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Anderson v. Spectrum Society for Community Living, 2025 BCHRT 80

Date Issued: April 1, 2025
File: CS-003534

Indexed as: Anderson v. Spectrum Society for Community Living, 2025 BCHRT 80

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:

Kaare (Korey) Anderson
COMPLAINANT

AND:

Spectrum Society for Community Living
RESPONDENT

REASONS FOR DECISION

Tribunal Member: Shannon Beckett

Counsel for the Complainant: Trevor Thomas

Counsel for the Respondent: David Penner

Date of Hearing: February 5-7, 2024

Location of Hearing: Virtual (MS Teams)

Table of Contents

I INTRODUCTION

[1] Korey Anderson was employed on and off with Spectrum Society for Community Living [ Spectrum ] for seventeen years before his employment ended in September 2020. Spectrum describes itself as a “community organization, registered as a society…[that] supports vulnerable people with disabilities to lead their lives”. For approximately four years before the end of his employment, Mr. Anderson worked primarily with one client, who I refer to in this decision as “SP”.

[2] In February 2020, just prior to the onset of the COVID-19 pandemic, Mr. Anderson went overseas on vacation. When he returned to Canada, he became ill and was not able to return to work as planned. Mr. Anderson remained off work on medical leave from March 2020 until August 2020, when his doctor formally cleared him to return to work. During this time, Mr. Anderson met regularly with his doctor and underwent different tests to try to understand and treat the various symptoms he was experiencing.

[3] When Mr. Anderson advised Spectrum he was ready to return to work in August 2020, Spectrum advised him that it had made the decision to permanently assign other employees to support SP, and that it would have to arrange a different work assignment for him going forward. Mr. Anderson declined to accept the alternate work assignment Spectrum proposed, and asserted that he had been constructively dismissed.

[4] On December 4, 2020, Mr. Anderson filed a complaint with the Tribunal alleging that Spectrum discriminated against him based on his physical disability when it refused to return him to his pre-leave position working with SP. Spectrum denies discriminating and says its decision to assign other employees to work with SP was unrelated to Mr. Anderson’s medical leave and was based entirely on its assessment of what was in the best interests of SP. Further, it says if Mr. Anderson can be said to have had a disability during his medical leave, it was resolved by July 2020, and thus, he did not have a disability when it posted his pre-leave position in August 2020. In any event, Spectrum argues that its decision to change Mr. Anderson’s position to assist different clients did not adversely impact him within the meaning of the Human Rights Code [ Code ].

[5] In February 2021, Mr. Anderson brought a claim before the Employment Standards Branch [ ESB ] alleging Spectrum failed to pay him compensation for length of service after it constructively dismissed him. That claim was dismissed in a written decision issued November 1, 2022, which held that Mr. Anderson had terminated his own employment by refusing to work or to discuss the terms of his return to work [the ESB Decision ].

[6] I heard this complaint over three days, from February 5-7, 2024. During that time, I heard from three witnesses: Mr. Anderson; Naomi Holmes, Spectrum’s Director of Human Resources; and Jeriah Newman, Program Manager and Mr. Anderson’s direct supervisor at the relevant time.

[7] The parties agree on most of the facts that are relevant to this complaint, and neither credibility nor reliability are significant issues in this case. The main issues that govern resolution of this complaint are:

a. whether Mr. Anderson’s illness(es) between March and August 2020 amounts to a disability for the purposes of the Code ,

b. whether Spectrum’s decision to reassign Mr. Anderson from his former position working with SP adversely impacted him within the meaning of the Code ,

c. whether Mr. Anderson’s illness(es) was a factor in Spectrum’s decision to reassign him from his former position working with SP, and if so

d. whether Spectrum’s conduct in reassigning Mr. Anderson and proposing an alternative assignment was justified.

[8] For the following reasons, I find Mr. Anderson has not proved his complaint of discrimination. Although Mr. Anderson has proved that his illness amounted to a disability for the purposes of the Code , and that his illness was connected to the adverse impact he experienced when Spectrum reassigned him from his pre-leave position, Spectrum has demonstrated that its conduct in reassigning Mr. Anderson was justified.

II BACKGROUND

[9] Mr. Anderson was employed with Spectrum on and off from approximately June 2003 to September 2020. Initially, he worked as a relief worker, and over time he moved into a position as a Community Support Worker 4 [ CSW4 ]. The designation of CSW4 indicated he was at the top of the pay scale for community support workers. This was due to his experience and specific training and certification he held.

[10] As a Community Support Worker, Mr. Anderson assisted Spectrum clients with most aspects of their daily living, including daily personal care, community interactions, medical appointments, and social engagements. Spectrum clients were typically vulnerable individuals with multiple significant health challenges.

[11] Both parties agree that SP was a particularly vulnerable client with multiple complex needs. In particular, SP required assistance with basic self-care, was non-verbal, and could become agitated easily, which would sometimes result in violence. Both parties also agreed that it was very important to provide consistency and routine for SP.

[12] There was some question in the evidence at the hearing about whether Mr. Anderson’s work with SP had been formally assigned to him by Spectrum via contract. However, neither party raised this as an issue in their submissions, and both have led evidence and made submissions acknowledging that prior to his medical leave Mr. Anderson held a permanent position working primarily with SP. For the purposes of this decision, I have determined that at least in substance (if not also in form), Mr. Anderson’s assignment working with SP was his pre-leave position, and that there is no question that his pre-leave position was changed when he was cleared to return to work in August 2020.

[13] In February 2020, Mr. Anderson took an approved vacation leave to travel with his family to the Philippines. While there, he became ill with fever, vomiting, and diarrhea, and had to take medication to control his symptoms. When he returned home, concerns about COVID-19 had become widespread, and Spectrum had introduced a mandatory 14-day quarantine period for employees returning from overseas.

[14] On March 13, 2020, Ms. Holmes emailed Mr. Anderson to tell him about the requirement that he quarantine for 14 days before returning to work. In her email, she told Mr. Anderson that he could return to work on March 26 as long as he was not experiencing any symptoms at that time. On March 25, Mr. Anderson emailed Ms. Holmes to advise her that he had symptoms of cough, sore throat, and sneezing, which were possible symptoms of COVID-19. Ms. Holmes wrote back the same day and provided Mr. Anderson with Spectrum’s COVID-19 response plan, and advised him to apply for medical employment insurance as soon as possible.

[15] On April 4, Mr. Anderson emailed Mr. Newman and Ms. Holmes with an update about his health. He said that he continued to have sinus and coughing issues, and had spoken with a public health nurse and was advised to remain at home until symptoms were gone. On April 10, Mr. Anderson emailed Mr. Newman to advise that he had started on a “stronger antibiotic” to clear up a sinus infection, and that he was going to be on it for another seven days, and his doctor advised he should be off work until his symptoms were gone.

[16] On April 16, Mr. Anderson emailed Ms. Holmes and advised her he had three more days of antibiotic medication to take, and that he was “cautiously optimistic” that he could return to work soon. He told her he would follow up in a few days. On April 20, he met with his doctor virtually and reported he had reflux issues which he thought could be causing throat issues. A medical note from the visit indicates he was on medication at the time.

[17] On April 24, Ms. Holmes emailed Mr. Anderson to get an update, and she advised him that he would need a doctor’s note confirming he was fit to return to work before he came back. Mr. Anderson wrote back on April 27 to advise Ms. Holmes he had finished his antibiotics and his sinus issue appeared to be cleared up, but now he had stomach issues, and his doctor had advised him to stay off work until his issues were resolved.

[18] On April 30, Mr. Anderson had another virtual visit with his doctor. A medical note from the visit indicates Mr. Anderson was experiencing stomach issues and that he was to call back in one week to check in with his doctor again. On May 1, Mr. Anderson emailed Ms. Holmes to advise her that his doctor had advised him to stay home for another week.

[19] On May 13, Ms. Holmes wrote to Mr. Anderson requesting an update. Mr. Anderson wrote back and told her he was still struggling with stomach issues and his doctor advised he remain off work until his stomach issues cleared up. A medical note dated May 14 indicates Mr. Anderson had a virtual visit with his doctor that day, he complained about ongoing stomach issues, and the doctor ordered tests.

[20] On May 21, KF, a return-to-work Coordinator at TeksMed Services Inc. [ TeksMed ], contacted Mr. Anderson to seek medical information. TeksMed was the third-party service contracted by Spectrum to administer employee medical leaves.

[21] On May 27, Mr. Anderson had another virtual visit with his doctor. A medical note from that day indicates he was still experiencing stomach issues and his doctor had prescribed him another medication to assist. On May 28, Mr. Anderson emailed Ms. Holmes and told her he was starting on a new antibiotic to assist with his stomach issues. He advised he would see how it worked over seven days, and then would check in with his doctor again. Ms. Holmes replied the same day asking when the seventh day of his completed medication would be. He responded the following day advising it would be “next Friday”, and Ms. Holmes responded to ask him to check in on that day with an update.

[22] On June 1, KF from TeksMed contacted Mr. Anderson again to request a medical update. She called him on the telephone and also appears to have sent him a letter via mail advising him that she was attempting to speak with him.

[23] On June 5, Mr. Anderson had another virtual visit with his doctor, and a medical note from that day indicates he reported his stomach issues were “almost resolved now”, but that he now had a sore throat and congestion. The medical note advises to “wait over the weekend and see outcome”. That same day, Mr. Anderson emailed Ms. Holmes to advise her that he finished the antibiotics, but was still required to stay home.

[24] On June 8, Mr. Anderson had another virtual visit with his doctor and a medical note from the visit indicates that his stomach issues were resolved, and he was being prescribed a medication to assist with acid reflux and sore throat. The medical note also indicates Mr. Anderson’s doctor prepared a “sick note” for Mr. Anderson that day. Also on June 8, KF appears to have called Mr. Anderson again and left a message requesting a call back.

[25] On June 9, Mr. Anderson had what appears to have been an in-person visit with his doctor, and a medical note indicates he was complaining of sinus pain and ongoing stomach issues. Mr. Anderson’s doctor prescribed another medication and ordered a sinus x-ray as well as repeat tests in relation to his stomach issues.

[26] On June 10, Mr. Anderson emailed Ms. Holmes and informed her that he was still not permitted to return to work and that his doctor had ordered more tests. He said he expected it would take another week before he had any test results. Also on June 10, Mr. Anderson had another virtual visit with his doctor and was advised that his sinus x-ray showed inflammation. He was prescribed prednisone for 7 days as a result.

[27] On June 19, KF emailed Ms. Holmes and indicated she had spoken with Mr. Anderson by phone and he had advised her he had an upcoming medical appointment but felt like he was improving. On June 26, KF called Mr. Anderson again asking for an update.

[28] On June 23, Mr. Anderson had another virtual visit with his doctor and a medical note from that day indicates he was experiencing ongoing sinus and eye issues, and the doctor ordered more tests. On June 30, Mr. Anderson had another virtual visit with his doctor and complained of “ongoing fatigue” and the doctor ordered blood tests.

[29] On July 7, Mr. Anderson had an in-person appointment with his doctor. A medical note from that date indicates he had been diagnosed with a bacterial infection of the stomach and was given antibiotics for 14 days. The note also indicated his blood test revealed he was pre-diabetic.

[30] On July 8, it appears that Mr. Anderson saw a different doctor and discussed his pre-diabetes diagnosis. A medical note from that day indicates the doctor prescribed medication and advised Mr. Anderson about steps he could take to avoid or delay the onset of diabetes.

[31] On July 8, Mr. Anderson emailed Ms. Holmes and advised her that he received his test results back and had been diagnosed with a stomach bacterial infection. He said he had been advised to begin another 14-day cycle of antibiotics, then to return to his doctor for a review to see if he can then be returned to work. On July 13, Mr. Anderson spoke with KF and advised her about his diagnosis and that he was put on two weeks of antibiotics and that he would likely be able to return to regular duties at work when the two weeks was over.

[32] Mr. Anderson appears to have met with his doctor on three occasions after July 13. On July 14 he told his doctor the antibiotics were impacting his sleep. On July 28, he told his doctor he was having ongoing stomach issues and the doctor advised him to wait for a period of time and to check in again.

[33] Finally, on August 13, Mr. Anderson met with his doctor and told him he was feeling better and requested a note advising he was fit to return to work. Mr. Anderson’s doctor provided the note that day. The note stated that Mr. Anderson could “return to work full duties full time starting next week”. That same day, Mr. Anderson wrote to Ms. Holmes and KF to advise he would be able to return to working full duties the following week. Ms. Holmes wrote back and requested a meeting with Mr. Anderson and Mr. Newman to discuss his return to work. She identified that it was “a very quick turnaround to accommodate your return to work” and told him that “there have been some changes at [SP’s place] since you’ve been off and due to Covid”. She proposed Mr. Anderson meet with herself and Mr. Newman the following week on August 17 to discuss his return to work.

[34] Between July 8 when Mr. Anderson first told Ms. Holmes his stomach issue had been diagnosed and he might be able to return to work after two weeks, and August 13, when he formally advised her he was medically cleared to return to work, Ms. Holmes had discussions with Mr. Newman and other members of SP’s care team to determine whether Mr. Anderson could return to his pre-leave position caring for SP. Ms. Holmes and Mr. Newman both testified that they determined it would not be in SP’s best interest to disrupt the continuity and consistency in SP’s life to add Mr. Anderson back into the care team. As such, Spectrum decided to permanently assign Mr. Anderson’s pre-leave position to the two other Spectrum employees who had been caring for SP in Mr. Anderson’s absence. They posted Mr. Anderson’s pre-leave position internally on August 10, with a closing date of August 17. Two of SP’s current team members applied for the position and were given interviews and ultimately attained the position. Although the position was technically posted, Ms. Holmes testified that the posting was only a “formality”, and that Mr. Newman knew who was going to take over the hours in Mr. Anderson’s previous assignment.

[35] Before August 17, neither Mr. Newman nor Ms. Holmes advised Mr. Anderson that the position with SP had been posted.

[36] Mr. Anderson met over Zoom with Ms. Holmes and Mr. Newman on August 17 and was advised that he would not be able to return to his pre-leave position caring for SP. Ms. Holmes testified that during the meeting she explained the reasons for not returning Mr. Anderson to work with SP, and advised him that Spectrum would work on creating an alternative assignment for him, and would pay him his full wages while it did so. Ms. Holmes testified that Mr. Anderson expressed concerns about his assignment needing to be close to his home and having hours that would accommodate his family, including his young daughter. Ms. Holmes testified that she told Mr. Anderson that Spectrum would take all of his concerns into consideration in developing his new assignment. She testified that Mr. Anderson was upset during the meeting, and expressed his view that Spectrum’s decision was unfair.

[37] On August 25, Ms. Holmes sent Mr. Anderson a letter outlining Spectrum’s return to work plan for him. In the letter, Ms. Holmes included Spectrum’s return to work policy which stated, in part, “upon clearance to work, an employee shall be placed in his/her former position, or in a position of equal rank and basic pay”. The letter went on to state:

We first look at the stability of the person supported and then the team and determine if additional changes will be sustainable. We are committed to finding each of our staff work upon their clearance to return, however we have determined that we are not able to accommodate you in your former position.

[38] The letter also set out a proposed assignment which the letter stated had “comparable hours” and were “mostly day shifts”. The total hours for the proposed assignment were between 35.5 and 38.5, and the assignment involved working with three different clients, one of which was identified as a temporary assignment until December. Ms. Holmes indicated that because one client was only a temporary assignment, Spectrum would continue to “explore other options to replace those displaced hours”. Ms. Holmes then indicated that Mr. Anderson would start the return-to-work plan by meeting the new clients and then undergoing orientation. She stated that Mr. Anderson would be paid “your full hours, as working notice, over the next 8 weeks and while we determine a permanent position for you”.

[39] On August 28, Mr. Anderson emailed Ms. Holmes in response to the letter and asked for “more detailed information on what is being offered as an equivalent job to my previous position”. RG, a human resources manager with Spectrum, responded to Mr. Anderson’s email that same day advising that Ms. Holmes was out of the office. RG responded to Mr. Anderson’s question with the following:

The letter provided to you indicates opportunities to work with 3 people. In summary, the opportunities entail community based supports with three gentleman in Vancouver. They are fairly independent and each need varying degrees of support — life skills, assistance with community activities, etc. The meet and greets are an opportunity to see if there is a connection between you and the individual, you can get a sense of what their day looks like, the specific support needed, etc. If you have specific questions, please indicate what those are and we would be happy to speak to them.

[40] On August 31 and September 3, Ms. Holmes emailed Mr. Anderson asking whether he was going to accept the position Spectrum had offered. It appears that sometime after these emails, Mr. Anderson retained counsel who sent a letter to Spectrum setting out Mr. Anderson’s view that he had been constructively dismissed.

[41] On September 22, Ms. Holmes wrote to Mr. Anderson and stated that Spectrum had asked him to report to work on September 14 but he had not done so and had not called to indicate he would not be reporting for work. She advised him that Spectrum was providing him with “a final opportunity to continue to be employed by returning to work in order to undergo a general orientation on Friday, September 25”.

[42] Mr. Anderson did not return to work with Spectrum.

III ANALYSIS AND DECISION

[43] To prove his discrimination complaint, Mr. Anderson must demonstrate on a balance of probabilities that:

a) the illness(es) that kept him away from work from March to August 2020 amounts to a disability for the purposes of the Code ;

b) Spectrum’s decision not to return him to his pre-leave assignment adversely impacted him in the area of employment within the meaning of the Code , and

c) his illness(es) was a factor in any employment-related adverse impacts he experienced.

Moore v. British Columbia (Education), 2012 SCC 61, at para. 33

[44] If Mr. Anderson proves these three elements, then the burden shifts to Spectrum to prove that its conduct was justified. If Spectrum justifies its conduct, then the conduct will not amount to discrimination.

A. Disability

1. General Principles

[45] The Code does not define “disability”, but the Tribunal interprets the term liberally to achieve the purposes of the Code : British Columbia Human Rights Tribunal v. Schrenk , 2017 SCC 62 at para. 31. The purposes of the Code include the removal of barriers that people face in certain areas of daily life because of their disabilities. Those barriers may arise from actual functional limitations associated with a disability, or society’s perception of, or response to, the disability. People with disabilities have long faced exclusion and marginalization based on stereotype, ignorance, and fear: Eldridge v. British Columbia (Attorney General) , [1997] 3 SCR 624. It is that exclusion and marginalization, founded on generalizations and prejudice, which the Code seeks to eliminate.

[46] To decide whether a condition is a “disability”, the Tribunal will consider the degree of impairment, any functional limitations, and the social, legislative, or other response to that impairment and/or limitations: Morris v. BC Rail , 2003 BCHRT 14, at para. 214. It considers factors like “whether the condition entails a certain measure of severity, permanence and persistence”: Viswanathapuram v. Canadian Alliance of Physiotherapy Regulators , 2017 BCHRT 29 at para. 40.

[47] This Tribunal has held that it is not necessary that a medical condition be permanent in order to amount to a disability for the purposes of the Code : Wali v. Jace Holdings Ltd ., 2012 BCHRT 389, at para. 82. However, simply because a person is on a medical leave from work due to a medical condition does not mean the condition will automatically amount to a disability for the purposes of the Code : Goode v. Interior Health Authority , 2010 BCHRT 95. In Goode , the Tribunal held that “employees may be absent from work for a variety of temporary illnesses that do not necessarily constitute disabilities”: at para. 105.

[48] In other words, “disability” does not capture every medical problem. Specifically, it does not include conditions that are temporary and treatable, like a cold or flu: Goode at para. 105; Morris at para. 209. The Supreme Court of Canada explains that these types of conditions are excluded because “there is not normally a negative bias against these kinds of characteristics or ailments”: Québec (Commission des droits de la personne et des droits de la jeunesse) v. Boisbriand (City) , 2000 SCC 27 at para. 82. In Boisbriand , the Court went on to explain that the focus of the analysis of whether a condition amounts to a disability is properly on “obstacles to full participation in society rather than on the condition or state of the individual, ailments (a cold, for example), or personal characteristics”. The focus of the analysis in the human rights context is properly on “human dignity, respect, and the right to equality rather than a simple biomedical condition”: Morris at para 209, citing Boisbriand , at para. 77.

[49] The practical effect of the distinction in Boisbriand (and cases that have followed) is that because a “normal ailment”, such as a cold or flu, does not amount to a disability for the purposes of the Code , even if an employer fires an employee for taking time off to recover from a cold or flu, the termination will typically not engage the protection of the Code . Thus, while it may seem morally wrong or fundamentally unfair to adversely impact a person in employment because of or in relation to a medical condition which is involuntary and outside of their control, nevertheless, it is not necessarily prohibited by the Code .

[50] The exclusion of “normal ailments” from the protection of the Code may be relevant in the present case, as the evidence demonstrates that while he was off, Mr. Anderson experienced a variety of symptoms, which may or may not have been connected, many of which were mild symptoms typical of a cold or flu.

2. Parties’ Positions

[51] Mr. Anderson submits that his medical condition was significant, involuntary, and had a degree of permanence and persistence, having lasted approximately five months. With regard to his degree of impairment and functional limitations, Mr. Anderson’s evidence was that his medical condition affected his daily functioning. While he could perform some of his daily tasks (e.g., going to the grocery store), these were temporary tasks that would not require him to be away from home for hours. Otherwise, his evidence was that he was fatigued, had sleep issues, low energy, and discomfort in his body, and that at times, he was subject to frequent bowel movements and could not be away from the bathroom for a long period of time. Further, Mr. Anderson submits that his medical condition made it unrealistic for him to perform his job duties. He provided evidence that SP’s complex needs required him to have good health and focus. He testified that caring for SP was a challenging role as SP was highly demanding.

[52] Spectrum argues that initially Mr. Anderson’s illness “may” have amounted to a disability for the purposes of the Code , but that by July 2020 it had resolved. Spectrum says that the evidence demonstrates that by July 2020, Mr. Anderson was able to take walks, exercise on his bike and perform other normal activities of life. Spectrum says that his remaining symptoms were that he needed to remain close to a bathroom and was experiencing fatigue, and while unpleasant, these symptoms cannot amount to a disability protected by the Code . As such, Spectrum argues that Mr. Anderson did not have the protected characteristic of disability at the relevant time, in August 2020, when Spectrum decided to reassign SP’s care.

[53] Mr. Anderson responds that the assessment of what constitutes a disability must be assessed by considering the information Spectrum had at the time, and not the information it was provided at the hearing. I disagree with Mr. Anderson’s position on this point. Mr. Anderson bears the burden of proving his illness amounted to a disability at the relevant time for the purposes of the Code . To the extent that Mr. Anderson is making this argument in the context of Spectrum’s duty to accommodate, I will consider this argument later in the justification analysis if necessary.

[54] Having said that, with respect to the timing of Mr. Anderson’s illness, I also do not accept Spectrum’s argument that the relevant time for consideration of whether Mr. Anderson had a disability is only August 2020. If Mr. Anderson proves he had a disability during his medical leave and that Spectrum’s decision to reassign SP’s care was both, as a result of his disability-related leave, and adversely impacted him, then, even if the disability had resolved by the time the decision was made, he will have proved the requisite elements of his case. Any other view would permit employers to terminate employment because of disability-related leaves so long as the disability had resolved.

[55] I move on next to consider whether Mr. Anderson has proved the various symptoms he experienced over the five months he was away from work on medical leave amount to a disability for the purposes of the Code .

3. Did Mr. Anderson’s illness(es) amount to a disability?

[56] For the reasons that follow, I find Mr. Anderson’s experience of a variety of symptoms over approximately five months from March to August 2020 amounts to a disability for the purposes of the Code . Despite the symptoms being temporary, and for the most part relatively mild, the reality is that given the social context of the COVID-19 pandemic and Spectrum’s insistence that he be medically cleared before he could return to work, Mr. Anderson ended up being off work for a significant period of time. The facts demonstrate that Mr. Anderson’s treating medical professionals did not medically clear him to return to work for approximately five months, and that Spectrum perceived him to be medically unable to work for this period of time. In these circumstances, Mr. Anderson’s illness(es) ended up being more than just mild and transitory and are distinguishable from common cold, flu or gastro symptoms which typically do not engage the protection of the Code .

[57] Although Spectrum argues that the timing of Mr. Anderson’s return to work was “suspicious”, there was no serious question at the hearing that Mr. Anderson was testifying honestly about the nature and extent of his illness. The uncontroverted evidence demonstrates that between March and August 2020, Mr. Anderson was experiencing a variety of different symptoms, and that he was regularly accessing medical care to try to identify and treat those symptoms. Initially, Mr. Anderson was experiencing symptoms commonly associated with cold, flu, and/or COVID-19, such as sore throat, fever, coughing, and sneezing. However, as time passed, Mr. Anderson developed different symptoms that related to his stomach and digestive system. Near the end of his leave, other symptoms such as fatigue, sleep issues, sinus issues, and eye issues emerged, as did a medical diagnosis of pre-diabetes. Ultimately it was a stomach bacteria that was diagnosed as being the culprit for Mr. Anderson’s stomach and digestive issues, and what he focused on in his evidence and submissions as his primary reason for not being able to attend work.

[58] With respect to his diagnosis of pre-diabetes, Mr. Anderson did not provide specific evidence about whether or how it may have been related to any symptoms he was experiencing at the time that required him to remain off work. Similarly, the documentary evidence does not set out what symptoms, if any, may have been associated with his diagnosis of pre-diabetes. Based on the evidence and the parties’ submissions, I do not understand the diagnosis of pre-diabetes to be at issue in this complaint. As such, I have kept the analysis focused on the symptoms Mr. Anderson says necessitated his medical leave, including cough, sore throat, sinus issues, sleep issues, low energy, fatigue, and stomach and bowel issues.

[59] The analysis of whether Mr. Anderson’s illness(es) amount to a disability for the purposes of the Code is complex because the evidence demonstrates he was experiencing a variety of symptoms, some of which appear to be unrelated, and only one category of which resulted in a diagnosis. Below, I consider the severity and permanence of Mr. Anderson’s stomach and bowel symptoms, as well as the severity and permanence of his other symptoms. I then look at the symptoms in a broader social context to determine whether, separately or together, they amount to a disability that is protected by the Code .

Severity and Permanence of Symptoms

[60] With respect to the severity of his symptoms, I find that at times Mr. Anderson’s stomach issues were somewhat severe, and at other times they were relatively mild. He testified that at times during the course of his medical leave, he experienced unpredictable diarrhea many times a day and could not be away from a bathroom for any length of time. He described the diarrhea as causing him fatigue, low energy and causing him to develop fissure tears. I note, however, that these more severe symptoms do not appear to have persisted over the entire time Mr. Anderson experienced stomach issues. Mr. Anderson testified that the various rounds of antibiotics he was prescribed offered some relief of his symptoms. Further, the June 5 and 8 doctor’s file notes indicate that Mr. Anderson’s stomach issues, in particular diarrhea, were either “almost resolved” or “resolved”, indicating to me that while the stomach issues may have continued into August, they were not as severe as they had been. Mr. Anderson’s own evidence about the latter portion of his leave was that his symptoms had mostly resolved and he was able to take walks, exercise on his bike and perform other normal activities of life. On the evidence, I find Mr. Anderson’s stomach issues were moderately severe for about 1.5 months, between late April when they first started and June 5 when they were mostly resolved, and that for other times they were relatively mild.

[61] Mr. Anderson did not testify at length about the extent of his cough, sore throat, or sinus issues. What he did say was that he felt compelled to remain at home when he was experiencing these symptoms because of the ongoing COVID-19 pandemic. The documentary evidence, similarly, makes fairly brief mention of these other symptoms. For example, in the June 5 medical file note the doctor described “now mild sore throat with some congestion”, and recommended “will wait over the weekend and see outcome”. Based on the evidence before me, I find that Mr. Anderson’s on and off symptoms of cough, sore throat, sinus issues and congestion were relatively mild, and were comparable to (if not actually), typical cold or flu symptoms.

[62] With respect to the question of permanence, I find that Mr. Anderson’s stomach issues had some degree of permanence to them, but that ultimately they were transitory and able to be completely resolved. The medical evidence demonstrates that Mr. Anderson experienced various levels of stomach upset, diarrhea and gas for approximately 4 months, from late April through to August. The stomach issues occurred at different levels of severity over the four months, and it was not until August that Mr. Anderson finished the last round of antibiotics and that his stomach issues were completely resolved. Four months is a significant amount of time to be afflicted with an illness, and the Tribunal has held that some medical conditions of this duration have had the requisite “certain measure of…permanence” to amount to a disability. However, in this particular case, Mr. Anderson’s symptoms waxed and waned over the period of time he was on leave. I have found that he experienced moderately severe symptoms for approximately 1.5 months between April and June, but that otherwise his symptoms were relatively mild. Further, his symptoms were able to be completely resolved with antibiotics, and he was able to return to work performing full duties full time. Leaving aside for a moment the total amount of time Mr. Anderson was off work until his symptoms completely resolved, when I look at how his stomach and bowel symptoms arose and impacted him on and off, I conclude that in this case, Mr. Anderson’s stomach issues were transitory.

[63] I make the same finding in relation to Mr. Anderson’s other symptoms. The evidence demonstrates that Mr. Anderson’s symptoms of cough, sore throat, and sinus issues, which started on or about March 25, were treated with antibiotics and had resolved by April 19; approximately 3-4 weeks. He developed a sore throat and congestion again on June 5, but that appears to have been resolved by the end of June or early July, when the medical notes make no further mention of these symptoms; again, 3-4 weeks. Near the end of June, he started complaining about ongoing fatigue, which showed up in the medical notes until mid-July; approximately 3 weeks. Based on their short duration and ultimate resolution, I find these symptoms were transitory symptoms of the type typically associated with a common cold or flu.

[64] As I have already set out, typically mild and transitory illnesses such as a cold or flu do not amount to disabilities for the purposes of the Code . Relying on Anastacio v. Patterson Dental , 2014 BCHRT 111, Spectrum argues that stomach issues such as gastroenteritis also do not amount to a disability under the Code . In Anastacio, the complainant had seen a doctor because he was experiencing “vomiting and constant and ongoing diarrhea resulting in weakness, low energy level and fatigue”. The Complainant had been off work from approximately March 20 to April 4, so approximately 2 weeks. In deciding that this medical condition did not amount to a disability for the purposes of the Code the Tribunal held:

While illness can and often does rise to the level of a disability within the meaning of the Code in cases such as cancer, or other medical conditions which are characterized by significant degree of permanence and which substantially interfere with a person’s ability to participate fully in his or her employment and enjoyment of life, gastroenteritis is not such an illness, however severe its symptoms may be for a brief period of time .

[emphasis added]

[65] In the present case, Mr. Anderson’s stomach and bowel symptoms were similar to the ones experienced by the Complainant in Anastacio , but his symptoms waxed and waned in severity and lasted longer. The Tribunal in Anastacio characterized stomach and bowel symptoms as typically not rising to the level of disability within the meaning of the Code . To the extent those types of symptoms are commonly experienced by many people, and to the extent that those symptoms tend to be transitory and lack a significant degree of permanence, I agree.

[66] Looking at Mr. Anderson’s various symptoms separately, I consider each category of symptom to have been transitory, and for the most part, relatively mild. However, the fact of the matter is that Mr. Anderson’s various transient and mostly mild symptoms resulted in him being on a continuous medical leave for approximately five months. This is not the “brief period of time” contemplated in Anastacio . On its face, the total length of time Mr. Anderson was on medical leave appears to bring his illness(es) out of the realm of transitory and mild.

Mr. Anderson’s Symptoms in Context

[67] I accept that Mr. Anderson was ill with a variety of symptoms between March and August 2020, and that during this time, he obtained a series of medical recommendations to remain away from work until his various symptoms resolved. Although the medical evidence indicates that some of the symptoms he was experiencing at the time were not particularly severe (e.g. cough, sore throat, congestion), given the timing of Mr. Anderson’s initial illness, being the onset of the COVID-19 pandemic, it is understandable that a medical professional would recommend Mr. Anderson remain away from work until such symptoms had resolved. At the time, little was known about COVID-19, including how it was transmitted, how it might affect different groups of people, including vulnerable individuals, and what the mortality rate was. Further, no vaccine or effective treatments had yet been developed, and the province’s hospitals were filled with sick people, some of whom were dying. As a result, there was widespread fear, uncertainty, and caution in relation to medical ailments that might have been connected to COVID-19.

[68] At the hearing, the parties provided evidence of Spectrum’s COVID-19 Response Plan, which mandated employees experiencing COVID-19 symptoms to self-isolate. Further, the broader provincial response was to declare a state of emergency and advise people with possible symptoms of COVID-19 to self-isolate to prevent the spread of the disease: Jickling v. Sweet Meadows Market (No. 2) , 2024 BCHRT 325, at para. 25. Thus, considering Mr. Anderson’s symptoms in context, although many of them were relatively mild, they required him to be absent from work, both as a matter of internal policy and provincial direction.

[69] Specifically, on March 13, 2020, Spectrum told Mr. Anderson he was required to quarantine for 14 days before returning to work. Further, on April 24, Spectrum told Mr. Anderson he would require a doctor’s note confirming he was fit to return to work before he came back. That was not available for another few months. These facts give rise to both Spectrum’s perception that Mr. Anderson may be disabled from working, and the reality that his treating medical professionals were recommending that he not return to work.

[70] If I were only considering their nature (i.e. mostly mild, transient, and able to be completely resolved), I might find that the various symptoms Mr. Anderson experienced, including the diagnosed bacterial infection, are the kinds of “normal ailments” the Supreme Court has identified as not engaging the protection of the Code . However, in the context of the onset of the COVID-19 pandemic, it is clear that Mr. Anderson was encouraged, if not actually required to remain at home when he was experiencing such symptoms. I find that the COVID-19 pandemic was linked to both the reason Mr. Anderson initially required the medical leave, and more importantly, the length of the medical leave, which extended for approximately 5 months. His symptoms waxed and waned and were less and more severe over the course of his medical leave, but they did not completely resolve at any point over the 5-month period such that Mr. Anderson’s medical professionals ever cleared him to return to work.

[71] Ultimately, the context of the COVID-19 pandemic, combined with the significant length of time Mr. Anderson was on leave, and Spectrum’s conduct in insisting he be medically cleared before he returned to work (demonstrating its perception he may have been disabled from working), all persuade me that Mr. Anderson’s illness(es) are distinguishable from typical cold, flu or gastro symptoms such that his illness(es) between March to August 2020 amount to a disability for the purposes of the Code .

[72] Having determined that Mr. Anderson has proved he had a disability, I now move on to consider whether Mr. Anderson has proved he experienced an adverse impact which engages the protection of the Code .

B. Adverse impact

[73] Mr. Anderson’s submissions in relation to adverse impact are contained in one short paragraph. Specifically, he says he experienced adverse treatment when “he was not returned to his pre-leave position, and he was not given the opportunity to apply for the role in the job posting…[a]s a result, Mr. Anderson asserted he was constructively dismissed.”

[74] Spectrum responds that a change in Mr. Anderson’s job does not equate to an adverse impact. It says that an employee is not guaranteed to return to exactly the same situation upon returning to work after a medical leave, and that it is normal for businesses to evolve, and clients and co-workers to change. Spectrum says that Mr. Anderson’s pay was going to be maintained at the same level it was pre-leave, and that he was going to have access to at least the same number of hours he had before his leave.

[75] Additionally, Spectrum says that the doctrine of res judicata should be applied in this complaint to estop (prevent) Mr. Anderson from arguing he was adversely impacted because he was constructively dismissed. Spectrum says that the ESB has already determined Mr. Anderson was not constructively dismissed, and Mr. Anderson should not be permitted to relitigate that issue before the Tribunal.

[76] In his reply to Spectrum’s argument about res judicata , Mr. Anderson says the ESB does not have exclusive jurisdiction to determine the question of constructive dismissal, and that it was a separate proceeding under separate legislation for a different legal purpose. He further says the ESB does not have jurisdiction to apply the Code , so the Tribunal can still make a finding of constructive dismissal. Alternatively, he says that the loss of his opportunity to apply for the position was also an adverse impact that the Tribunal can consider.

[77] To prove adverse impact in the context of s. 13 of the Code , Mr. Anderson must demonstrate that he experienced an adverse job-related consequence. The parties do not dispute the essential facts in relation to this element. Both parties agree that what is essentially at issue is whether Spectrum’s conduct in reassigning Mr. Anderson from his pre-leave assignment working with SP to a new assignment , adversely impacted him within the meaning of the Code . Mr. Anderson describes this conduct as amounting to “constructive dismissal” and “loss of opportunity”, whereas Spectrum describes this conduct as a “change in a job”.

[78] I will first consider Spectrum’s argument about issue estoppel/ res judicata , then I will consider the full context of the assignment change to determine whether it and/or the loss of the opportunity to apply for the pre-leave assignment, amounts to an adverse impact within the meaning of the Code .

1. Res Judicata and Issue Estoppel

[79] First, I do not consider it appropriate to apply res judicata /issue estoppel to the analysis of adverse impact in this case. The parties provided minimal submissions on this question. For clarity, issue estoppel is a branch of res judicata . If the Tribunal finds that issue estoppel applies, then a matter will be res judicata , meaning it may not be relitigated by the same parties. For the purposes of this decision, I will consider the parties’ arguments in the context of whether issue estoppel applies.

[80] A key pre-condition to a finding of issue estoppel is that the same question has been decided: British Columbia (Workers’ Compensation Board) v. Figliola , 2011 SCC 52, at para. 27. In the ESB proceeding, the ESB was tasked with determining whether a “condition” of Mr. Anderson’s employment was “substantially altered” under s. 66 of the Employment Standards Act , such that the ESB could find that Mr. Anderson had been terminated from his employment and was entitled to compensation; that is, whether Mr. Anderson had been constructively dismissed. Although arising from the same set of facts, the question for the Tribunal when considering adverse impact is not focused on whether a condition of Mr. Anderson’s employment was substantially altered or whether he had been constructively dismissed. Instead, the Tribunal is focused on whether the change in Mr. Anderson’s assignment adversely impacted him in a human rights context. The focus is the impact on Mr. Anderson, and not on the terms and conditions of his employment. Ultimately, I find the question before this Tribunal in relation to adverse impact is different than the question before the ESB, and engages different considerations, and I decline to make a finding that issue estoppel applies.

[81] Next, I move on to consider whether Spectrum’s conduct in reassigning Mr. Anderson from his pre-leave assignment working with SP adversely impacted him within the meaning of the Code .

2. Did the Reassignment Amount to an Adverse Impact?

[82] For the following reasons, I find that Spectrum’s decision to reassign Mr. Anderson from his pre-leave position working with SP, including its failure to advise him about the posting and offer him a chance to apply for it, adversely impacted him in his employment.

[83] The language of s. 13 of the Code indicates that the following types of adverse treatment may ground a claim of discrimination in employment: refusal to employ a person, refusal to continue to employ a person, adverse treatment regarding “employment”, and/or adverse treatment regarding “any term or condition of employment”: Clarke v. City of Vancouver and another , 2024 BCHRT 298, at para. 63. In the present case, Spectrum did not refuse to employ or to continue to employ Mr. Anderson, but it did change his assignment.

[84] Spectrum argues that Mr. Anderson was not adversely affected by the change but, in my view, its arguments about the potential adverse impact associated with the change in assignment conflate the analysis of the employer’s duty to accommodate with the analysis of adverse impact. With respect to Spectrum’s arguments about the explanation for the change in the original assignment and what it says were the reasonable and practical steps it took to provide Mr. Anderson with a comparable alternative assignment, I consider these questions in the context of Spectrum’s duty to accommodate Mr. Anderson. Considering these arguments at the adverse impact stage of the analysis could have the practical effect of diluting an employer’s obligation to prove they met their duty to accommodate a person’s employment following a Code -protected leave. That is because an employer could justify a unilateral change in an employee’s position, connected to the protected characteristic, without having to demonstrate it met the elements of the test for bona fide occupational requirement.

[85] Spectrum did not provide any case law supporting its position that the change in position upon return from disability-leave is not an adverse impact. I accept that in some circumstances, it might not be. However, typically, if an employer makes a unilateral change to an employee’s position while they are away on medical leave and the employee explains why they preferred their original position, that will be enough to demonstrate an adverse impact for the purposes of the Code : LaFleche v. NLFD Auto Ltd. dba Prince George Ford , 2020 BCHRT 207, at para. 40; LaFleche v. NLFD Auto dba Prince George Ford (No. 2) , 2022 BCHRT 88, at para. 49-50; Mah v. Gateway Casinos & Entertainment , 2019 BCHRT 152, at para 61. Even in cases where the change in position may technically amount to a promotion, this Tribunal has held that the subjective view of the employee as to their desire to remain in their original position, including factors such as family obligations and scheduling requirements, can demonstrate that they were adversely impacted in a term or condition of employment Vyas v. 7-Eleven Canada Inc. , 2023 BCHRT 178, at para 41.

[86] This case is similar to the situation in United Nurses of Alberta, Local 301 v Alberta Health Services , 2021 CanLII 56913 (AB GAA) [ United Nurses ], where the adjudicator found that a change to a nurse’s assigned schedule (“line”) following a maternity leave, amounted to an adverse impact in a human rights context. In United Nurses , the employer argued there was no entitlement for the nurse to return to a particular line, and that they did not change her position, only her schedule. The adjudicator rejected this argument and found that the change in the schedule amounted to an adverse impact because the original schedule met the nurse’s childcare needs and coordinated well with her husband’s schedule, she knew and worked well with the other nurses on that schedule, and she had chosen that schedule through her seniority rights.

[87] In the present case, Mr. Anderson had worked at Spectrum for approximately 13 years before moving into his CSW4 position with SP. He had a high level of seniority at Spectrum, and had chosen to obtain the position with SP and remain in it for approximately 4 years. I accept Mr. Anderson’s evidence that his pre-leave position working with SP was convenient for him because it was close to his home and allowed him to meet his family obligations (e.g. picking up his daughter from school). I further accept his evidence that he felt he was a good match with SP, and was unsure as to whether he would be a good match for the other clients in the proposed assignment. Whereas the proposed assignment may have ended up meeting some or all of Mr. Anderson’s needs, and he may have ended up being a good match for the clients, I accept that Mr. Anderson was distressed by the uncertainty of whether the new assignment would be suitable for him. While I accept Spectrum’s evidence that it did not change Mr. Anderson’s classification as a CSW4 in its proposed new assignment, the reality of the situation is that it changed Mr. Anderson’s pre-leave assignment from the one that worked for his schedule, allowed him to meet family obligations, and was a good fit for him client-wise, to one that he was unfamiliar with and uncertain about. This change in Mr. Anderson’s pre-leave assignment working with SP amounted to a significant unilateral change that Mr. Anderson did not agree with, and I find it adversely impacted him in his employment.

[88] Mr. Anderson was also adversely impacted when Spectrum posted his pre-leave position and did not tell him about the posting or allow him to apply. It is clear from the timeline of events that Spectrum posted Mr. Anderson’s pre-leave position on August 10. The posting was open for 7 days, and closed August 17. As of August 13, Mr. Anderson had formally advised Spectrum that he was fit to return to work, and had provided a doctor’s note in support. However, Mr. Anderson testified that it was not until August 17 that he discovered his job had been posted and filled. The parties do not dispute that Spectrum never offered Mr. Anderson the opportunity to apply for the position; despite the posting being live when Mr. Anderson advised he could return to work, and despite knowing Mr. Anderson wanted to return to his former position.

[89] Ms. Holmes testified that Mr. Anderson would have been qualified for the position but by the time Mr. Anderson advised he was cleared to return to work, Spectrum had already made the decision to fill the position with staff members who had been working with SP while Mr. Anderson was away. She and Mr. Newman testified that the posting was just a “formality”. However, whether characterized as a “formality” or not, the evidence demonstrates the position was posted as open for internal applicants, and internal employees applied for and were successful in attaining the position. The evidence also demonstrates that Mr. Anderson was not offered the opportunity to apply for the posting or even know about it until it was too late for him to apply. It is clear from Mr. Anderson’s evidence that he would have applied to work with SP in his pre-leave position had he been permitted to do so.

[90] Again, while it may be that the proposed assignment Spectrum offered would have been as favourable as his pre-leave position with SP, Mr. Anderson’s inability to choose for himself whether to compete for his pre-leave position, adversely impacted his ability to access his employment on equal terms with other Spectrum employees who were permitted to compete for the position.

[91] Ultimately, the adverse impact on Mr. Anderson of not being able to apply for his former position is part and parcel of how he was adversely impacted by Spectrum’s broader decision to reassign him to a new position. As such, I will move on to consider whether Mr. Anderson has demonstrated a connection between his illness and Spectrum’s reassignment of his pre-leave position.

C. Connection Between Disability and Reassignment from Pre-Leave Position

[92] I find that Mr. Anderson has proved a connection between his disability and the adverse impacts he experienced. For the reasons that follow, I do not find his disability was a factor in Spectrum’s decision-making, but I do find an obvious connection between his disability-related leave, and therefore his disability, and the adverse impacts. I first consider Spectrum’s decision-making.

[93] This Tribunal has recognized that parties rarely announce discrimination on the basis of a protected characteristic, and such discrimination must often be established by reasonable inferences drawn from surrounding circumstances: Complainant v. College of Physicians and Surgeons of BC (No. 2), 2018 BCHRT 189, at para. 96. An inference of discrimination may arise “where the evidence offered in support of it renders such an inference more probable than the other possible inferences or hypotheses”: Vestad v. Seashell Ventures Inc . , 2001 BCHRT 38 at para. 44; Campbell v. Vancouver Police Board (No. 4) , 2019 BCHRT 275, at para. 103.

[94] Spectrum explains that it reassigned Mr. Anderson from his pre-leave position and did not advise him of the job posting because it considered that it would not be in SP’s best interests to disrupt his current living and care situation to reintegrate Mr. Anderson into the care team.

[95] Mr. Anderson argues that Spectrum’s explanation for not offering him his job back or allowing him to compete for it, is unreasonable and unbelievable. As a result, he says that the Tribunal ought to infer Spectrum’s decision was discriminatory. In particular, he argues Spectrum’s explanation should not be believed because:

i. Mr. Anderson had worked with SP for a number of years and was able to manage his complex and challenging needs;

ii. Ms. Holmes confirmed Mr. Anderson met the qualifications for the job posting;

iii. There was no discussion with SP about whether he would like to work with Mr. Anderson;

iv. When Mr. Anderson told Spectrum he was cleared to return to work, there were still four days left on the job posting and the two candidates who interviewed for the position did so after August 10;

v. There was no reason to think Mr. Anderson could not learn and adopt the new COVID-19 protocols; and

vi. Spectrum was dishonest with its own employees by having a policy stating when and how new positions or vacancies will be posted and filled, but treating the posting for SP merely as a “formality”.

[96] Spectrum counters that it is clear that the decision not to return Mr. Anderson to work with SP was based on SP’s complex care needs and Spectrum’s desire to do what it thought was best for SP. Further, it says Mr. Anderson has not explained any connection between his illness and Spectrum’s conduct. It says if Spectrum had been motivated not to give Mr. Anderson his position with SP because of Mr. Anderson’s illness, then it could have posted Mr. Anderson’s position sooner. Further, it would make little sense for Spectrum to maintain Mr. Anderson’s pay and propose alternative assignments if Mr. Anderson’s illness had impacted Spectrum’s decision to reassign SP’s care.

[97] Mr. Anderson’s arguments about how his illness was connected to Spectrum’s decision to reassign his pre-leave position allege direct discrimination. That is, he essentially submits that Spectrum’s stated reasons for the reassignment are not genuine, and it reassigned him because he became disabled and was required to take a medical leave.

[98] However, Mr. Anderson does not explain how his illness relates to any of his above arguments which seek to undermine Spectrum’s stated reasons for reassigning his position. Through his arguments, Mr. Anderson asks the Tribunal to infer that Spectrum did not reassign SP’s care for reasons related to SP’s best interests, and as such, the reassignment must have been because of/related to Mr. Anderson’s illness. I do not accept this line of reasoning.

[99] Beyond challenging Spectrum’s rationale for the reassignment, Mr. Anderson does not put forward any alternative theory for why Spectrum would have reassigned him from SP’s care to work with other Spectrum clients at the same rate of pay and under what appear to be similar or comparable working conditions. He does not identify what it was about his illness that he says Spectrum was reacting to by reassigning him and preventing him from applying for his pre-leave position. Further, he has not provided any evidence that demonstrates that Spectrum’s decision to reassign Mr. Anderson and prevent him from applying for his pre-leave position was impacted by some kind of stereotypical view or negative bias connected to his illness. On the contrary, the evidence is clear that throughout his period of illness Spectrum supported Mr. Anderson to take the full amount of time off he needed, checked in with him regularly, and was prepared to accept him back to working full duties at his same level of pay and under what appear to be similar or comparable working conditions when his illness had resolved.

[100] Additionally, Mr. Anderson’s evidence and arguments which seek to undermine Spectrum’s rationale for the reassignment, do not persuade me that I should discount Spectrum’s evidence on this point. At the hearing, Ms. Holmes testified that SP had been cared for by the same team members throughout Mr. Anderson’s leave, and SP’s care team, as well as his parents, felt that it was very important to minimize disruptions and changes to SP’s life by adding any new people into his life. Ms. Holmes further testified that over the months that Mr. Anderson had been absent from the workplace, many of Spectrum’s working conditions and policies had changed as a result of the COVID-19 pandemic. She testified that Mr. Anderson was going to require a substantial re-orientation to the workplace in order to ensure he would understand and be able to follow all of the new policies and protocols. Mr. Anderson acknowledges in his submissions that there was no issue with Ms. Holmes’ credibility in the evidence she provided at the hearing. Further, although Mr. Anderson argues he would have been able to adapt to all of the new COVID-19 protocols, and that he had worked successfully with SP in the past, his evidence did not address Spectrum’s concerns about disruption to SP in having to re-introduce him to SP’s life and re-orient him to how the new protocols operated with respect to SP specifically. Mr. Anderson’s own evidence at the hearing was that stability, consistency, and routine, were very important to SP.

[101] Mr. Newman provided similar testimony to Ms. Holmes. He said that prior to Mr. Anderson returning to work, he had conversations with his manager SW about the care situation that would be in SP’s best interests. He said that together they determined that placing Mr. Anderson back into his former position after he had been gone so long, and after other staff had finally stabilized SP’s care, would not have been in SP’s best interests. In particular, he testified that after the onset of the COVID-19 pandemic, all staff were required to wear masks in client’s homes, and SP had a very difficult time adjusting to this (and other COVID-19 related changes), which resulted in him sometimes becoming violent and grabbing masks off workers’ faces. Mr. Newman testified that it took quite a lot of work with the team, and with SP’s parents, to stabilize SP with the new COVID-19 protocols, and that to change anything in his routine around the time Mr. Anderson intended to return to work, would have compromised that stability. Again, Mr. Anderson agrees in his submissions that there were no serious issues with Mr. Newman’s credibility in relation to the evidence he provided at the hearing.

[102] Ultimately, I accept Spectrum’s evidence about its reasons for reassigning Mr. Anderson and not advising him that the position with SP had been posted. However, that does not end the analysis. Intent is not a pre-requisite of discrimination: Code , s. 2. Spectrum’s stated reasons for reassigning Mr. Anderson from his pre-leave position are based on the timing of his medical leave and the length of time he had been away from work. Given that the timing and length of Mr. Anderson’s leave were due to his illness, I find it is plain that there is an indirect connection between Mr. Anderson’s illness and the decision to reassign him.

[103] Mr. Anderson did not argue an indirect connection between his disability and the decision to reassign him from his pre-leave position. Namely, he did not argue that because his disability was the reason he took a lengthy medical leave, and because Spectrum reassigned him at least in part because of the length of time he had been away, he has demonstrated the requisite connection between adverse impact and protected characteristic. However, I have decided to address the indirect connection in any event.

[104] First, it is plain on the facts of this case that there was an indirect connection between Mr. Anderson’s disability and the decision to reassign him. Second, there is no prejudice to the parties in proceeding as I have. I have considered all the parties’ arguments in the context of the justification defence. Ultimately, I have decided that Mr. Anderson proved the elements of his case but that Spectrum justified its decision to reassign Mr. Anderson from his pre-leave position. This decision does not turn on who bears the burden of proof, so structuring the analysis this way does not change the outcome of the decision.

[105] For the above reasons, I find Mr. Anderson has proved the elements of his complaint, and the burden now shifts to Spectrum to prove its decision to reassign Mr. Anderson from his pre-leave position was justified.

D. JUSTIFICATION

[106] To justify its conduct in reassigning Mr. Anderson from his pre-leave position with SP, Spectrum must meet the following criteria set out in British Columbia (Public Service Employee Relations Commission) v. BCGSEU , 1999 CanLII 652 (SCC), [1999] 3 SCR 3 [ Meiorin ], at para. 54:

i. Spectrum reassigned Mr. Anderson from his pre-leave position for a purpose rationally connected to the performance of the job;

ii. Spectrum did so in an honest and good faith belief that it was necessary to the fulfillment of that work-related purpose; and

iii. The decision was reasonably necessary to the accomplishment of that legitimate work-related purpose. To show that the decision was reasonably necessary, Spectrum must demonstrate it accommodated Mr. Anderson to the point of undue hardship.

[107] In the present case, the conduct at issue was Spectrum’s decision to reassign Mr. Anderson from his position caring for SP, to a new position caring for three other Spectrum clients. The reason Spectrum gave for this was that it was not in the best interests of SP to disrupt his stable routine by re-integrating Mr. Anderson back into the care team after a lengthy absence, during which time it had been difficult to stabilize SP with his new care team.

1. Rational Connection and Good Faith

[108] The evidence before me at the hearing was that Spectrum did individualized assessments of its clients to determine each individual’s best interests. Ms. Holmes’ evidence about SP was that he had higher complex support needs as compared to other Spectrum clients, including the three clients Spectrum included in Mr. Anderson’s proposed assignment. It is evident that Spectrum made client assignments based primarily on the best interests of each client. To the extent that Mr. Anderson disputed that this was the basis for the decision to reassign him, I have already rejected this argument. Spectrum was focused on SP’s best interests.

[109] In my view, Spectrum made the decision to reassign Mr. Anderson for a purpose that is rationally connected to the performance of the work of a community support worker, and in an honest and good faith belief it was necessary to the fulfillment of that purpose.

[110] The evidence at the hearing was that the nature of the work of a community support worker at Spectrum involves caring for vulnerable clients with different personalities, different impairments, and various levels of self-sufficiency. Further, care and support of these clients is done in their home as well as in the community, and often involves close personal contact and personal care, such as helping a client use the toilet or brush their teeth. Spectrum clients are a diverse group of people, some of whom are significantly impaired in their ability to perform the daily functions of life. Some of these people, including SP, required a high level of care from caregivers who possess specific skill-sets and training, such as the MANDT (training to reduce workplace violence) certification that was required to be able to care for SP.

[111] In my view, Spectrum made the decision to reassign Mr. Anderson consistently with its focus on the best interests of individual Spectrum clients when deciding on job assignments, and for the purpose of ensuring Spectrum clients and caregivers were well matched, and that the caregiving relationship would be successful. It is clear to me that ensuring Spectrum clients and caregivers are well matched and that the caregiving relationship will be successful is rationally connected to the performance of the work of a community support worker.

[112] Further, it is clear to me that Spectrum made the decision to reassign Mr. Anderson in an honest, and good faith, belief that it was necessary to ensure Spectrum clients – in this case SP – and caregivers were well matched, and that the caregiving relationship would be successful.

[113] Both Spectrum’s witnesses and Mr. Anderson gave evidence about the importance of considering individual care needs and what is in the best interests of the client when making decisions about client care, including when deciding whether a particular community support worker would be a good match for an individual client. Mr. Anderson testified that one of the reasons he was upset when he discovered he was being reassigned was because he was one of the few people who had success working with SP, and he was well matched to perform that work when others were not. Ms. Holmes testified that Spectrum’s typical “match-making” process to pair support workers with clients was “person-centred”. She explained that Spectrum human resources coordinates with the frontline managers and directors to ensure a potential match between a support worker and a client makes sense and will be successful. She said that Spectrum “is not an organization that just plunks people in because of a vacancy”. Mr. Newman similarly testified that Spectrum looks for the “best match for a person” when considering matching community support workers with clients.

[114] Ultimately, there is no evidence before me which suggests that Spectrum decided to assign new support workers to SP after Mr. Anderson’s leave in anything but an honest and good faith belief that it was in SP’s best interests.

[115] What remains to be decided is whether the decision to reassign Mr. Anderson in this case was reasonably necessary to ensure that SP’s and his caregivers would be well-matched and the caregiving relationship would be successful. This requires me to consider whether Spectrum accommodated Mr. Anderson to the point of undue hardship.

2. Did Spectrum meet its duty to accommodate Mr. Anderson?

[116] For the reasons I have already provided with respect to Mr. Anderson’s allegation of direct discrimination, I accept that Spectrum reassigned Mr. Anderson from caring for SP because it felt it would not be in SP’s best interests to have Mr. Anderson re-integrate into the care team. The evidence demonstrates that it was SP’s specific needs, viewed in the context of the length of time Mr. Anderson had been away and what had gone on in relation to COVID-19 in the meanwhile, that governed the decision-making concerning his reassignment.

[117] Earlier in this decision, I considered Mr. Anderson’s arguments about why he said (or implied) Spectrum’s stated reasons for reassigning him were disingenuous, and I disagreed with his arguments. The evidence demonstrates that SP was a highly vulnerable individual who required stability and consistency in his life, and that Spectrum was solely focused on SP’s best interests when it made the decision to reassign Mr. Anderson. Given this context, I find it was reasonably necessary for Spectrum to have reassigned Mr. Anderson from his pre-leave position. Spectrum could not have reasonably met its purpose in relation to meeting SP’s needs had it placed Mr. Anderson back into SP’s care team. In other words, it would have amounted to undue hardship to have done so.

[118] I further find that the new assignment that Spectrum proposed for Mr. Anderson in lieu of his pre-leave position was a reasonable accommodation that was equivalent in terms of salary and hours, and was specifically tailored to meet the needs he expressed to Spectrum at the August 17 meeting.

[119] Ms. Holmes testified that in deciding on the new assignment, Spectrum carefully considered the concerns that Mr. Anderson raised during the August 17 meeting, including his concerns about proximity to work and family obligations. She further testified, and the documents demonstrate, that the new assignment had slightly more hours than his previous assignment with SP, and that it was mostly day shifts. On the issue of rate of pay, both Ms. Holmes and Mr. Newman testified that Mr. Anderson was going to keep his CSW4 rate of pay for the new assignment.

[120] Again, Mr. Anderson concedes in his submissions that their evidence was credible.

[121] With respect to the proposed assignment, I accept Spectrum’s evidence that Mr. Anderson’s income was not going to decrease. He was going to be paid at the same rate as his pre-leave position, and was going to be assigned more hours than in his pre-leave position. Further, during the eight-week period where Spectrum was setting up the “meet and greets” and re-orienting Mr. Anderson, it was going to pay him his full salary so that he would not lose any money if he did not work his full-time hours. I pause here to note that Spectrum used the language of “working notice” to describe how Mr. Anderson would be paid for the 8-week period. Neither party referred to this language in their submissions, and I do not understand it to be a point of dispute, so have not considered it further.

[122] In addition to maintaining his rate of pay and providing him with slightly more hours, I accept that Spectrum chose clients for Mr. Anderson that were all located within his area, and that it proposed to assign him shifts which were mostly day shifts which were intended to assist him to meet his family obligations. I note that the proposed assignment included one client assignment which was meant to be temporary. However, Spectrum acknowledged the temporary nature of that part of the assignment and advised in the August 25 letter, “[d]ue to the position with C.C. being a temporary assignment until December approximately, we will continue to explore other options to replace those displaced hours”.

[123] While it is possible that the proximity to his work, the specific hours, or the specific clients may have ended up being less desirable to Mr. Anderson than in his pre-leave position, the reality is that he refused to try the new assignment or discuss it with Spectrum, so it remains unknown what the impact on him would have been.

[124] It is trite law that the search for a reasonable accommodation requires the participation of both an employer and an employee, and if an employer makes a proposal for an accommodation that is reasonable and would, if accepted, fulfill the duty to accommodate, an employee has a duty to facilitate the implementation of the proposal. Similarly, an employee in need of accommodation cannot expect a perfect solution, and if an employee turns down a reasonable proposal, then an employer’s duty will be discharged: Central Okanagan School District No. 23 v. Renaud , 1992 CanLII 81 (SCC), [1992] 2 S.C.R. 970.

[125] In the present case, Mr. Anderson claimed he was constructively dismissed and on that basis refused to engage in discussions about the proposed new assignment, or to schedule the “meet and greets” to determine if he would be a good match for the new clients. I do not accept this argument.

[126] The evidence before me demonstrates that the proposed assignment was specially tailored to accommodate Mr. Anderson’s stated requests and to best match his pre-leave assignment with SP. On its face, it was a reasonable alternative to his pre-leave assignment with SP which would have discharged Spectrum’s duty to accommodate Mr. Anderson. While it is possible that it may have turned out to be inadequate from Mr. Anderson’s perspective, that is something that cannot be known because Mr. Anderson refused to consider the assignment and therefore frustrated the accommodation process.

[127] I understand that Mr. Anderson did not accept Spectrum’s decision to reassign him on his return from leave. However, I have accepted Spectrum’s evidence about its reasons for the reassignment in the best interests of SP and that Spectrum offered Mr. Anderson a reasonable alternative to his previous assignment with SP.

[128] Accordingly, I find Spectrum discharged its duty to accommodate Mr. Anderson, and has justified its conduct in reassigning him from his pre-leave assignment with SP. There is no discrimination.

IV CONCLUSION

[129] For the above reasons, I dismiss Mr. Anderson’s complaint.

Shannon Beckett

Tribunal Member