Kullar v. Allied Shipbuilders Ltd. and another, 2025 BCHRT 296
Date Issued: December 2, 2025
File: CS-007432
Indexed as: Kullar v. Allied Shipbuilders Ltd. and another, 2025 BCHRT 296
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:
Parminder Singh Kullar
COMPLAINANT
AND:
Allied Shipbuilders Ltd. and Marine Workers & Boilermakers Industrial Union, Local No. 1
RESPONDENTS
REASONS FOR DECISION
APPLICATION TO DISMISS A COMPLAINT
Section 27(1)(b) and (c)
Tribunal Member: Jonathan Chapnick
For the Complainant: No submissions
Counsel for the Allied Shipbuilders: Taryn Mackie and Sarah Hanson
Counsel for MWBIU, Local No. 1: Daniel McBain and Afifa Hashimi
I INTRODUCTION
[1] The complainant, Parminder Singh Kullar, alleges that Allied Shipbuilders Ltd. [Allied] and Marine Workers & Boilermakers Industrial Union, Local No. 1 [Union] discriminated against him in the area of employment based on the ground of physical disability, in contravention of s. 13 of the Human Rights Code.
[2] With the Tribunal’s permission, Allied and the Union [collectively, Respondents] each applied to dismiss Mr. Kullar’s complaint under s. 27(1) of the Code. Despite written directions from the Tribunal to respond to the dismissal applications by January 6, 2025, Mr. Kullar did not file any response.
[3] On January 20, 2025, the Tribunal notified Mr. Kullar in writing that it would proceed to decide the dismissal applications on the information before it. The Tribunal told Mr. Kullar that if he wished to submit a late response, he was required to apply for permission to do so by filing a Form 7.1 (General Application form), in which he was required to explain the reasons for the delay. Mr. Kullar did not do so.
[4] For the reasons that follow, Allied’s dismissal application is granted in part, and the Union’s dismissal application is granted in full. The part of Mr. Kullar’s complaint that relates to Allied not rehiring him in early 2021 will proceed to a hearing. The other parts of the complaint against Allied are dismissed under s. 27(1)(c) of the Code. The entirety of the complaint against the Union is dismissed under s. 27(1)(b).
[5] At the end of this decision, I provide notice to Mr. Kullar to diligently pursue his complaint.
II Background
[6] The following information is drawn from the materials before me and is set out here as background. It is not meant to be exhaustive. I have considered all of the materials filed, but only refer to what is necessary to explain what I decided. I make no findings of fact related to the merits of the complaint.
[7] Mr. Kullar works as a labourer in the shipbuilding industry. The Union runs a hiring hall, through which it dispatches its members in seniority order (i.e., most seniority first) to shipbuilding industry employers that request employees. One such employer is Allied, which operates a shipyard and is party to a collective agreement with the Union. Mr. Kullar has been a Union member since 2006.
[8] The Union dispatched Mr. Kullar to Allied and he began working for the company in February 2017. In October 2017, Mr. Kullar was injured on the job. He went off work and received benefits from WorkSafeBC [WorkSafe]. Mr. Kullar returned to work at Allied in November 2017, but went on WorkSafe leave again in February 2018. In July 2018, he began a graduated return to work, performing modified duties and working reduced hours. Correspondence from WorkSafe states that Mr. Kullar “returned to [his] normal work duties and hours as of August 13, 2018.”
[9] In September 2018, Allied laid off Mr. Kullar and two other labourers, stating that there was “insufficient work available to sustain the present employee group.” In this decision, I will refer to the other labourers as “SB” and “JG.” The evidence indicates that Mr. Kullar, SB, and JG had similar amounts of seniority at Allied, each with seniority dates in 2017, and with Mr. Kullar having the most seniority of the three.
[10] In a letter to Mr. Kullar dated October 16, 2018, a WorkSafe case manager confirmed that they had “accepted a reopening” of Mr. Kullar’s WorkSafe claim after reviewing it with a medical advisor who determined that Mr. Kullar’s injuries continued to be temporarily disabling. Because Mr. Kullar was on layoff and “had no suitable work to perform,” he was accepted back onto WorkSafe benefits.
[11] On November 20, 2020, Mr. Kullar provided Allied with a note from his doctor, indicating that he could do a graduated return to work of “4 hours per day for three days … and then follow up” [GRTW Plan]. Allied says it did not need additional labourers at that time and so Mr. Kullar remained on layoff.
[12] In a letter to Allied dated January 26, 2021, a vocational rehab consultant at WorkSafe provided information regarding Mr. Kullar’s limitations and restrictions and asked if Mr. Kullar could be accommodated “in a suitable modified or alternative position on a permanent basis” [L&R Letter]. The Union says that subsequent to receiving this letter, Allied told the Union that it “was not prepared to take Mr. Kullar back to work on a graduated return to work, and that the Union should not dispatch Mr. Kullar for work for now.”
[13] The Union dispatched five labourers to Allied on February 8, 2021, including SB and JG. It did not dispatch Mr. Kullar. The Union dispatched a total of three additional labourers to Allied on February 11 and 12, 2021, and a total of three additional labourers to Allied on March 11 and 12, 2021. It did not dispatch Mr. Kullar.
[14] A WorkSafe report dated March 4, 2021 indicates that Mr. Kullar participated in a functional capacity evaluation [FCE] in late February 2021, which found that he could meet the full physical work demands of a shipyards labourer. In a letter to Mr. Kullar dated March 31, 2021, a WorkSafe case manager confirmed that based on the FCE and other medical evidence, it was determined that he no longer had limitations and restrictions.
[15] In a letter to Allied dated April 1, 2021, WorkSafe’s rehab consultant advised that Mr. Kullar’s limitations and restrictions had been removed. Allied says it did not need additional labourers at that time and so Mr. Kullar remained on layoff.
[16] Mr. Kullar retained his seniority with Allied from April 2021 to April 2023. Allied says it did not need additional labourers during that period and so Mr. Kullar remained on layoff.
III Decision
[17] Mr. Kullar filed a human rights complaint on October 14, 2021. The Respondents say the complaint should be dismissed without a hearing. Allied applies to dismiss the complaint under s. 27(1)(c) of the Code. The Union applies under ss. 27(1)(b) and (c). I will deal with Allied’s application first.
A. Is there no reasonable prospect that the complaint against Allied will succeed?
[18] Under s. 27(1)(c), the Tribunal can dismiss complaints that have no reasonable prospect of success and therefore do not warrant the time and expense of a hearing. This is part of the Tribunal’s gatekeeping function. The Tribunal’s task under s. 27(1)(c) is to look at the evidence provided to decide whether “there is no reasonable prospect that findings of fact that would support the complaint could be made on a balance of probabilities after a full hearing of the evidence”: Berezoutskaia v. British Columbia (Human Rights Tribunal), 2006 BCCA 95 at para. 22, leave to appeal ref’d [2006] SCCA No. 171.
[19] To make his case at a hearing, Mr. Kullar would need to prove that he experienced a disability-related adverse impact in his employment: Moore v. British Columbia (Education), 2012 SCC 61 at para. 33. Allied says he has no reasonable prospect of doing so. Further, Allied argues that it is reasonably certain to establish a defence even if Mr. Kullar makes his case.
[20] In the complaint, Mr. Kullar alleges that Allied failed to accommodate him. He says Allied discriminated against him by laying him off in 2018 and refusing to rehire him in late 2020 and early 2021. On the whole of the evidence before me, I am satisfied that the allegations regarding 2018 and 2020 have no reasonable prospect of success and should be dismissed. However, I am not persuaded to dismiss Mr. Kullar’s allegation of discrimination in early 2021. In the next two sections, I will explain my conclusions in reference to Mr. Kullar’s allegations.
1. No reasonable prospect of proving 2018 layoff was discrimination
[21] In the complaint, Mr. Kullar describes his layoff in 2018 as amounting to Allied refusing to employ him because of his injuries. He says Allied was “aware that [he] was gradually returning to work” at that time. Allied does not dispute that the layoff was an adverse impact in Mr. Kullar’s employment. However, it argues that Mr. Kullar cannot make his case because, among other things, he has no reasonable prospect of establishing a connection between the layoff and his alleged disability. I accept this argument based on the following evidence.
[22] First, Mr. Kullar’s assertion that he was gradually returning to work when he was laid off is contradicted by the unchallenged documentary evidence that he had returned to full duties and hours over a month before his layoff. Second, there is no evidence before me from which the Tribunal could reasonably draw an inference of discrimination regarding the layoff. On the contrary, all the evidence supports Allied’s contention that it laid off Mr. Kullar due to a work shortage and in accordance with the collective agreement.
[23] The collective agreement provides that Allied can lay off employees in reverse seniority order (i.e., least seniority first) when there are work shortages. Allied’s president and majority owner [Owner] affirms that this is what happened in September 2018. He says there was a work shortage at the time, which required the layoff of three labourers. He says Allied identified the three labourers with the least seniority to lay off, and Mr. Kullar was one of them. The Owner’s evidence is consistent with a September 20, 2018 “work shortage layoff” notice, which names Mr. Kullar, SB, and JG. His evidence is also consistent with a January 3, 2020 seniority list provided by the Union. In addition, reports from the Union’s database show no labourer dispatches to Allied between August 2018 and January 2019, which corroborates that Allied did not need additional labourers at that time. The evidence indicates that in February 2019, labourer dispatches to Allied resumed, at which point SB and JG were recalled, while Mr. Kullar was off work receiving WorkSafe benefits.
[24] In my view, the evidence filed does not take Mr. Kullar’s claim that he was laid off because of his injuries out of the realm of conjecture. As a result, the allegation that his layoff was discriminatory cannot proceed forward: Workers’ Compensation Appeal Tribunal v. Hill, 2011 BCCA 49 at para. 27. This part of his complaint is dismissed.
2. Refusal to rehire Mr. Kullar in late 2020 and early 2021.
[25] In the complaint, Mr. Kullar says he was initially “cleared to return to work by [his] doctor” and then reassessed by his doctor and WorkSafe, who “both stated that [he] was 100% healthy and fully able to return to work.” The dates provided for these events are vague and unclear. Based on the materials before me, I interpret Mr. Kullar to be referring to the GRTW Plan in late 2020 and the FCE in February 2021.
[26] Mr. Kullar alleges that Allied discriminated by refusing to rehire him even though he had been medically cleared to work. He says Allied told him it could not rehire him because he “needed to be 100% [healthy] before being able to return to work” and because it had a work shortage. For its part, Allied argues that Mr. Kullar cannot make his case because he has no reasonable prospect of proving that his disability was a factor in the company not rehiring him in late 2020 and early 2021. I agree with Allied, in part.
[27] I have already determined that Mr. Kullar has no reasonable prospect of persuading the Tribunal that his layoff contravened the Code. As a result, at a hearing, in order to engage the Code’s protection and trigger Allied’s duty to accommodate him, Mr. Kullar would need to establish that Allied’s failure to rehire him amounted to a disability-related adverse impact in employment. Allied does not assert – and I do not find – that Mr. Kullar has no reasonable prospect of proving that not being rehired was an adverse impact. The question is whether his disability was a factor in not being rehired.
[28] The Owner’s evidence is that Allied did not need additional labourers when it received the GRTW Plan, so it did not ask the Union to dispatch labourers at that time, and so Mr. Kullar consequently remained on layoff. This version of events is supported by the unchallenged dispatch records filed by the Respondents, which show no labourer dispatches from November 2020 to January 2021. Given this evidence, and considering all of the materials before me, in my view Mr. Kullar has no reasonable prospect of proving that his disability was a factor in him not being rehired by Allied between November 2020 and January 2021. As a result, this part of his complaint is dismissed.
[29] I come to a different conclusion regarding the events in February and March 2021. Allied’s evidence is that it asked the Union to dispatch labourers to it during that time. It submits, however, that Mr. Kullar “would not have been dispatched … in response to these requests” because “WorkSafeBC deemed [Mr. Kullar] was medically unfit to perform the critical duties of the Labourer position.” The Union’s evidence in this regard comes from its president at the time [Union President]. The Union President affirms, and his contemporaneous handwritten notes support, that he spoke to Mr. Kullar and the Owner on several separate occasions between February 2 and 5, 2021. The Union President’s evidence is that, during those conversations:
a. The Union President advised Mr. Kullar that there would be upcoming labourer dispatches, but that Allied had told the Union’s dispatcher that the limitations and restrictions in the L&R Letter precluded Mr. Kullar from returning to work at Allied;
b. Mr. Kullar told the Union President that his doctor said he could return to work and a letter to that effect had been sent to Allied and WorkSafe;
c. The Union President told the Owner that there was a letter from Mr. Kullar’s doctor saying that he could return to work;
d. The Owner told the Union President that Allied did not want Mr. Kullar to come back because the Owner did not want to take on the risk;
e. The Union President told the Owner that Mr. Kullar said he had spoken to Allied’s receptionist, who confirmed receiving a letter from his doctor;
f. The Owner told the Union President not to dispatch Mr. Kullar for the time being, and that he would look into the situation; and
g. The Owner confirmed that he had received the GRTW Plan; however, he told the Union President that he did not want the liability of returning Mr. Kullar to work.
[30] The Owner’s evidence is that the limitations and restrictions set out in the L&R Letter “meant that [Mr. Kullar] could not perform the duties of a Labourer, and rendered him unable to work safely in the shipyard environment.” He says the scope of Mr. Kullar’s limitations and restrictions at that time “directly conflicted with the basic requirements necessary to work in the shipyard,” and “it was not possible for [Allied] to accommodate Mr. Kullar in an alternate position or with modified duties on a permanent basis.”
[31] The Respondents agree that Mr. Kullar was not among the 11 employees dispatched to Allied in response to its request for labourers in February and March 2021. The dispatch records list SB and JG – whose 2017 seniority dates were similar to, but later than, Mr. Kullar’s – among the first group of labourers dispatched at that time. That group also appears to have included a labourer with a seniority date in 2019, according to a January 11, 2021 seniority list filed by the Union.
[32] In contrast to the evidence regarding the period from December 2020 to January 2021, the evidence regarding February and March 2021 does not support that Mr. Kullar remained on layoff at that time due to a work shortage. Nor does it indicate that Mr. Kullar was not dispatched in February or March based on his seniority. Rather, the evidence provided by the Respondents could reasonably support a finding that Mr. Kullar was not rehired by Allied at that time based on information regarding his injuries. In my view, this is enough to take Mr. Kullar’s claim of discrimination out of the realm of conjecture. On the evidence before me, I am not satisfied that Mr. Kullar has no reasonable prospect of proving that his disability was a factor in Allied not rehiring him in February and March 2021.
[33] The remaining question under s. 27(1)(c) is whether Allied is reasonably certain to establish a defence. It says it is. It argues that it had “a bona fide, reasonable, and non-discriminatory justification” for not rehiring Mr. Kullar. Allied asserts that Mr. Kullar was “unable to be returned to work as he was not medically fit to do so.” It argues that rehiring Mr. Kullar “when he [had] been deemed by WorkSafeBC to have significant Permanent Limitations that made him unable to perform the critical demands of being a Labourer would have been contrary to the Company’s health and safety obligations to [him].”
[34] I am not persuaded to dismiss the remaining part of Mr. Kullar’s complaint based on Allied’s arguments and the evidence before me. At a hearing, if Mr. Kullar is able make his case regarding not being rehired in early 2021, the burden would shift to Allied to justify what happened. To establish its justification defence, Allied would need to prove that – among other things – it fulfilled its duty to accommodate Mr. Kullar: British Columbia (Public Service Employee Relations Commission) v. British Columbia Government and Service Employees’ Union (Meiorin Grievance), 1999 CanLII 652 (SCC), [1999] 3 SCR 3 [Meiorin] at para. 54. To do so, Allied would need to put forward evidence establishing that it could not have done anything else reasonable or practical to avoid not rehiring Mr. Kullar in February and March 2021: Meiorin at para. 38. While I do not rule out the possibility that Allied could meet this burden, on the materials before me I an unable to conclude that it is reasonably certain to do so.
[35] The evidence indicates that Allied had conflicting information in early 2021 regarding whether Mr. Kullar was medically able to return to work. The GRTW Plan from late 2020 suggested he might have been, while the information from WorkSafe indicated that he may not have been. In this type of situation, an employer has a positive obligation to seek all relevant information necessary to evaluate whether it can reasonably accommodate an employee: Gordy v. Painter’s Lodge (No. 2), 2004 BCHRT 225 at para. 84. Determinations by third parties, like WorkSafe, about the employee’s disability and fitness to work are not necessarily determinative of the employer’s accommodation obligations under the Code: see Gill v. B.C. (Ministry of Justice) and others (No. 2), 2016 BCHRT 208 at para. 30; Rush v. Fraser Health Authority (No. 2), 2024 BCHRT 13 at para. 47. In my view, the evidence filed does not sufficiently detail Allied’s inquiries into Mr. Kullar’s disability and need for accommodation in early 2021. Allied simply asserts that given the information from WorkSafe, Mr. Kullar was precluded from working as a labourer and it could not reasonably accommodate him. In my view, a hearing is required to test this assertion.
[36] On the whole of the evidence before me, I am not satisfied that Allied is reasonably certain to establish a defence in relation to what happened in February and March 2021. This part of the complaint against Allied will proceed to a hearing. The rest of the complaint against it is dismissed under s. 27(1)(c).
B. Could the allegations against the Union contravene the Code?
[37] I find I can most efficiently decide the Union’s dismissal application under s. 27(1)(b). Section 27(1)(b) allows the Tribunal to dismiss a complaint if it does not pass the “arguable contravention test.” The threshold for passing this test is low. The complaint must only allege acts or omissions that, if proven, could contravene the Code: Gichuru v. Vancouver Swing Society, 2021 BCCA 103 at para. 56. In my view, Mr. Kullar’s complaint against the Union does not meet this threshold.
[38] The complaint alleges that Allied discriminated against Mr. Kullar by laying him off in 2018 and refusing to rehire him in late 2020 and early 2021. Mr. Kullar says Allied failed to accommodate him. The sole allegation against the Union is that it discriminated against Mr. Kullar in early 2021 by refusing to file a grievance regarding Allied’s alleged discrimination. This amounts to an allegation that the Union failed to adequately represent Mr. Kullar. Without more, this type of allegation could not, if proven, amount to discrimination by the Union in Mr. Kullar’s employment.
[39] It is not enough for Mr. Kullar to simply allege that he had a disability and the Union failed to represent his interests. These alleged facts alone are not a basis for a complaint under s. 13 of the Code: Graham v. School District No. 38 (Richmond) and CUPE Local 716, 2005 BCHRT 520 at para. 59. More is required to pass the arguable contravention test, such as alleged facts capable of supporting a conclusion that the Union represented Mr. Kullar worse than it would have represented another member in the circumstances, or that his disability was a factor in the adequacy of the Union’s representation: Graham at para. 59. Mr. Kullar makes no such allegations. The complaint against the Union is therefore dismissed under s. 27(1)(b).
IV CONCLUSION
[40] The Union’s dismissal application is granted. Mr. Kullar’s complaint against the Union is dismissed under s. 27(1)(b) of the Code.
[41] Allied’s dismissal application is granted in part. The part of Mr. Kullar’s complaint that relates to Allied not rehiring him in February and March 2021 will proceed to a hearing. The other parts of his complaint are dismissed under s. 27(1)(c) of the Code.
[42] Given Mr. Kullar’s failure to respond to the Respondents’ dismissal applications and the Tribunal’s related correspondence, I find that this is an appropriate case in which to provide him with the following notice under s. 27.5 of the Code and Rule 4(5) of the Tribunal’s Rules of Practice and Procedure:
a. Mr. Kullar must diligently pursue his complaint.
b. Within 30 days of the release of this decision, Mr. Kullar must write to the Tribunal and Allied, confirming that he will diligently pursue his complaint.
c. Mr. Kullar is on notice that if he does not do as directed in (b) above within the time allowed, the Tribunal may dismiss his complaint under s. 27.5 of the Code.
Jonathan Chapnick
Tribunal Member