson saying that she was quitting and wanted to have a conversation about what had happened. She says she never received a response to this message.
[18] Shortly thereafter, Ms. Broe testified that she told her doctor that she was in crisis and asked that they prescribe her anti-depressants. On February 13, 2018, she commenced a medical leave from work. Around this time her Union reached out to offer her assistance.
[19] On June 9, 2018, Ms. Broe returned to work as a substitute CEA for the remaining weeks of the school year, including at the Secondary School. She stated that she did not tell anyone at work about her medical issues. She felt that she had been set up for success by HR for her return, and everything was going well.
C. Return to the Secondary School
[20] In September 2018, Ms. Broe returned to her full-time position as a CEA at the Secondary School. She states that she received a warm welcome back from Ms. Gowe and the school Principal.
[21] On September 24, 2018, Ms. Broe sent an email to Ms. Wiens, Ms. Gowe, Mr. Corday, and the school Principal, with the subject “Wellness”. She expressed her gratitude for their understanding of the events of the previous year and stated: “I am much better now!” The email goes on to describe how well things were going for her since returning to the Secondary School. Despite the clear wording of this email, Ms. Broe testified that this email was her non-confrontational way of asking for someone to come and check on her.
D. The bullying and harassment complaints
[22] On or around November 19 and 28, 2018, two of Ms. Broe’s CEA colleagues filed the Harassment Complaints against her. These colleagues did not participate in the hearing, and I do not find it necessary to identify them by name. I refer to them as Colleague A and Colleague B (or together, the Colleagues) throughout this decision.
[23] Ms. Broe testified extensively about the events leading up to the Harassment Complaints. The District also provided documentary evidence from the investigation addressing the perspective of the Colleagues.
[24] The conflict between Ms. Broe and the Colleagues largely stemmed from disputes over noon-hour supervision responsibilities. Ms. Broe was concerned that the Colleagues were each not where they were supposed to be and saw this as a serious safety issue for the students that she had a responsibility to address. For example, she was concerned that Colleague B was often inside during noon-hour supervision, when she was assigned to be outside with students. With Colleague A, a dispute arose over which area each CEA was expected to cover when another staff member was absent. She voiced her concerns about these issues directly with the Colleagues, as well as with Ms. Gowe, who was the Vice Principal at the time and responsible for supervising the CEAs.
[25] The conflict came to a head on November 8, 2018, when Ms. Broe and Colleague A had an encounter that ended with Ms. Broe yelling at Colleague A in front of Ms. Gowe and several other staff at the Secondary School. Ms. Gowe testified that Ms. Broe appeared “angry and unsettled,” and the encounter left Colleague A “rattled and speechless.” Ms. Broe agrees that she was “livid” and yelled at Colleague A, but says it was in response to Colleague A pointing a finger in her face and accusing her of lying.
[26] That same day, Colleague B approached Ms. Gowe to discuss what she described as “harassment” by Ms. Broe. By email that evening, Ms. Broe also complained to Ms. Gowe and the school Principal about Colleague A’s conduct that day, which she described as bullying. She requested a meeting with the Principal to discuss these issues.
[27] Ms. Broe met with the school Principal to discuss her concerns on or around November 14, 2018. She testified that this conversation lasted approximately two hours. Ms. Gowe testified that the Principal recommended that Ms. Broe be relocated for her noon-hour supervision duties to minimize her interaction with the Colleagues following this meeting.
[28] Ms. Gowe and the Principal subsequently brought their concerns about the situation with the three CEAs to Mr. Corday and Ms. Wiens in HR at the District office. On or around November 14, 2018, Mr. Corday recommended providing Ms. Broe and the Colleagues all bullying and harassment forms so they could file a complaint regarding their concerns with HR. Ms. Gowe followed this direction. The Colleagues chose to file the Harassment Complaints, but Ms. Broe did not. Ms. Broe testified that she did not want to take this action against the Colleagues and would have preferred to resolve the dispute through an informal dialogue.
[29] Although the circumstances of each complaint differed, in general, the Harassment Complaints alleged that Ms. Broe engaged in intimidating and confrontational behaviour by questioning or trying to direct the Colleagues on where they should be during noon-hour supervision, which was not her responsibility. They further alleged that Ms. Broe invaded their personal space, yelled, threatened to report them to administration, and otherwise behaved inappropriately towards them. Of note, Colleague A alleged that Ms. Broe engaged in this behaviour in front of vulnerable students, though Ms. Broe disputes this version of events.
E. The investigation and its findings
[30] On December 7, 2018, Mr. Corday met with Ms. Broe and a Union representative. He informed her of the Harassment Complaints and that there would be an investigation. He told Ms. Broe that she would be placed on paid leave pending the outcome of the investigation.
[31] After learning of the Harassment Complaints, Ms. Broe testified that she was in crisis. She contacted her doctor to increase her anti-depressant medication.
[32] The District engaged an external investigator, Mr. Burgoyne, to conduct the investigation. Mr. Burgoyne investigated the Harassment Complaints in accordance with School District Policy #318, which uses the following definition of bullying and harassment:
Includes any inappropriate conduct or comment by a person towards a worker that the person knew or reasonably ought to have known would cause that worker to be humiliated or intimidated. Examples of conduct or comments that might constitute bullying and harassment include verbal aggression or insults, calling someone derogatory names, harmful hazing or initiation practices, vandalizing personal belongings, and spreading malicious rumors.
[33] Ms. Broe was assigned a Union representative, Ms. Hartskamp, to support her throughout the investigation. Ms. Hartskamp testified that her role was to serve as a liaison between Ms. Broe and the District, and to help ensure the process was fair.
[34] Mr. Burgoyne interviewed the Colleagues, as well as various other school staff as part of the investigation. He also interviewed Ms. Broe.
[35] Ms. Broe’s interview with Mr. Burgoyne took place on December 17, 2018. Ms. Hartskamp was present, as well as Ms. Wiens who took notes. Ms. Broe says she was shocked by the allegations against her, and said the interview felt like a “bad dream”. She felt that the Colleagues were colluding against her, and someone was setting her up to be fired. Ms. Broe testified that Ms. Hartskamp ensured that she got breaks during the interview, but she felt like it went on much longer than she expected it to. Both Ms. Broe and Ms. Hartskamp testified that Mr. Burgoyne was respectful to Ms. Broe throughout the interview.
[36] Ms. Wiens testified that she had some concerns about Ms. Broe’s behaviour during the interview. She states that some of Ms. Broe’s statements were contradictory, and she had trouble “staying on task.”
[37] At one point during the interview, Ms. Broe began discussing an unrelated legal matter she had been involved in, which did not cast her in a favourable light, with the intention of demonstrating her propensity for honesty. Mr. Burgoyne called Ms. Hartskamp outside and told her that he should not be hearing that information. Ms. Hartskamp’s impression was that he was trying to help Ms. Broe in that moment; however, Ms. Broe was not happy that she could not share that information. Ms. Broe also testified that at one point she stood up and yelled “that’s a lie” about a statement said to have been made by Ms. Gowe. At the end of the interview, she stated that she began sobbing with her head between her knees. Ms. Hartskamp’s impression was that Ms. Broe was having a strong emotional response to feeling that her character was being attacked.
[38] Following the interview on December 17, against her Union’s advice, Ms. Broe sent several emails to Mr. Burgoyne, Ms. Hartskamp, and Ms. Wiens. Mr. Burgoyne testified that he did not receive the emails, as they were not sent to his current email address. Ms. Wiens confirmed that she had received them. Among other things, the emails clarified and expanded on information Ms. Broe had provided in her interview.
[39] Upon conclusion of the investigation, Mr. Burgoyne delivered his findings to Mr. Corday and Ms. Wiens. He found that some, but not all, of the allegations by both Colleagues were substantiated and met the District’s definition of bullying or harassment.
[40] One of Mr. Burgoyne’s recommendations was that Ms. Broe be transferred to a different school as her working relationships at the Secondary School were damaged beyond repair. This was based on her statements during the investigation that the Colleagues had colluded against her, and that Ms. Gowe was dishonest about the matters that were being investigated. The Colleagues had also expressed concerns about their safety with respect to Ms. Broe.
[41] Mr. Burgoyne testified that he also conveyed to the District that he was concerned about Ms. Broe’s fitness to work as a CEA. In particular, he was troubled by the allegation that Ms. Broe had yelled at Colleague A in front of three vulnerable students. Ms. Wiens stated that she had similar concerns about Ms. Broe’s fitness to work based on the investigation findings and Ms. Broe’s behaviour during her investigation interview.
[42] The District accepted Mr. Burgoyne’s findings, and Mr. Corday and Ms. Wiens concluded that Ms. Broe should be issued a Letter of Discipline and transferred to a new school. Mr. Corday testified that this was the lowest level of discipline they could have imposed on her in the circumstances. They also decided that Ms. Broe should provide medical documentation confirming her fitness to work as a CEA before she could return to any school. She would continue on paid administrative leave until she provided that information.
[43] On January 8, 2019, Mr. Corday and Ms. Wiens met with Ms. Broe and Ms. Hartskamp to deliver the findings of the investigation. Mr. Corday provided Ms. Broe with two letters during this meeting: a Letter of Direction which instructed her to comply with the District’s bullying and harassment policy, and a Letter of Discipline which stated that she would be transferred to a different school. He also informed her of the requirement that she provide medical information before she could return to work. The parties agree that Ms. Broe did not take this information well, and the meeting ended when Ms. Broe threatened to take Mr. Corday and Ms. Wiens to court.
F. Events following the investigation
[44] Ms. Broe was deeply offended by the requirement that she provide medical information to return to work and refused to have her doctor complete the medical questionnaire provided by the District. Instead, she completed the medical questionnaire herself indicating that she was able to do her job and returned it to the District. The District did not accept her response as sufficient to demonstrate her fitness to work.
[45] Subsequently, Ms. Broe provided the District a letter from her doctor stating that she could not return to work for medical reasons. She has not returned to work for the District since 2018.
G. The application to dismiss
[46] Ms. Broe filed her human rights complaint on October 24, 2019. Her complaint alleged that the District, and Mr. Corday individually, discriminated against her in their response to the Harassment Complaints, including the investigation and Letter of Discipline. It further alleged that the District discriminated when it refused to allow Ms. Broe to return to work unless she provided evidence of her fitness to do so.
[47] On October 13, 2023, the Tribunal issued a preliminary decision on an application filed by the District to dismiss the complaint without a hearing: Broe v. Board of Education of School District No. 67 (Okanagan Skaha) and another, 2023 BCHRT 157. That decision dismissed Ms. Broe’s individual allegations against Mr. Corday, as well as the allegation that the District discriminated against her by requiring that she provide medical information before she could return to work.
H. The hearing
[48] The hearing of this complaint was originally scheduled for ten days in June 2024. An additional three days were subsequently scheduled in December 2024.
[49] Ms. Broe worked hard to represent herself in this complaint. I gave her significant latitude with her testimony, which took place over seven days. Similarly, she was allowed to extensively cross-examine the District’s witnesses, including a full day with Mr. Corday and more than a day with Mr. Burgoyne.
[50] This was a difficult hearing for Ms. Broe and some of the witnesses involved. One witness expressed that it felt like Ms. Broe was using the Tribunal process to get “revenge” for the events in the complaint. It was clear that revisiting these events was stressful for Ms. Broe, and her emotions were often heightened. Although she had the opportunity to ask questions, and receive answers, from individuals involved in the events leading to this complaint, she expressed that some of the evidence was hurtful and caused her to question her sense of self.
[51] We took additional breaks as necessary. Ms. Broe was also offered the option of having a support person sit with her throughout the hearing, however the person she identified was not available. Having expressed that seeing Mr. Corday in the virtual hearing room was a trigger for Ms. Broe, he agreed to attend the hearing with his camera turned off, with the exception of when he was providing his testimony.
[52] Ms. Broe was also given significant latitude with respect to her documentary evidence. Before the hearing, I held a case conference with the parties where we discussed, among other things, how to admit documents at the hearing. I explained that any documents previously submitted to the Tribunal in preliminary applications would not form part of the hearing record, and if a party wanted to introduce a document at the hearing, they had to provide it as part of their book of documents. I confirmed these instructions in writing. The parties agreed to prepare a joint book of documents, which they submitted to the Tribunal a few days before the hearing began.
[53] On the first day of the hearing, however, Ms. Broe sought to rely on documents that were not included in the joint book of documents and which she had not provided to the Tribunal for the purpose of the hearing. I reminded Ms. Broe of the instructions I had provided and directed her to review all her documents after we had adjourned for the day, submit them to the Tribunal and the District, and we would address any procedural fairness issues the following day. Ms. Broe agreed to follow these instructions.
[54] The next morning however, she had not provided the documents and expressed that she had not slept and was confused about the process. We revisited the document issue the morning of the third day of hearing, as Ms. Broe again wished to rely on the documents she had not provided according to my instructions. The District’s legal counsel offered a solution: she would send the Tribunal a file containing all the documents Ms. Broe had disclosed to the District in advance of the hearing and would not object to these documents being admitted on the basis of inadequate notice. This allowed the Tribunal to access Ms. Broe’s documents, one by one, as Ms. Broe sought to introduce them. While there were still delays caused by this approach, the District’s cooperation in problem-solving allowed Ms. Broe to present the evidence that she had previously prepared in a manner that made sense to her. I thank legal counsel for her efforts in this regard.
III DECISION
[55] To prove her case, Ms. Broe must establish, on a balance of probabilities, that she had a disability at the material time, she experienced an adverse impact in employment, and that her disability was factor in that adverse impact: Moore v. BC (Education),2012 SCC 61 at para. 33. If Ms. Broe does not prove the three elements of her case, then there is no breach of the Code.
[56] If Ms. Broe were successful in establishing all three elements, then the burden would shift to the District to justify its conduct based on a bona fide occupational requirement. If the District proves this defence, then there is no discrimination.
[57] For the reasons that follow, I find that Ms. Broe has not met her burden of proving the elements of her case.
A. Scope of decision
[58] As a preliminary matter, I acknowledge that Ms. Broe has raised new facts and allegations in her closing submissions which go beyond the scope of the complaint as accepted for filing by the Tribunal. For example, Ms. Broe raises issues with her attempts in and after February 2019 to file bullying and harassment complaints, and a direction from Mr. Corday in or around May 2019 that she was not permitted to attend the Secondary School. The District objects to the Tribunal considering this information. While I appreciate that Ms. Broe may see these events as connected to the allegations in her complaint, it is impermissible for me to consider new allegations at this stage of proceedings, and I have not done so.
B. Did Ms. Broe have a mental disability at the time of the complaint?
[59] The District acknowledges that Ms. Broe has a mental disability and was on anti-depressants during the material time, November 2018 to January 2019.
[60] I accept on the evidence that Ms. Broe has been diagnosed with depression. Ms. Broe testified that in February 2018, following her experience at the Middle School, she was in crisis, began taking anti-depressants, and went on a four-month medical leave from work. By June 2018, her evidence was that her depression was successfully managed with medication. However, after learning of the Harassment Complaints on December 7, 2018, Ms. Broe testified that she again experienced a medical crisis and asked her doctor to increase her anti-depressants the next day. I acknowledge that the exact nature or severity of Ms. Broe’s disability is not clear between June 2018 and December 2018, however, I also accept that some conditions may fluctuate over time. For the purposes of this analysis, given that this element of her complaint is undisputed, I accept that Ms. Broe’s depression was sufficiently sever and permanent to warrant protection as a mental disability within the meaning of the Code.
[61] Ms. Broe also argues that the District perceived her to have a mental disability. In particular, she points to documentary evidence provided by the District where a teacher at the Secondary School referenced concerns about her “mental health” to Ms. Gowe in 2017. She also points to the District’s requirement that she provide medical information demonstrating her fitness to work following the investigation into the Harassment Complaints, based on concerns raised by Mr. Burgoyne and Ms. Wiens. Although the latter has been previously dismissed as an allegation in this complaint, I accept that it is a relevant consideration for whether the District perceived Ms. Broe to have a disability at the material time. On the evidence, I find that several people within the District considered Ms. Broe’s behaviour at various points to be unreasonable or disproportionate, and they speculated that it could be related to a mental health condition. This could amount to a perceived disability. It is well established that the Code’s protection extends to perceived disabilities: Caster v. Walter Evans (No. 2), 2012 BCHRT 163 at 184; Gehman v. Seyffert, 2020 BCHRT 180 at para. 88.
C. Did Ms. Broe experience an adverse impact in her employment?
[62] The District acknowledges that Ms. Broe experienced an adverse impact in employment when she was issued the Letter of Discipline. This is appropriate. Although the District says this was the lowest form of discipline, the letter formed part of Ms. Broe’s permanent employment record, and it directed that she be removed from her regular place of work. This amounts to an adverse impact.
[63] However, the District disputes that Ms. Broe experienced an adverse impact when the Colleagues were given the option of filing the Harassment Complaints, the District investigated those complaints, or when it accepted the findings substantiating some of the allegations against her. Rather, the District says these actions amounted to reasonable and required management of the workforce, not adverse treatment. The District relies on Moudakis v. Insurance Corp of British Columbia and others, 2024 BCHRT 266 at para. 67, where the Tribunal held that it is not adverse treatment for a manager or supervisor to performance manage people under their supervision, even if those conversations are sometimes difficult and unwelcome from the employee’s perspective. Similarly, the District says that although the Harassment Complaints, investigation, and findings of the investigation were unpleasant and not done in a way Ms. Broe liked, these actions were unwelcome management of her employment and not adverse treatment under the Code.
[64] Ms. Broe says this conduct amounts to an adverse impact because there was a less harmful approach to addressing the issues between her and the Colleagues available to the District. Specifically, she says that Ms. Gowe, who was responsible for supervising the CEAs, could have ensured that these issues did not escalate and facilitated clearer communication amongst staff. Further, Ms. Broe says that the District should have facilitated an informal dialogue between all parties to resolve the issues they were having, rather than encouraging the Colleagues to file complaints against her. Ms. Broe argues that Mr. Corday, and others working at his behest, essentially orchestrated the complaints to be filed against her, and for the investigation to substantiate them, and this is an example of her being bullied by the District.
[65] While I determine below that some of Ms. Broe’s allegations amount to speculation unsupported by the evidence, I find it is more efficient to address these allegations in the context of the nexus analysis. I note that the Tribunal has previously held that workplace investigations could be an adverse impact for an employee: Jamal v. TransLink Security Management and another (No. 2), 2020 BCHRT 146 at para. 105; Vincent-Posener v. Ministry of Social Development and Poverty Reduction, 2022 BCHRT 111 at para. 29. What is determinative most often comes down to whether the employee’s protected characteristic was a factor in the conduct of the investigation. Therefore, for the purpose of this analysis, I accept, without deciding, that Ms. Broe experienced an adverse impact in her employment when she was subjected to the Harassment Complaints, the associated investigation, and the discipline that followed.
[66] As discussed above, the question of whether it was appropriate for the District to require Ms. Broe to provide medical information with respect to her fitness to work was dismissed previously and so it is not within the scope of this complaint.
D. Was Ms. Broe’s disability a factor in the adverse impact?
[67] Ms. Broe does not argue that her depression was a factor in the Harassment Complaints, the investigation and its findings, or the Letter of Discipline. Rather, her position is that these events exacerbated her depression.
[68] The Tribunal has found that even if a complainant establishes that a respondent’s conduct has caused a disability, or exacerbated an existing one, this does not establish discrimination contrary to the Code: Jardine v. Interior Health Authority (No. 2), 2022 BCHRT 7 at para. 86. To establish discrimination, Ms. Broe must establish that she experienced an adverse impact in which her disabilities were a factor. In other words, that the District treated her adversely, at lease in part, because of her disabilities: Ryhal v. Save-On-Foods and others, 2019 BCHRT 202 at paras. 4, 28-29; Rutherford v. BC Pension Corporation, 2024 BCHRT 278 at para. 50. The distinction between assessing whether the District exacerbated Ms. Broe’s disability by the Harassment Complaints process and assessing whether her disability was a factor in how the District managed and conducted the Harassment Complaints process, is subtle but important: Jardine at para. 87. The former is not a breach of the Code, while if the latter is proven, it would trigger the District’s duty to accommodate.
[69] Considering the evidence as a whole, I find that the evidence does not support a finding, on a balance of probabilities, that Ms. Broe’s mental disability was a factor in the District’s conduct related to the Harassment Complaints, the investigation and its findings, or the discipline imposed because of the findings.
[70] Ms. Broe testified that her disability did not affect her ability to perform her duties as a CEA, and she did not require any accommodation related to her disability at work. Further, she has maintained that her conduct with respect to the Colleagues was reasonable and unconnected to her disability, as she was motivated by concern about student safety. She says the Colleagues were colluding and lying about the allegations in the Harassment Complaints, and Mr. Corday and Ms. Gowe were scheming to get her fired and they persuaded the Colleagues to file them. She has been consistent about this position throughout the Tribunal’s process, with one exception. On her third day of direct testimony, Ms. Broe stated for the first time that yelling at Colleague A on November 8 may have been connected to her disability because she is normally in control of her emotions at work, and this was a “knee jerk” reaction. However, she stated that she could not say for sure if her disability played a factor in this conduct or not.
[71] This statement is not sufficient to establish a breach of the Code. Ms. Broe has not provided any medical evidence to support that her depression would cause her to yell at a colleague who she says pointed a finger in her face and accused her of lying. Therefore, I find that Ms. Broe has not established that her disability was a factor in her conduct leading to the Harassment Complaints.
[72] Similarly, there is no direct evidence, or evidence on which to base a reasonable inference, that the decision to provide Ms. Broe and the Colleagues the opportunity to file bullying and harassment complaints was connected Ms. Broe’s disability, either real or perceived. I accept the District’s evidence that all three employees had expressed concerns about the conduct of another employee, and the District had a responsibility to ensure the safety of each of them. Ms. Broe chose not to avail herself of that option at the time. That Ms. Broe would have preferred to resolve the issue in a different manner does not alter this conclusion. She has not alleged that her preference was in any way connected to her disability. I accept the District’s evidence that it offered voluntary mediation to the Colleagues after they had filed the complaints, but both declined. It was reasonable and not discriminatory for the District in those circumstances not to require the Colleagues to engage in an informal dialogue with Ms. Broe.
[73] Further, I do not find Ms. Broe’s position that the Harassment Complaints were part of a scheme between Ms. Gowe and Mr. Corday to have her terminated to be supported by the evidence, or even if proven, to be connected to her disability. Ms. Broe supports her argument by pointing to differences in how Ms. Gowe engaged with her regarding the filing of the complaint, compared to how she perceived Ms. Gowe to have engaged with the Colleagues. Ms. Broe argues that Ms. Gowe asked the Colleagues to file the Harassment Complaints against her and assisted them to do so. In contrast, she says Ms. Gowe did not respond to her request for an informal discussion about the conflict. She further argues that she was not given the complaint forms for two weeks after Ms. Gowe gave them to the Colleagues. She says Ms. Gowe “wanted her gone” because of previous incidents she had with Ms. Gowe’s colleagues and because Ms. Broe had exposed that Ms. Gowe was not properly supervising the CEAs during the noon-hour. She further says that Ms. Gowe was acting on the direction of Mr. Corday, who also wanted her terminated, to ensure her own professional advancement.
[74] The evidence does not support that Ms. Gowe and Mr. Corday were scheming to have Ms. Broe’s employment terminated. While there may have been differences in the exact manner that Ms. Gowe engaged with Ms. Broe and the Colleagues regarding their respective concerns, I am satisfied that this is reflective of the nature of the allegations each employee raised at the time. Up until November 8, 2018, Ms. Broe’s concerns were largely about the Colleagues not doing their jobs properly. In contrast, on that day Ms. Gowe herself witnessed Ms. Broe yelling at Colleague A and was required to address the immediate impact of that incident. I accept as credible Ms. Gowe’s evidence that she encouraged Colleague A to write down everything she could remember about the encounter but did not assist her to fill out her complaint. Colleague A appears to have followed Ms. Gowe’s advice and included her description of events from that day as an attachment to her Harassment Complaint. However, Ms. Gowe’s conduct in this respect does not support that there was any scheme against Ms. Broe.
[75] On the same day, Colleague B brought her concerns about Ms. Broe to Ms. Gowe, and Ms. Broe sent an email complaining about Colleague A pointing a finger in her face. Although Ms. Broe’s email was sent to both Ms. Gowe and the school Principal, it specifically requested an informal discussion with the Principal about her concerns. The Principal met with Ms. Broe and allowed her to thoroughly share her version of events. In these circumstances, I find it was reasonable for Ms. Gowe not to respond to Ms. Broe, as the school Principal granted her request for a dialogue.
[76] Subsequently, Ms. Gowe and the school Principal brought the concerns of all three employees to HR. From there, I accept that Ms. Gowe followed the direction of Mr. Corday to provide all three employees the opportunity to file complaints, as they had each refenced bullying and/or harassment in their communications. There is no evidence before me that this direction was connected to Ms. Broe’s disability, which Mr. Corday was not aware of at the time. Ms. Gowe’s evidence was that all three employees were offered the form “around the same time”, and email evidence supports that this occurred between November 14 and November 19, 2018. Once the Colleagues decided to file the complaints, the District’s bullying and harassment policy was engaged and HR took over the process of initiating an investigation. This approach was reasonable in the circumstances and does not support Ms. Broe’s theory about the motives of the District.
[77] Even if I were to accept Ms. Broe’s speculation about the motivations of Ms. Gowe or Mr. Corday, there still would not be sufficient evidence before me to find a nexus between their conduct and Ms. Broe’s disability, either real or perceived. Ms. Broe’s submissions about Ms. Gowe and Mr. Corday’s motivations for facilitating the Colleagues to file the Harassment Complaints do not explain how her disability was a factor in any differential treatment she may have experienced. The fact that she had a disability when these incidents occurred is not sufficient, on its own, to establish a nexus.
[78] Likewise, while the Tribunal has found that conduct during workplace investigations may be discriminatory even if the underlying conduct subject to the investigation is not: Employee v. The University and another (No. 2), 2020 BCHRT 12 at para. 272, I do not find that there is any connection between how the investigation into the Harassment Complaints was conducted and Ms. Broe’s mental disability.
[79] Ms. Broe’s position is that the District discriminated in their investigation because they already perceived her to have a disability, but nobody asked her about if she required any accommodation to participate. She states that Mr. Burgoyne did not offer her “Kleenex when [she] cried, coffee, water or a break,” although she conceded that Ms. Hartskamp made sure that she got breaks during the interview when she needed them.
[80] However, Ms. Broe has not argued or proven that she did in fact require a disability-related accommodation to participate in the investigation. While the medical evidence she has provided confirms that she had a disability, it does not indicate that she required any accommodation at that time. Further, she testified that even if someone had asked her if there was something she wanted to tell them, she would not have said anything about her disability because she was not required to disclose it. These circumstances do not establish that Ms. Broe required but was denied any accommodation related to her disability to participate in the investigation process.
[81] Ms. Broe has also not established that her other concerns about the fairness of the investigation have any connection to her mental disability, either real or perceived. For example, Ms. Broe argues that the investigation and its findings were flawed for various reasons, including:
a. She thinks that Colleague B was not credible, but her evidence was still accepted by Mr. Burgoyne.
b. The investigation was not thorough because Mr. Burgoyne did not review all the documents and materials, or interview all the witnesses, that Ms. Broe thinks he should have.
c. Mr. Burgoyne did not follow up with any witnesses for clarification after their interviews.
d. Mr. Burgoyne was not an external investigator because he had previously worked for the District, which Ms. Broe says demonstrates an automatic bias.
e. Mr. Burgoyne may have already been prejudiced against her, as she recalls an incident from years earlier when Mr. Burgoyne worked for the District, and she perceived that he did not appreciate something she said at a meeting he was chairing.
f. She does not know if Mr. Burgoyne’s investigation services were legitimate because he did not have a business license.
g. The interview notes taken during the investigation did not have dates on them, which she says also demonstrates that it was not a professional or thorough investigation.
h. Mr. Burgoyne did not offer her his contact information after her interview. And,
i. Mr. Corday did not make sure Mr. Burgoyne received the follow-up emails she sent after her interview.
[82] Ms. Broe further speculates that the interview notes from the investigation presented by the District were deceitfully altered, the questions written down are not what was asked of the witnesses, and it was actually Mr. Corday who conducted the investigation instead of Mr. Burgoyne as part of his scheme to have her terminated. There is no basis in the evidence to support Ms. Broe’s belief.
[83] I do not accept Ms. Broe’s speculations about her perceived flaws with the investigation as fact. Rather, I accept the evidence of the District’s witnesses that Mr. Burgoyne conducted the investigation, that he was qualified to do so, and that he was sufficiently removed from the conflict between Ms. Broe and the Colleagues that he could assess the allegations objectively.
[84] Further, even if I accepted her position, Ms. Broe has not explained how any of her concerns about how the investigation was conducted are connected to her mental disability. Rather, I agree with the District that Ms. Broe is essentially asking the Tribunal to reassess the investigation in the hopes it comes to a different conclusion about the Harassment Complaints. That is not the Tribunal’s role in the resolution of this complaint.
[85] I reach a similar conclusion with respect to the Letter of Discipline, which was issued as a result of the outcome of the Harassment Complaints process.
[86] Ms. Broe argues that the Letter of Discipline was discriminatory because the District perceived her to have a mental disability prior to issuing it. She says these facts invoked the District’s “duty to inquire”. She argues that there were “red flags” indicating that she was not doing well given all the issues at work, and someone should have checked on her. In particular, she points to factors including: a concern about her “mental health” expressed to Ms. Gowe by a special education teacher in 2017; her decision to transfer to the Middle School in 2018; her subsequent medical leave; her email with the subject “Wellness” upon her return to the Secondary School in 2018; her disclosure to Mr. Burgoyne during the investigation that she was on anti-depressant medication; and, Ms. Wiens’s stated concerns about her behaviour during the investigation interview.
[87] Despite these factors, she says the District did not engage with her about her health and wellbeing prior to informing her of the outcome of the investigation and issuing her the Letter of Discipline.
[88] The District acknowledges that imposing the Letter of Discipline at the same time it requested the medical information was a “procedural misstep,” and it would have been preferable to confirm the medical information prior to issuing the Letter of Discipline. However, because Ms. Broe has not met her onus of establishing the elements of her case of discrimination, the District says any procedural error it made is irrelevant. This is because there is no free-standing procedural duty required under the Code: University of British Columbia v. Kelly, 2016 BCCA 271 at para. 42.
[89] I agree that it would have been preferable for the District to address its concerns about Ms. Broe’s health with her before imposing any disciplinary measures. I also agree the “red flags” outlined by Ms. Broe could, in some circumstances, be sufficient to invoke an employer’s duty to inquire. If there is a reason for an employer to be aware of a possible relationship between a disability and work performance problems, an employer who does not make further inquiries before taking action that adversely affects the employee runs the risk of a finding of discrimination, if there is indeed a relationship between the performance problems and the disability: Lewis v. Hour of Power Canada and another, 2018 BCHRT 251 at para. 88. The duty to inquire is an aspect of the respondent’s obligations in cases where it is not clear that accommodation is required, but there is reason to believe it may be.
[90] The duty to accommodate, which includes the duty to inquire, only arises once an employee proves that their disability is a factor in an adverse impact they experienced regarding their employment: Morris v Ministry of the BC Public Service Agency, 2018 BCHRT 222 at para. 118; Buttar v College of Occupational Therapists of BC, 2019 BCHRT 285 at para. 35; Mynett v Associated Engineering (BC) Ltd, 2024 BCHRT 123 at para. 69. The duty to inquire is not a stand-alone requirement. It does not require employers to ask employees about their physical or mental health any time they have reason to believe an employee is unwell. Such a requirement would represent an intrusive overreach that goes beyond the basic bargain of an employment contract: an employee performs work in exchange for remuneration: Hydro-Québec v. Syndicat des employé-e-s de techniques professionnelles et de bureau d’Hydro-Québec, section locale 2000 (SCFP-FTQ), 2008 SCC 43at para. 14. Absent a legitimate work-related reason, an employer’s request for medical information would be overly intrusive and may itself constitute discrimination: Gichuru v. The Law Society of British Columbia (No. 4), 2009 BCHRT 360 at paras. 560 and 565.
[91] This means that to establish that the Letter of Discipline was discriminatory, Ms. Broe must still prove a connection between her mental disability and the conduct alleged in the Harassment Complaints. Only then would the burden shift to the District to establish that they met their duty to accommodate Ms. Broe, including any duty to inquire.
[92] Ms. Broe has not established that the conduct for which she was disciplined was connected to her mental disability. She also does not argue that the District failed its duty to accommodate her. She has been clear that she did not require accommodation and was offended by the District’s perception that her disability might have an impact on her ability to do her job. As discussed above, her medical evidence does not support a finding that she required disability-related accommodation at the material time of the complaint. In these circumstances, it was not a breach of the Code for the District not to inquire about Ms. Broe’s health prior to disciplining her for conduct unrelated to her disability.
[93] For these reasons, Ms. Broe has not established a nexus between the adverse impacts she experienced and her mental disability. Her complaint must be dismissed.
IV CONCLUSION
[94] Ms. Broe has not established the elements of her case of discrimination. Accordingly, her complaint against the District is not successful.
[95] Although this is decision does not reflect the result she was hoping for, I hope Ms. Broe’s participation in this process brings her some closure to this difficult experience.
[96] I apologize to the parties for the delay in issuing this decision.
Theressa Etmanski
Tribunal Member