McRae v. City of Burnaby and others, 2025 BCHRT 88
Date Issued: April 9, 2025
File(s): CS-002828
Indexed as: McRae v. City of Burnaby and others, 2025 BCHRT 88
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:
Candace McRae
COMPLAINANT
AND:
City of Burnaby, Lambert Chu, Pat Tennant, and Marillian Rosas
RESPONDENTS
REASONS FOR DECISION
APPLICATION TO DISMISS A COMPLAINT
Section 27(1)(f)
Tribunal Member: Jonathan Chapnick
On her own behalf: Candace McRae
Counsel for Respondents: Gabrielle Scorer and Jennifer Hogan
I INTRODUCTION
[1] In late 2020 and early 2021, Candace McRae filed two overlapping human rights complaints regarding her employment with the City of Burnaby [ City ]. The Tribunal subsequently joined the complaints into a single proceeding.
[2] The complaint is against the City and three individuals: the City’s former city manager, Lambert Chu; the City’s former director of human resources, Pat Tennant; and a human resources advisor at the City, Marillian Rosas [collectively, Individual Respondents ]. Ms. McRae alleges discrimination in employment based on physical disability in contravention of s. 13 of the Human Rights Code . Her complaint relates to how the City and the Individual Respondents [collectively, Respondents ] treated her while she was on an extended medical leave. She alleges that they failed to accommodate her. She also alleges that they deprived her of certain benefits and entitlements during her leave.
[3] This decision is not about the merits of Ms. McRae’s complaint. Rather, it is about whether the complaint, or parts of it, should be dismissed without a hearing.
[4] The Respondents deny discriminating and apply to dismiss the complaint. They say the substance of the complaint has been appropriately dealt with in other proceedings, namely five grievance processes under the collective agreement between the City and the Canadian Union of Public Employees, Local 23 [ Union ]. On this basis, the Respondents say the Tribunal should dismiss the complaint in its entirety under s. 27(1)(f) of the Code .
[5] The Respondents also put forward an alternative basis for dismissal. They say that, if the entire complaint is not dismissed under s. 27(1)(f), the Tribunal should dismiss the complaint against the Individual Respondents under s. 27(1)(d)(ii) because proceeding against them would not further the purposes of the Code .
[6] For the reasons set out below, the Respondents’ dismissal application is granted in part. I am satisfied that the substance of two of the allegations in the complaint (one regarding vacation credits, the other regarding a special benefit) were appropriately dealt with in the grievance processes. Those parts of the complaint are dismissed under s. 27(1)(f). The remainder of the allegations will proceed to a hearing.
[7] I am also satisfied that it would not further the Code ’s purposes to proceed with the complaint against the Individual Respondents. The complaint against the Individual Respondents is dismissed under s. 27(1)(d)(ii).
[8] To make my decision, I have considered all the information filed by the parties. In my reasons I only refer to what is necessary to explain what I decided. I make no findings of fact related to the merits of the complaint.
II BACKGROUND
[9] The following information is drawn from the materials before me and is set out here as background. It is not meant to be an exhaustive summary of the information filed by the parties.
[10] Ms. McRae was hired by the City in 2013. Beginning in 2016, she was employed by the City as a full-time bylaw enforcement coordinator. Ms. McRae was a member of the Union. The terms and conditions of her employment were set out in a collective agreement between the City and the Union [ Collective Agreement ].
[11] Under the Collective Agreement, Ms. McRae had access to short-term sick leave benefits [ STSL ], medium-term disability benefits [ MTD ], and long-term disability benefits [ LTD ]. For an employee who qualifies, MTD expires 52 weeks after the date of disability, at which point LTD commences. These benefits and others were administered by the Burnaby Municipal Benefit Society [ Society ] in accordance with the Collective Agreement and the Society’s benefits plan document [ Plan Document ]. The Society is governed by a board of directors comprised of employer and union appointees.
[12] Since 2017, Ms. McRae has had vocal cord dysfunction and other physical health conditions, the symptoms of which include an impaired ability to speak. In August 2017, she went on sick leave due to her conditions and began receiving STSL. Ms. McRae subsequently transitioned to MTD, and was later approved for LTD in September 2018. Other than to briefly complete a task in November 2017, she never returned to work.
[13] Between June 2020 and May 2021, the Union filed grievances related to Ms. McRae’s circumstances, including five particular grievances. Ms. McRae was the named “grievor” on two of the five grievances. The other three grievances were filed by the Union on behalf of a class of members. Those types of grievances are called “policy grievances.”
[14] Under the Collective Agreement, grievances follow a five-step process. A grievance is initiated at Step 1. At Step 2, a grievance form is completed and the City provides a written response. At Step 3, the grievance is referred to a committee comprised of a Union representative and a City appointee [ Grievance Committee ]. If the Grievance Committee is unable to resolve the grievance, the process moves to Step 4. At Step 4, the Union refers the matter to the City’s city manager, who is tasked with providing a written response to the parties’ submissions. If the grievance is not resolved at Step 4, it moves on to Step 5, which involves referral to arbitration.
[15] The following is background information regarding the five grievances.
A. Increment and Vacation Grievance
[16] The Collective Agreement sets out pay grids for employees. It also provides for advancement along the grids, one increment at a time, every six to 12 months, until the employee reaches the maximum pay rate. Each advancement, or “increment increase,” amounts to a pay increase. In fall 2019, Ms. McRae emailed Ms. Rosas to ask why she had not received her most recent increment increase. Ms. Rosas responded that it was the City’s long-standing practice that employees on LTD are not entitled to increment increases, because they are not performing work duties. She said employees on STSL and MTD are, however, entitled to increment increases.
[17] Ms. McRae replied to Ms. Rosas in an email on November 6, 2019. She asserted that the City’s practice was not stipulated in the Collective Agreement and suggested it amounted to the City “arbitrarily deciding to vacate an employee’s contracted negotiated wage increments … on the sole basis that they are disabled for longer than 52 weeks.” She asserted that no collective agreement or “Plan Document can permit or allow for any employer, including the City, to discriminate against its employees on the basis of their disability, or the length of said disability.” Ms. McRae says Ms. Rosas never responded to this email.
[18] Ms. McRae sent a follow-up email on March 4, 2020. She says the City never responded.
[19] On June 2, 2020, the Union filed a grievance (number 2020-09) regarding increment increases and other matters, including vacation entitlements [ Increment and Vacation Grievance ]. On the grievance form, the Union asserted that Ms. McRae had been “discriminated against due to [her] disability” and the City was depriving her of her contractual entitlements. The remedy sought was for Ms. McRae to “be made fully whole.”
[20] On September 9, 2020, the Grievance Committee issued a letter to Ms. McRae regarding the grievance. The letter stated that the Union had raised three issues in relation to the grievance: the increment increase issue; an issue regarding the entitlement to vacation credits while on LTD; and an issue regarding pension contributions. I will return to the pension contribution issue in my decision below. For now, I will only address the increment and vacation issues.
1. Increment increase issue
[21] In its letter, the Grievance Committee set out the City’s position regarding increment increases while on LTD, which was that LTD payments were indexed to general wage increases, and there was no language in the Collective Agreement entitling an employee to increment increases while on LTD. The committee stated that, following its Step 3 discussions, the Union agreed that Ms. McRae was not entitled to increment increases while on LTD.
[22] The Union did not pursue this issue any further in the grievance process.
2. Vacation credits issue
[23] The Collective Agreement stipulates that full-time employees are entitled to paid vacation days. Depending on an employee’s length of service, they receive a certain number of paid vacation day credits each year, as set out in Article 8.1.1(a) to (e).
[24] In its letter, the Grievance Committee indicated that the parties disagreed over whether Ms. McRae was entitled to receive paid vacation day credits while on LTD. The vacation credits issue was not resolved at Step 3 or Step 4, and was scheduled for an arbitration hearing. However, before the hearing, the Union and the City resolved the issue by agreement, and the Union withdrew the Increment and Vacation Grievance in exchange for a with prejudice letter from the City, dated April 22, 2021, which confirmed that:
1. The City’s practice is that it does not adjust an employee’s calendar years of service upon their return to work following an LTD leave. As a result, an employee’s progression [in terms of the number of paid vacation day credits they are entitled to each year based on their length of service under Article 8.1.1] is not delayed as a result of an absence on LTD leave.
2. If Ms. McRae returns to work from LTD, her annual vacation entitlements will be in accordance with this practice.
[25] I will refer to this as the Article 8.1.1 Letter .
[26] On April 29, 2021, the Union’s lawyer emailed Ms. McRae to advise that the Union had settled the Increment and Vacation Grievance in exchange for the Article 8.1.1 Letter. The lawyer noted that the Union still had an active “policy grievance dealing [with] the full package of vacation entitlements for employees on LTD.” I will describe the policy grievance next.
B. Vacation Policy Grievance
[27] The Union filed a policy grievance (number 2021-07) regarding the vacation credits issue on February 17, 2021 [ Vacation Policy Grievance ]. On the grievance form, the Union asserted that the City had “denied employees on [LTD] their vacation entitlements” in violation of both the Collective Agreement and the Code . The remedy sought was that “all employees who are currently on LTD or who were on LTD between December 31, 2015, and current day, be made whole.”
[28] The City’s position was that employees on LTD were not entitled to receive vacation credits under the Collective Agreement. In her evidence to the Tribunal, the City’s current director of labour relations (who was formerly the assistant director of labour relations, and who I will refer to as J.C. in this decision) says the City’s long-standing practice had been to deny these credits to LTD recipients based on the language of the Plan Document.
[29] On March 17, 2021, the Grievance Committee issued a letter to the Union about the parties’ discussions regarding the Vacation Policy Grievance. In the letter, the committee set out another aspect of the City’s position, which was that “LTD is an insurance benefit and there are bona fide reasons for setting limits to vacation accrual,” and that the Code “provides an explicit exemption under section 13(3)(b) for insurance plans.”
[30] On May 12, 2021, the Union referred the Vacation Policy Grievance to arbitration. However, before the hearing, the parties settled the grievance. The terms of the settlement are set out in a settlement agreement between the Union and the City, dated September 9, 2022 [ Vacation Settlement Agreement ].
[31] Under the Vacation Settlement Agreement, the Union agreed to withdraw the Vacation Policy Grievance, and the City agreed that, going forward and retroactive to January 1, 2020, employees on LTD were entitled to receive vacation credits under the Collective Agreement. The terms of the settlement agreement included the following:
The Union, on behalf of itself and its member employees, releases the City … from all manner of actions, grievances, claims and complaints that the Union or its members may have to the date of execution of this Settlement Agreement that are directly or indirectly related to, or associated with, the Grievance, or subject matter of the Grievance, including, without limitation, claims or complaints under … the B.C. Human Rights Code … .
The Parties agree that this settlement represents a negotiated compromise of disputed claims and is not an admission of any wrongdoing, fault, or liability by any of the Parties.
The Parties acknowledge that the terms set out in this Settlement Agreement are in full and final satisfaction of all claims, rights, or compensation of any kind the Parties may have arising from the Grievance.
[32] On November 29, 2022, the City wrote to Ms. McRae to advise that the City had changed its vacation credits practice for employees on LTD, and that it would retroactively pay Ms. McRae her vacation credits for 2020 and 2021. An earnings statement for Ms. McRae, dated December 9, 2022, shows a “Misc Pay Adjustment” in the gross amount of $10,802.28. Ms. McRae does not dispute the accuracy of her earnings statement or that she received a retroactive payment. However, she claims she “received less than $4,000 in retro pay for [her] 2020 and 2021 vacation entitlements” (emphasis in original).
C. Special Benefit Policy Grievance
[33] Article 7.4 of the Collective Agreement requires the City to pay full-time employees who have completed their probation an extra 1.5% on top of their basic monthly salary. The parties to the Collective Agreement refer to this as the Special Benefit .
[34] On January 26, 2021, the Union filed a policy grievance (number 2021-03) regarding the Special Benefit [ Special Benefit Policy Grievance ]. On the grievance form, the Union asserted that the City had violated the Collective Agreement by failing to include the Special Benefit in its calculation of MTD, LTD, and other entitlements. As a remedy, the Union requested that all employees “eligible for the … Special Benefit and who have received or are currently in receipt of the Entitlements … be made whole retroactive to the beginning of the current Collective Agreement.”
[35] In its Step 2 response to the Special Benefit Policy Grievance, the City stated that the Special Benefit was, in fact, included “in the calculation of all entitlements” – “other than Long Term Disability.” The City said that its practice of not including the Special Benefit in calculating LTD was in accordance with the Collective Agreement and the Plan Document.
[36] On March 1, 2021, the Grievance Committee issued a letter to the Union about the parties’ discussions regarding the Special Benefit Policy Grievance. In the letter, the committee noted the Union’s position that different pay rates for employees on LTD “could be seen as discriminatory.” Similarly, in its Step 4 submission to the city manager in June 2021, the Union asserted that the City’s practice was likely discriminatory. The Union went on to demand “that the City immediately begin including the … Special Benefit in the calculation of LTD … and make all employees who should have received this benefit … whole retroactive to January 1, 2016 (the beginning of the current term of the Collective Agreements).” For its part, the City continued to stand by its practice at Step 4, and added that the “LTD benefits the City provides are part of a legitimate plan, adopted in good faith, and … would fall within the exemption for bona fide plans under the Code .”
[37] The Union subsequently advanced the Special Benefit Policy Grievance to arbitration. However, before the hearing, the parties settled the grievance. The terms of the settlement are set out in a settlement agreement between the Union and the City, dated June 30, 2022 [ Special Benefit Settlement Agreement ].
[38] Under the Special Benefit Settlement Agreement, the Union agreed to withdraw the Special Benefit Policy Grievance, and the City agreed that, going forward and retroactive to January 26, 2021 (i.e., the date the grievance was filed), it would include the Special Benefit in its calculation of LTD. The terms of the settlement agreement included the following:
The Parties agree that this is a negotiated compromise of disputed claims, and not an admission of any wrongdoing, fault or liability by any of the Parties.
The Parties acknowledge that the terms set out in the Settlement Agreement are in full and final satisfaction of all claims, rights or compensation of any kind the parties may have arising from the Grievance.
[39] J.C. says Ms. McRae received a retroactive payment under the Special Benefit Settlement Agreement, and the City included the Special Benefit in the calculation of her LTD going forward. An earnings statement for Ms. McRae, dated September 2, 2022, shows a retroactive LTD payment in the gross amount of $627.90.
D. Accommodation Grievance
[40] In early September 2020, the Society’s claims adjudicator told Ms. McRae that she was not approved for LTD past September 13. Ms. McRae appealed this decision and was subsequently provided with certain temporary extensions of her benefits.
[41] In a September 14, 2020 email to representatives of the Union and the City, Ms. McRae provided certain medical information. She says the City never responded to this email.
[42] On September 18, 2020, Ms. McRae attended a meeting with representatives from the Union and the City, including Ms. Rosas and J.C., who was the assistant director of labour relations at the time. The stated purpose of the meeting was to discuss the process for Ms. McRae’s return to work. I will refer to this meeting as the RTW Meeting .
[43] In their submissions to the Tribunal, the parties describe the RTW Meeting differently. For the purposes of this decision, I will briefly describe parts of Ms. McRae’s version of events.
[44] Among other things, Ms. McRae says that, at the meeting, Ms. Rosas indicated that the City knew nothing about her disability, other than what was stated on a “Permanent Restrictions” form, which Ms. McRae had not seen before the meeting. The form stated that Ms. McRae was cleared to return to work, subject to only one permanent restriction: “Should not be required to speak except for emergency situations.” Ms. McRae says the form did not reflect the various limitations and restrictions repeatedly put forward by her healthcare providers, and did not include their key recommendation that she work remotely. She says that, at the meeting, the City asked for additional medical information, even though she had already provided detailed information on various occasions dating back to her first request for accommodation in September 2019. She says the City offered to temporarily accommodate her with transitional duties in a clerk position that was not suitable given her various limitations and restrictions. Ms. McRae says Ms. Rosas made disparaging and offensive remarks at the RTW Meeting. She says she remembers feeling humiliated and panicked by how the meeting went.
[45] On September 22, 2020, the Union filed a grievance (number 2020-23), alleging that the City had “failed in their Duty to Accommodate,” and requesting that Ms. McRae “be made fully whole” [ Accommodation Grievance ]. In its Step 2 response, the City stated that it had “fulfilled its duty to accommodate Ms. McRae by offering transitional duties,” and that its request for further medical information did not contravene the Collective Agreement.
[46] On September 28, Ms. McRae emailed certain medical information to Ms. Rosas and Ms. Tennant. She says Ms. Tennant did not acknowledge or confirm receipt of this medical information.
[47] On December 7, 2020, the Union outlined its position in the Accommodation Grievance in its Step 4 submission to Mr. Chu, who was the city manager at the time. The Union asserted that the City had failed to accommodate Ms. McRae and that, in failing to do so, had “acted in an abusive and demeaning manner meant to humiliate and belittle her.” The Union said the City could reasonably accommodate Ms. McRae by permitting her to work from home, and any return-to-work offer that involved working on City premises was not in keeping with the information from her healthcare providers. It said the City was continuing to delay the return-to-work process by requiring further medical information. The Union demanded that the City “immediately agree to an accommodation of Ms. McRae,” otherwise it would move the grievance to arbitration and seek damages “for the humiliation and emotional pain” caused to her.
[48] The City also made detailed submissions at Step 4 of the grievance process. It said it had a number of outstanding questions related to Ms. McRae’s return to work, which required answers from a medical professional. It said it could not safely return Ms. McRae to work without further information regarding her restrictions and limitations. The City asserted that it had not failed to accommodate Ms. McRae. It said it had “worked collaboratively with the Union to attempt to gather the medical information it [required] to start the accommodation process.”
[49] On December 30, 2020, Mr. Chu wrote to the Union to advise of his decision at Step 4. He said he did not agree with the Union’s claims that the City had failed to accommodate Ms. McRae and had acted in an abusive and demeaning manner. He concluded that Ms. McRae was required to “take the next step and give consent to the City to conduct the necessary medical review and to confirm work restrictions and accommodation options.”
[50] Ms. McRae’s LTD ceased after January 3, 2021, at which point J.C. says the City placed Ms. McRae on “paid administrative leave (100% of her salary) effective January 4, 2021, pending ongoing discussions with the Union concerning the Accommodation Grievance.”
[51] On January 12, 2021, the Union filed a separate grievance (2021-02) regarding the denial of Ms. McRae’s LTD [ LTD Grievance ].
[52] J.C. says that a medical evaluation in September 2021 determined that Ms. McRae was “totally and permanently disabled” within the meaning of the Plan Document. In an email to the City on September 22, 2021, the Union agreed to withdraw the LTD Grievance on the conditions that: the City would direct the Society to place Ms. McRae on LTD; the Society would oversee her LTD file; her LTD would be paid pursuant to the Plan Document; Ms. McRae would sign a consent releasing her recent medical evaluation to the Society’s claims adjudicator; and the City would provide the Union and Ms. McRae with copies of certain documents related to the administration of LTD claims. In a letter to the Society the next day, J.C. advised that, during the LTD Grievance process, a medical evaluation had determined that Ms. McRae qualified for further benefits under the Plan Document, and a decision had been made to reinstate her LTD.
[53] The Society reinstated Ms. McRae’s LTD effective September 27, 2021. J.C. says that, “on this basis, the Union withdrew the Accommodation Grievance” on November 4, 2021. In a letter to J.C. on November 4, the Union wrote that it considered the Accommodation Grievance “hereby withdrawn in accordance with the agreement reached between the City of Burnaby and the Union.” The Union stated that it considered the file concluded.
[54] On November 5, 2021, the Union emailed Ms. McRae, attaching “a letter of withdrawal in regards to [the Accommodation Grievance] along with a letter of resolve for [the LTD Grievance].” In a letter to Ms. McRae, dated November 4, 2021, the Union stated that it had “resolved” the LTD Grievance and the file was considered closed.
E. Paid Time Policy Grievance
[55] In addition to paid vacation credits, employees can accrue and bank other paid time credits under the Collective Agreement. In a 2018 email to Ms. McRae, the City advised that employees “moving from MTD to LTD … have to use up their paid time credits such as vacation, banked [overtime], etc. prior to commencing their LTD benefits.”
[56] J.C. says that, historically, “the City’s long-standing practice was to require that employees use their paid time credits when they were transitioning from MTD to LTD.” She says that, in accordance with this practice, “the City required [Ms. McRae] to use her earned paid time credits when she transitioned from MTD to LTD.”
[57] On May 12, 2021, the Union filed a policy grievance (number 2021-20) regarding this issue [ Paid Time Policy Grievance ]. On the grievance form, the Union stated that, during the transition from MTD to LTD, “the City is forcing [employees] to take their accrued and banked vacation time and banked overtime … , paying out all or a portion of that [paid time], and/or eliminating some or all of that [paid time].” The Union asserted that this practice was not authorized under Collective Agreement or the Plan Document, and it involved a breach of employee privacy because it involved unauthorized sharing of personal information with the Society. The Union sought various remedies, including that the City would: stop its practice immediately; pay out overtime credits on March 31 each year or otherwise in accordance with the Collective Agreement; give employees the option of having their vacation credits paid out when they transitioned to LTD, or maintained in their vacation bank; make all employees affected by the City’s practice whole; and extend the leave of employees who had been required to take vacation or other paid time between MTD and LTD.
[58] The City’s position was that its practice had been long-standing and well-known to the Union, and any changes to it should be discussed at collective bargaining.
[59] On October 15, 2021, the Union referred the Paid Time Policy Grievance to arbitration. In a subsequent letter to the Union, the City advised that, while it maintained that its practice regarding paid time credits was consistent with the Collective Agreement, going forward it was changing the practice on a without prejudice basis. Effective January 4, 2022, the City’s new practice would be to “write to employees prior to the end of their [MTD] claim … and provide the option of using paid-time credits if available … prior to the [LTD] eligibility decision by [the Society].”
[60] Prior to the hearing of the Paid Time Policy Grievance, the parties settled the matter. The terms of settlement are set out in a settlement agreement between the Union and the City, dated May 12, 2022 [ Paid Time Settlement Agreement ]. Under the settlement, the Union agreed to withdraw the Paid Time Policy Grievance, and the City agreed to write to each employee that it had required to take paid time between MTD and LTD “during the period from January 1, 2021 to January 4, 2022,” and provide those employees with the option of buying back their paid time without affecting the commencement or expiry dates of their LTD claim.
[61] J.C. says the employees covered by the Paid Time Settlement Agreement did not include Ms. McRae.
III DECISION
[62] The parties agree that the substance of Ms. McRae’s complaint relates to the following allegations:
a. The City discriminated by denying Ms. McRae increment increases while she was on LTD [ Increment Allegation ];
b. The City discriminated by denying Ms. McRae vacation credits while she was on LTD [ Vacation Credits Allegation ];
c. The City discriminated by denying Ms. McRae the Special Benefit while she was on LTD [ Special Benefit Allegation ];
d. The City failed to accommodate Ms. McRae [ Accommodation Allegation ];
e. Ms. Tennant failed to accommodate Ms. McRae;
f. Some of Ms. Rosas’ conduct during the RTW Meeting amounted to discrimination;
g. Some of Mr. Chu’s conduct in relation to Ms. McRae’s return to work process amounted to discrimination; and
h. The City discriminated by eliminating Ms. McRae’s paid time credits when she transitioned from MTD to LTD [ Paid Time Allegation ]
[collectively, Complaint Allegations ].
[63] In addition, in her response to the City’s dismissal application, Ms. McRae says her complaint includes an allegation that the City denied “vacation seniority accrual” to employees on LTD. I take this to be an allegation that the City discriminated by denying Ms. McRae progression through the provisions of Article 8.1.1 of the Collective Agreement regarding the number of paid vacation day credits she was entitled to based on her length of service. On the materials before me, I do not accept that this allegation forms part of Ms. McRae’s complaint. In her pleadings (specifically, in her amendment of the complaint in August 2021), Ms. McRae’s vacation-related claims concern the alleged denial of her right to accrue and bank vacation credits. Her claims do not relate to the determination of her length of service for vacation purposes. In any event, the Article 8.1.1 Letter indicates that there was no denial of seniority accrual for the purpose of calculating vacation. Alternatively, even if I had accepted that the “vacation seniority accrual” allegation forms part of the complaint, I would have dismissed it under s. 27(1)(f) on the basis that the substance of this allegation was appropriately dealt with in the resolution of the Increment and Vacation Grievance.
[64] Ms. McRae also asserts that her complaint includes an allegation of discrimination related to pension contributions. In her response to the City’s dismissal application, she says that, in the complaint, she alleges “that the City discriminated … by denying [her] contributions to the [Municipal Pension Plan] while on LTD leave, from 2018 onwards.” Respectfully, I do not see this allegation anywhere in the complaint forms or amendments. I agree with the Respondents that the complaint does not allege a disability-related denial of pension contributions. In my view, this is a new allegation, which may be, at least in part, untimely. Under the circumstances, to add this allegation to her complaint, Ms. McRae would need to submit an application to the Tribunal, asking to file a Form 3 – Amendment: Rules of Practice and Procedure [ Rules ], Rule 24.
[65] In their dismissal allegation, the Respondents argue that the Complaint Allegations were fully resolved in the Increment and Vacation Grievance, Vacation Policy Grievance, Special Benefit Policy Grievance, Accommodation Grievance, and Paid Time Policy Grievance [collectively, Grievances or Grievance Proceedings ]. In other words, the Respondents argue that the substance of the Complaint Allegations have been appropriately dealt with in the Grievance Proceedings. As a result, they say the entire complaint should be dismissed under s. 27(1)(f) of the Code .
[66] Alternatively, the Respondents argue that the Tribunal should dismiss the complaint against the Individual Respondents under s. 27(1)(d)(ii) because proceeding against them would not further the Code ’s purposes.
A. Did the Grievances appropriately deal with the substance of the Complaint Allegations?
[67] Section 27(1)(f) gives the Tribunal discretion to dismiss a complaint or a part of it where “the substance of the complaint or that part of the complaint has been appropriately dealt with in another proceeding.” This provision of the Code is the “statutory reflection” of common law doctrines aimed at delivering “to the litigation process principles of finality, the avoidance of multiplicity of proceedings, and protection for the integrity of the administration of justice, all in the name of fairness”: British Columbia (Workers’ Compensation Board) v. Figliola , 2011 SCC 52 [ Figliola ] at para. 25; see Ashton v. Ministry of Transportation and Infrastructure and another , 2021 BCHRT 27 at para. 6.
[68] At their heart, the common law doctrines reflected in s. 27(1)(f) “exist to prevent unfairness by preventing ‘abuse of the decision-making process’”: Figliola at para. 34. Their “common underlying principles” include that (1) it is in everyone’s interest that the finality of a decision can be relied on, and (2) relitigation of issues previously decided in an appropriate forum can undermine confidence in the fairness of the justice system by creating inconsistent results and unnecessarily duplicative proceedings: Figliola at para. 34.
[69] Section 27(1)(f) does not codify the common law doctrines reflected in it; rather, “it embraces their underlying principles in pursuit of finality, fairness, and the integrity of the justice system by preventing unnecessary inconsistency, multiplicity and delay”: Figliola at para. 36. The Tribunal relies on these underlying principles in its application of s. 27(1)(f):
Relying on these underlying principles leads to the Tribunal asking itself whether there was concurrent jurisdiction to decide human rights issues; whether the previously decided legal issue was essentially the same as what is being complained of to the Tribunal; and whether there was an opportunity for the complainants or their privies to know the case to be met and have the chance to meet it, regardless of how closely the previous process procedurally mirrored the one the Tribunal prefers or uses itself. All of these questions go to determining whether the substance of a complaint has been “appropriately dealt with”. At the end of the day, it is really a question of whether it makes sense to expend public and private resources on the relitigation of what is essentially the same dispute: Figliola at para. 37.
[70] It is settled law that labour arbitrators and the Tribunal have concurrent jurisdiction to decide human rights issues: Sebastian v. Vancouver Coastal Health Authority , 2019 BCCA 241 at para. 37. Further, the Code expressly defines a “proceeding” under s. 27(1)(f) as including “a grievance under a collective agreement”: Code , s. 25(1). In this regard, it “is clear that section 27(1)(f) of the Code contemplates the complete grievance process, and disposition during any stage of it”: McCue v. University of British Columbia (No. 2) , 2014 BCHRT 57 at para. 35, citing Vetro v. Klassen and Pacific Transit Cooperative (No. 2) , 2005 BCHRT 263 at para. 14. There is “no requirement that the matter proceed to arbitration … in order for section 27(1)(f) to apply: McCue at para. 35, citing Charbonneau v. Alcan Inc. and others , 2004 BCHRT 19 at para. 16. Rather, “the whole of the grievance process must be considered, from the time a grievance is filed until resolution, including resolution by agreement”: McCue at para. 35, citing Sandhu v. City of Vancouver (No. 2) , 2009 BCHRT 238 at paras. 25-26.
[71] The issue in this dismissal application, then, is not with the nature of the Grievance Proceedings, per se. The issue is whether “the substance” of the Complaint Allegations were “appropriately dealt with” in the Grievance Proceedings. More specifically, the questions in this dismissal application relate to whether the matters dealt with in the Grievances were “essentially the same” as the Complaint Allegations, and whether those matters were dealt with appropriately within the meaning of s. 27(1)(f).
[72] To answer these questions, I will address each of the Complaint Allegations in the context of the specific Grievances the Respondents say dealt with them.
1. Increment and Vacation Grievance
[73] The Respondents say the Increment Allegation and the Vacation Credits Allegation were dealt with in the Increment and Vacation Grievance.
[74] I do not agree that the substance of the Vacation Credits Allegation was appropriately dealt with in the Increment and Vacation Grievance. However, I am satisfied that the Vacation Credits Allegation was dealt with in the Vacation Policy Grievance. As a result, I need not discuss the Vacation Credits Allegation here. I will return to it below.
[75] Here, I will only address whether the Increment and Vacation Grievance appropriately dealt with the substance of the Increment Allegation. In my view, it did not.
[76] Ms. McRae originally made the Increment Allegation to the Tribunal in her first complaint form in December 2020. She suggested that the City’s denial of increment increases to employees on LTD was “not a legitimate practice.” She said it amounted to “arbitrary discrimination and differentiation” between disabled employees on MTD and disabled employees on LTD. The remedies sought included changes to the Collective Agreement and the Plan Document. In the complaint form, she described her complaint as asserting that “arbitrarily distinguishing and discriminating against different members who share a protected class is against Canada’s Human Rights laws.” She described the complaint as shedding light on “antiquated practices.”
[77] I accept that some of these same issues may have been put forward when the Increment and Vacation Grievance was initiated. However, on the information before me, I am not satisfied that essentially the same issues were dealt with in that proceeding.
[78] The evidence indicates that the parties to the Increment and Vacation Grievance dealt with the issue of whether employees on LTD were contractually entitled to receive increment increases under the Collective Agreement. The grievance proceeding arguably decided this contractual issue in the sense that, at Step 3 of the process, (1) the City and the Union agreed that the Collective Agreement did not provide this entitlement for employees on LTD, including Ms. McRae, and (2) the Union therefore “verbally withdrew” its allegation “that [Ms. McRae] was entitled to receive [increment increases] outlined in … the Collective Agreement while on LTD” (J.C.’s Affidavit at paras. 16 and 21).
[79] In contrast, at their core, the issues raised in the complaint go to the question of whether it was discrimination to deny increment increases to employees on LTD while granting them to other employees, including employees on MTD. This is a human rights question, not a contractual matter or Collective Agreement interpretation issue. In the words of the Tribunal in Villella v. City of Vancouver and others (No. 3) , 2005 BCHRT 405 at para. 21, this human rights question is “the real substance or essential nature” of the Increment Allegation. There is nothing in the materials before me to suggest that this question (or an essentially similar question) was addressed in the Increment and Vacation Grievance. At most, that grievance decided a contractual issue. It did not deal with a human rights question.
[80] I acknowledge the Respondents’ submissions regarding the Union having been the exclusive bargaining agent for Ms. McRae, which meant the Union, not Ms. McRae, had the right to decide how to resolve the Grievances. I also acknowledge the Respondents’ assertion that the Union was Ms. McRae’s privy in the Grievances. However, even if the Union was Ms. McRae’s privy in the Increment and Vacation Grievance, the mere fact that it withdrew the portion of the grievance related to increment increases is not determinative of whether the grievance process appropriately dealt with the substance of the Increment Allegation: McCue at para. 36.
[81] Even accepting, without deciding, that the Union was Ms. McRae’s privy in the Increment and Vacation Grievance, I am not satisfied that the contractual issue regarding increment increases that was decided in the grievance process was essentially the same as the human rights question at the core of the Increment Allegation before the Tribunal. As a result, I find that the substance of the Increment Allegation was not appropriately dealt with in another proceeding. The Respondents’ application to dismiss the Increment Allegation under s. 27(1)(f) is denied.
2. Vacation Policy Grievance
[82] The Respondents say the Vacation Credits Allegation was dealt with in the Vacation Policy Grievance. I agree. In this section, I will explain why.
[83] Ms. McRae originally made the Vacation Credits Allegation to the Tribunal when she amended the complaint in August 2021. She alleged that the City violated her human rights when it withheld her “annual vacation entitlements … while [she] was on approved/authorized medical leave.” She said there was “no provision in the Collective Agreement to allow for such discriminatory action, nor does [the Plan Document] have any language to do so.” She sought to “be made whole,” including having her unpaid vacation credits paid in full.
[84] In her amendment form, Ms. McRae acknowledged that the Vacation Policy Grievance had been filed, but she asserted that the Union was “not seeking individual damages for its members.” This assertion seems to have been based on representations made to Ms. McRae by Union counsel in an email on February 12, 2021. In his email to Ms. McRae regarding the Vacation Policy Grievance, counsel stated that “individual remedies (damages and/or wages) will not be sought by the Union.” This statement is contradicted by the other evidence before me, including the “make whole” remedy expressly sought by the Union in the grievance form. Further, while the Respondents and Ms. McRae differ in their descriptions of how much she was paid under the Vacation Settlement Agreement, there is no dispute that Ms. McRae received some amount of retroactive payment for her 2020 and 2021 vacation credits.
[85] In her response to the Respondents’ dismissal application, Ms. McRae argues that the substance of the Vacation Credits Allegation was not appropriately dealt with in the Vacation Policy Grievance because “there was no human rights perspective” and the Vacation Settlement Agreement did “not address whether the Respondents conduct was discriminatory.” She says this discrimination question forms the substance of her complaint to the Tribunal and remains unaddressed. She says no administrative tribunal has heard her complaint on its merits. Ms. McRae says the City continues to deny that it discriminated. She notes that there is nothing preventing the City from reverting back to its old practice of denying vacation credits to employees on LTD.
[86] Ms. McRae also takes issue with the remedy provided in the Vacation Policy Grievance. She argues that the Vacation Settlement Agreement “did not address the same issue” raised in her human rights complaint, because, among other things, it “did not include compensation for [her] vacation entitlements for 2018, 2019.” She says the amount of her outstanding vacation entitlements is far more than she received under the Vacation Settlement Agreement. Ms. McRae argues that the Respondents knew about her human rights complaint when it settled the Vacation Policy Grievance, and had the opportunity to address the issues raised in the complaint in that settlement, but failed to do so. She says the remedies sought in her complaint are only available from the Tribunal.
[87] Finally, Ms. McRae makes arguments regarding the fairness of the Vacation Policy Grievance. She argues that she was not a party to the grievance and was “denied the opportunity to be heard” in the proceeding. She says the “union owns the grievance” and there was “no appeal process.”
[88] The Respondents make various arguments in reply to Ms. McRae’s submissions, including arguing that: the Union was Ms. McRae’s privy in the Grievance Proceedings, it knew the case it needed to meet, and it had a chance to meet it; there is no basis for the Tribunal to conclude that the resolution of the Grievances was unconscionable or substantially unfair; s. 27(1)(f) is about whether the legal issue in the previous proceeding was essentially the same as what is being complained of to the Tribunal, it is not about whether the outcome or remedies achieved in the previous proceeding match those sought from the Tribunal; and there is no support in the case law “for the proposition that a respondent has an obligation to ensure that a human rights analysis and remedy are evident on the face of a resolution reached in respect of grievances involving allegations of discrimination.”
[89] Both parties make very strong arguments. However, for the following reasons, on balance, I am satisfied that the substance of the Vacation Credits Allegation was appropriately dealt with in the Vacation Policy Grievance.
[90] First, I disagree with the notion that the parties to the Vacation Policy Grievance did not apply a “human rights perspective” or otherwise address the issue of discrimination. On the contrary, in the grievance form, the Union expressly alleged that the City’s long-standing practice of denying vacation credits to employees on LTD not only violated the Collective Agreement, but also contravened “Section 13 of the Human Rights Code .” Implicit in this allegation was a claim of disability-related adverse treatment of employees on LTD. In my view, on the evidence, the Vacation Credits Allegation is essentially the same as the human rights issue raised in the Vacation Policy Grievance.
[91] For its part, the City responded to the Union’s discrimination allegation with a human rights argument of its own. In the Vacation Policy Grievance proceeding, it expressly put forward an exemption defence under s. 13(3)(b) of the Code , suggesting that its practice was not discriminatory because it related to the operation of a bona fide employee insurance plan. In any event, I note that it is not necessary in every case “that another proceeding undertake a full human rights analysis to deal with the substance of a human rights complaint”: Patterson v. Environmental 360 Solutions Ltd. , 2025 BCHRT 39 at para. 24.
[92] I appreciate that the City knew about Ms. McRae’s human rights complaint when it settled the Vacation Policy Grievance, and I acknowledge that the Vacation Settlement Agreement did not address whether the City had, in fact, contravened the Code . However, in my view, by eliminating the allegedly discriminatory practice and providing a measure of compensation to those previously adversely impacted, including Ms. McRae, the Vacation Settlement Agreement dealt with the underlying human rights issue in the Vacation Policy Grievance, which mirrored the issue in the Vacation Credits Allegation. While I agree with Ms. McRae that no administrative tribunal has heard this issue on its merits, there is no requirement that a grievance matter proceed to arbitration for s. 27(1)(f) to apply: McCue at para. 35. While I appreciate Ms. McRae’s concern that the City could revert back to its old practice, this consideration does not factor into the s. 27(1)(f) analysis.
[93] Second, I do not accept that the Vacation Policy Grievance failed to address Ms. McRae’s human rights matter simply because it did not provide compensation for her 2018 and 2019 vacation credits or award all the remedies sought in her complaint to the Tribunal. A complaint may be dismissed under s. 27(1)(f) even if another proceeding has not provided the complainant with all the remedies they may be entitled to under human rights legislation: see Patterson at paras. 24-25. In particular, while arbitrators “have jurisdiction to award remedies under the Human Rights Code including damages for injury to dignity,” the fact that the Vacation Policy Grievance “did not include these damages is not determinative of whether it dealt with the substance” of Ms. McRae’s complaint: United Food and Commercial Workers’ Union Local 1518 v. United Steelworkers Local 2009 , 2024 CanLII 122011 (BCLA) at para. 298 (re: arbitral jurisdiction) and Patterson at para. 25 (re: s. 27(1)(f) and injury to dignity damages).
[94] Third, I acknowledge that Ms. McRae was not directly heard, as an individual, in the Vacation Policy Grievance, and I agree that the Union, not her, had carriage of the grievance. I accept her claim in the amendment form that she “was not given a vote or a choice by the Union on whether or not to accept” the Vacation Settlement Agreement. However, in my view, these facts alone do not render the Vacation Policy Grievance proceeding incapable of fairly and appropriately dealing with the substance of the Vacation Credits Allegation.
[95] The human rights issue in the Vacation Policy Grievance was essentially the same as the Vacation Credits Allegation. The make whole remedy pursued by the Union mirrored the remedy requested by Ms. McRae in the amendment form. The City’s agreement to change its practice effectively substituted for a cease and refrain order from the Tribunal. Through the grievance process, Ms. McRae received the benefit of a more timely and effective resolution of the vacation credits issue, compared to what was possible through the Tribunal’s process. The remedies achieved by the Union were responsive to Ms. McRae’s concerns regarding the City’s practice and its financial impact on her. Under these circumstances, I am satisfied that the Union was Ms. McRae’s privy in the Vacation Policy Grievance proceeding for the purposes of the analysis under s. 27(1)(f). Further, I am satisfied, on the evidence before me, that the Union had an opportunity to know the case to be met and to meet it.
[96] I appreciate that the Vacation Settlement Agreement did not give Ms. McRae everything she is seeking. However, that is a feature of most settlements: Buchner v. British Columbia Ambulance Service and another , 2006 BCHRT 73 at para. 39. Ms. McRae’s dissatisfaction with the settlement is not determinative of whether the grievance proceeding can be said to have appropriately dealt with the substance of her allegation: see De Silva v. Fraser Health Authority and BCNU (No. 2) , 2011 BCHRT 195 at para. 123. Moreover, I do not accept that she had no avenue of recourse regarding the settlement, even if there was no appeal process. The Labour Relations Code provides a complaint process for union members who believe their union represented them in a manner that was arbitrary, discriminatory, or bad faith: Labour Relations Code , ss. 12-13.
[97] For these reasons, considering the whole of the Vacation Policy Grievance process, on balance I am satisfied that it appropriately dealt with the substance of the Vacation Credits Allegation within the meaning of s. 27(1)(f). In my view, it does not make sense to use public and private resources to relitigate this matter.
[98] I note that this determination is not inconsistent with an earlier decision of the Tribunal in an application by the Respondents to defer Ms. McRae’s complaint. In a letter decision dated October 18, 2022, the Tribunal considered the Vacation Policy Grievance and the Special Benefit Policy Grievance and declined to defer further consideration of the complaint [ Deferral Decision ]. That decision, unlike mine here, looked at whether the two policy grievances could appropriately deal with the entirety of Ms. McRae’s complaint. In the Deferral Decision, the Tribunal explained that it was not satisfied that the two policy grievances were “capable of appropriately dealing with the full substance of the complaint .” It said it was not convinced that the policy grievances were “of the same nature and cover[ed] the same subject matter as the whole of the complaint ”: Deferral Decision, p. 4 (emphasis added). Specifically, the Tribunal found that the policy grievances did not address the Increment Allegation or Ms. McRae’s allegations against the Individual Respondents. On the other hand, the Tribunal concluded that the policy grievances did address (1) Ms. McRae’s allegation that the City withheld her vacation entitlements, and (2) “part of” her allegations that the City denied her increment increases and the Special Benefit.
[99] The Respondents’ application to dismiss the Vacation Credits Allegation under s. 27(1)(f) is granted. The allegation is dismissed.
3. Special Benefit Policy Grievance
[100] The Respondents say the Special Benefit Allegation was dealt with in the Special Benefit Policy Grievance. As in the previous section, I agree with the Respondents here and will explain why.
[101] Ms. McRae originally made the Special Benefit Allegation to the Tribunal in her first complaint form. The nature of the allegation was similar to that of the Increment Allegation. Ms. McRae suggested that the City’s denial of the Special Benefit to employees on LTD was not a legitimate practice. She said it amounted to arbitrary discrimination and differentiation between disabled employees on MTD and those on LTD. She described her complaint as shedding light on antiquated practices, and sought changes to the Collective Agreement and the Plan Document.
[102] In her response to the dismissal application, Ms. McRae argues that the substance of the Special Benefit Allegation was not appropriately addressed in the Special Benefit Policy Grievance. Her arguments are similar to those made regarding the Vacation Policy Grievance. Ms. McRae says there was no human rights perspective in the grievance proceeding and the Special Benefit Settlement Agreement did not address whether the Respondents conduct was discriminatory. She says this discrimination question forms the substance of her complaint to the Tribunal and remains unaddressed. She says no administrative tribunal has heard her complaint on its merits, and there is nothing preventing the City from reverting back to its practice of denying the Special Benefit to employees on LTD. Ms. McRae argues that the Special Benefit Grievance “did not appropriately address the same issue” raised in her human rights complaint, because the complaint seeks compensation for “for the entire period that the alleged discrimination took place.” She says the remedies sought in her complaint are only available from the Tribunal. She adds that the Union had carriage of the policy grievance and there was no appeal process.
[103] The Respondents make the same arguments here as they did regarding the Vacation Policy Grievance.
[104] I am satisfied that the substance of the Special Benefit Allegation was appropriately dealt with in the Special Benefit Policy Grievance. My reasons are similar to those outlined above regarding the Vacation Policy Grievance.
[105] First, a full human rights analysis is not necessarily required to appropriately deal with the substance of a complaint. In any event, the materials before me indicate that the parties to the Special Benefit Policy Grievance addressed the relevant human rights questions. While the Step 2 grievance form did not allege discrimination, the evidence regarding Step 3 and Step 4 indicates that the Union repeatedly asserted that the City’s practice of not including the Special Benefit in calculating LTD was likely discriminatory. This is essentially the same human rights issue as what is being complained of in the Special Benefit Allegation before the Tribunal. In response to this issue, at Step 4 of the grievance proceeding, the City cited the bona fide plan exemption under s. 13 of the Code , and referenced the language of the legal test under s. 13(3)(b), which looks at whether the plan is a “ legitimate plan, adopted in good faith and not for the purpose of defeating the protected rights”: New Brunswick (Human Rights Commission) v. Potash Corporation of Saskatchewan Inc., [2008] 2 SCR 604 at para. 41 (emphasis added).
[106] Second, I make the following determinations:
a. While the Special Benefit Grievance did not answer the question of whether the City had contravened the Code , I am satisfied that the Special Benefit Settlement Agreement dealt with the underlying human right issue.
b. I do not accept that the Special Benefit Grievance failed to address Ms. McRae’s human rights matter simply because it did not provide compensation for the entire period of alleged discrimination or award all the remedies sought in her complaint to the Tribunal.
c. I am satisfied that the Union was Ms. McRae’s privy in the Special Benefit Policy Grievance proceeding for the purposes of the analysis under s. 27(1)(f). Further, I am satisfied, on the evidence before me, that the Union had an opportunity to know the case to be met and to meet it.
d. I do not accept that Ms. McRae had no avenue of recourse regarding the settlement, even if there was no appeal process.
[107] I make these determinations for the same reasons I made them regarding the Vacation Policy Grievance and the Vacation Settlement Agreement.
[108] For all of these reasons, considering the whole of the Special Benefit Grievance process, on balance I am satisfied that it appropriately dealt with the substance of the Special Benefit Allegation within the meaning of s. 27(1)(f). In my view, it does not make sense to use public and private resources to relitigate this issue. Further, for the reasons outlined above regarding the Vacation Policy Grievance, my decision here is not inconsistent with the Deferral Decision.
[109] The Respondents’ application to dismiss the Special Benefit Allegation is granted. The allegation is dismissed.
4. Accommodation Grievance
[110] The Respondents say the Accommodation Grievance dealt with the Accommodation Allegation and the related allegations against the Individual Respondents.
[111] Ms. McRae originally made these allegations in her second complaint form in January 2021. She said she had a physical disability and alleged that the Respondents refused “to accept the disability and [would] not accommodate [her] in the work place.” She alleged that she had provided medical documentation to the City, including Mr. Chu, “to support the need/requirement to work remotely” due to her disability, but “was refused each and every time [she] requested to work remotely,” even though other colleagues were allowed to do so. She alleged that the City and “in particular Lambert Chu, formally refused/declined to permit [her] to work remotely without explaining why.” She said the only difference between her circumstances and those of colleagues who worked remotely was that she is a person with a physical disability. She took issue with Mr. Chu’s Step 4 decision regarding the Accommodation Grievance, and said he discriminated by refusing to correspond with her during the time period “allotted to find reasonable accommodation” for her.
[112] In the complaint form, Ms. McRae also alleged that “Pat Tennant, as HR Director,” prevented her return to work and refused to accommodate her. Ms. McRae said that, by “refusing to allow [her] to work remotely, as part of medically supported recommendations,” Ms. Tennant had “actively prohibited any potential for … return to work.” Ms. McRae pinpointed Ms. Tennant’s alleged conduct on September 28, 2020, saying that Ms. Tennant had “refused to acknowledge and confirm the updated medical information that was provided directly” to her that day, which prevented “any chance [for Ms. McRae] to have the accommodation of working remotely activated.”
[113] In addition, Ms. McRae alleged that Ms. Rosas, “in her role as HR Advisor,” made “disparaging and offensive remarks” at the RTW Meeting. Specifically, Ms. McRae alleged that Ms. Rosas said to her: “Your medical recommendations say that you shouldn’t be required to talk except for emergency situations, and you’re talking now [i.e., during the RTW Meeting], and I don’t think this is an emergency.” Ms. McRae alleged that these comments are “evidence of intentional discrimination … meant to cause harm.” She said she was humiliated and embarrassed.
[114] On the evidence, I am satisfied that some of these issues were canvassed in depth by the Union and the City in the Accommodation Grievance process. For the purposes of this decision, I accept, without deciding, that the accommodation issues in dispute in the Accommodation Grievance were essentially the same as the Accommodation Allegation that is before the Tribunal. But the inquiry under s. 27(1)(f) does not end there. The question remains: Were the issues “appropriately dealt with” in the Accommodation Grievance proceeding? In my view, the answer is no.
[115] The Respondents argue that “the Tribunal in this case is in possession of sufficient information to allow it to assess the resolution imposed in respect of each of the Grievances,” and the “information reveals that every resolution appropriately dealt with the substance” of Ms. McRae’s human rights complaint. They say the settlements of the Grievances were valid and “the remedies were appropriately responsive to the concerns raised in the Complaint.” They argue that “the facts surrounding the withdrawal of [the Accommodation Grievance] invariably lead to the conclusion that, in withdrawing the grievance, the Union did so in a manner that was fair and based upon proper principles, and with due consideration given to the relevant facts and human rights law.” The Respondents say it was the Union’s prerogative to decide to withdraw the Accommodation Grievance. They assert that the City was entitled to rely on the finality of the resolutions it reached with the Union in respect of the Grievances, and it would not make sense to relitigate these matters. They argue that the present case is on all fours with Charbonneau v. Alcan Inc. and others , 2004 BCHRT 19, in which the Tribunal dismissed certain complaint allegations under s. 27(1)(f) in circumstances where the complainant’s union withdrew a grievance regarding essentially the same issues.
[116] I am not persuaded by the Respondents’ arguments. I do not agree that the information before me reveals that the resolution of the Accommodation Grievance appropriately dealt with the substance of the Accommodation Allegation, let alone the substance of the allegations against the Individual Respondents.
[117] The Respondents’ evidence is that the Society approved Ms. McRae for further LTD effective September 27, 2021, and the Union withdrew the Accommodation Grievance “on this basis.” The Respondents have put forward no other explanation for the Union’s withdrawal of the grievance, and no further details about how the accommodation issues raised in the grievance were decided or resolved. In its November 4, 2021 letter to J.C., the Union stated that it was withdrawing the Accommodation Grievance “in accordance with the agreement between the City of Burnaby and the Union.” Yet there is no settlement agreement before me regarding the Accommodation Grievance; there is only correspondence between the Union and the City setting out terms and conditions for the resolution of the LTD Grievance, but not the Accommodation Grievance. I am therefore left to infer that the Union and the City “dealt with” the accommodation issues in the Accommodation Grievance by placing Ms. McRae on LTD.
[118] The Respondents say that the circumstances surrounding the withdrawal of the Accommodation Grievance lead to the conclusion that the Union withdrew the grievance based upon proper principles. I disagree.
[119] It is not clear to me what, if any, principles formed the basis for the Union’s withdrawal of the Accommodation Grievance. All I can see in the materials before me, is a thorough review, during the grievance process, of the accommodation issues raised in the Accommodation Grievance, followed by the Union’s withdrawal of the grievance for a reason (the approval of Ms. McRae’s LTD claim) that was wholly unrelated and unresponsive to those issues. In these circumstances, viewing the Accommodation Grievance process as a whole, from filing to resolution, I am unable to dismiss the Accommodation Allegation under s. 27(1)(f), even while accepting (without deciding) that it raises essentially the same accommodation issues as those raised in the grievance. I cannot conclude that the accommodation issues were decided or otherwise “appropriately dealt with” in the grievance proceeding within the meaning of s. 27(1)(f).
[120] I disagree that the circumstances in this case are on all fours with Charbonneau . In Charbonneau , the complainant plead that her grievance was withdrawn because “a settlement was reached.” In contrast, Ms. McRae describes the Accommodation Grievance as having been withdrawn, but does not admit that the matter was settled. Nor is there evidence before me of any “settlement” of the accommodation dispute – i.e., there is no evidence of an agreement intended to resolve the accommodation dispute on mutually satisfactory terms, no information about what those essential terms might have been, and no apparent mutual exchange of promises or other things of value.
[121] In any event, despite Charbonneau , at the end of the day, “the fact that a grievance was resolved or withdrawn does not necessarily lead to the conclusion that the resolution appropriately dealt with the substance of the complaint”: Dunlop v. Overwaitea , 2007 BCHRT 254 at para. 61. The determination under s. 27(1)(f) turns on the specific circumstances of the particular grievance process before the Tribunal. In the circumstances of the Accommodation Grievance, where the information before me indicates that the withdrawal of the grievance was for a reason that was unresponsive to the legal issues raised, unaligned with Ms. McRae’s interests in resolving those issues, and unrelated to the merits of her accommodation case, I am not persuaded that the substance of the matter was appropriately dealt with in the grievance proceeding within the meaning of s. 27(1)(f).
[122] This is not to say that the Union’s withdrawal of the Accommodation Grievance was unconscionable or necessarily unfair. And it is not to suggest that Ms. McRae had no ability to challenge the Union’s decision to withdraw the grievance. I accept that the Union acted within its rights, and that Ms. McRae could have taken action against the Union if she was dissatisfied. But these things do not change my conclusion that the substance of her issues were not appropriately dealt with.
[123] The Respondents say that “there is a strong public policy interest in encouraging parties to resolve their disputes on a voluntary, consensual basis,” which “would be undermined if parties who had entered into a final settlement of their human rights dispute were, absent public policy considerations to the contrary, permitted to come forward and pursue a complaint to the Tribunal”: Thompson v. Providence Health Care , 2003 BCHRT 58 at para. 38. I agree with these statements; however, they do not reflect the circumstances here. The dispute about Ms. McRae’s accommodation was not resolved; the withdrawal of the Accommodation Grievance was unresponsive to the issues raised in the dispute. Moreover, as I have explained, there is no evidence of any “settlement” of the dispute.
[124] For all of the above reasons, the Respondents’ application to dismiss the Accommodation Allegation and the related allegations against the Individual Respondents is denied.
5. Paid Time Policy Grievance
[125] Finally, the Respondents say the Paid Time Allegation was dealt with in the Paid Time Policy Grievance.
[126] Ms. McRae originally made the Paid Time Allegation to the Tribunal when she amended the complaint in August 2021. The nature of the allegation was similar to that of the Vacation Credits Allegation. Ms. McRae alleged that the City violated her human rights when it “clawed back (recovered/took without consent)” her banked entitlements in 2018. She said there was “no provision in the Collective Agreement to allow for such discriminatory action, nor does [the Plan Document] have any language to do so.” She said the Society had acknowledged in writing that there was no authority “to withhold/claw-back/reduce … any vacation time or any other ‘paid time credits.’” She sought to “be made whole,” including having the balance of her banked credits restored.
[127] In their dismissal application, the Respondents acknowledge that Ms. McRae received no remedy from the Paid Time Policy Grievance. However, they argue that this should not prevent the dismissal of the Paid Time Allegation in the circumstances of this case. They say the present case “is on all fours with De Silva … where the Tribunal dismissed the complaint pursuant to section 27(1)(f) notwithstanding that the complainant did not receive injury to dignity damages in the other proceeding.”
[128] In my view, De Silva is distinguishable in important ways from the case before me and not particularly helpful to my assessment of whether the Paid Time Allegation was appropriately dealt with in the Paid Time Policy Grievance.
[129] First, the Tribunal decided De Silva under s. 27(1)(d)(ii), not s. 27(1)(f), finding “that proceeding with [the] complaint would not further the purposes of the Code ”: De Silva at para. 135. That is not the question before me.
[130] Second, the Tribunal’s decision in De Silva turned on the particular circumstances before it, which were different in certain respects than the circumstances of the case now before me.
[131] In De Silva , the employer negotiated with the complainant’s union regarding her accommodation issues, and agreed on a resolution that was signed off by all parties, including the complainant in 2009 [ 2009 agreement ]. Under the 2009 agreement, the complainant was placed in a full-time position. A couple of days later, the employer and the union settled a selection grievance, which had been filed on behalf of the complainant in 2006. The complainant was dissatisfied with the selection grievance settlement, stating that it provided inadequate compensation for her broader accommodation issues. The Union, on the other hand, viewed the selection grievance more narrowly, stating that it did not encompass the complainant’s broader issues.
[132] The employer and the union subsequently signed off on an “addendum” to the 2009 agreement, which provided back pay and other compensation to the complainant in relation to a delay placing her in the agreed upon full-time position. The addendum expressly purported to be a full and final settlement of the complainant’s accommodation issues and all related claims. The complainant appealed the selection grievance settlement and refused to sign the addendum.
[133] Before the Tribunal, the employer in De Silva argued that the 2009 agreement and the addendum settled all claims relating to the complainant’s accommodation issues. The complainant, on the other hand, argued that the union had refused to press the employer regarding her issues beyond filing the selection grievance, and she sought remedies for the employer’s alleged failure to accommodate between 2006 and 2009, including compensation for injury to dignity. On the evidence, the Tribunal found that the agreement and addendum met the complainant’s express goal to be accommodated into a full-time position. Further, the Tribunal found that she received full compensation for the employer’s failure to place her in the position sooner. The Tribunal said that it was “alive to the need to ensure that complainants have access to remedies available under the Code ,” but it was satisfied that the complainant, “through the Union, had that access.”
[134] Unlike in De Silva , in the present case, there is no evidence that the Paid Time Settlement Agreement was the result of negotiations between the City and the Union regarding Ms. McRae’s human rights issue. The City’s evidence is that Ms. McRae was not included in the Paid Time Settlement Agreement; she was not covered by the terms of settlement. The settlement agreement does not address the substance of the Paid Time Allegation, which relates to Ms. McRae’s losses resulting from the City requiring her to use up all her paid time credits before commencing LTD.
[135] I accept that the Paid Time Policy Grievance raised issues that are similar to those advanced through the Paid Time Allegation, in the sense that the Union challenged the City’s practice and initially sought a remedy for all impacted employees, including Ms. McRae. However, viewing the grievance process as a whole, and considering Ms. McRae’s complete exclusion from its resolution – the reasons for which are not explained in the materials before me – I am not satisfied that the grievance proceeding essentially decided the Paid Time Allegation, nor do I accept that Ms. McRae had an opportunity (either directly or through a privy) to know the case to be met or a chance to meet it.
[136] On the evidence, I am not satisfied that the Paid Time Policy Grievance addressed Ms. McRae’s individual allegation of discrimination, in circumstances where she was excluded from the grievance’s resolution. I appreciate that the question under s. 27(1)(f) is not whether a complainant achieved all the same outcomes in the other proceeding that they seek from the Tribunal. My concern regarding the Paid Time Policy Grievance, however, is that it produced no outcome for Ms. McRae in relation to her paid time credits issue. There is no evidence before me to support a finding that her exclusion from the Paid Time Settlement Agreement was based upon any consideration of her circumstances or the merits of her human rights claim. In these circumstances, without an explanation of why Ms. McRae’s paid time credits issue was left out of the disposition of the Paid Time Policy Grievance, I cannot say that the grievance proceeding essentially decided her issue.
[137] In addition, on the information filed, and considering the Paid Time Policy Grievance as a whole, I am not satisfied that the Union can be considered to have been Ms. McRae’s privy in the grievance proceeding. While, as the court stated in Danyluk v. Ainsworth Technologies Inc. , [2001] 2 SCR 460 at para. 60, “the concept of ‘privity’… is somewhat elastic,” in my view, to accept that the Union was Ms. McRae’s privy in the Paid Time Policy Grievance would be to stretch the concept too far. In the words of the Tribunal in MacRae v. Interfor (No. 2) , 2005 BCHRT 462 at para. 79 [ Interfor ], despite the Union’s “exclusive bargaining agency under the Labour Relations Code ,” Ms. McRae “was in every sense a stranger” to the grievance proceeding. There is no evidence that she was given notice of the proceeding or an opportunity to participate in it in any way. The parties to the grievance proceeding excluded Ms. McRae from its outcome. The remedies achieved by the Union were for other employees, not her, and were not responsive to the financial impact of the City’s practice on her. While the Paid Time Settlement Agreement may have adequately dealt with other employees’ claims regarding the paid time credits issue, in the circumstances of this case I do not accept that it can be held to prevent Ms. McRae from advancing her own human rights claim regarding that issue: see Interfor at para. 79.
[138] For these reasons, I find that the substance of the Paid Time Allegation was not appropriately dealt with in another proceeding. The Respondents’ application to dismiss the Paid Time Allegation under s. 27(1)(f) is denied.
[139] In sum then, the Vacation Credits Allegation and Special Benefit Allegation are dismissed. The other Complaint Allegations will proceed to a hearing.
B. Would proceeding with the complaint against the Individual Respondents not further the purposes of the Code ?
[140] I have decided that, with two exceptions, the Complaint Allegations will proceed to a hearing. The remaining question in this dismissal application is about whether it would not further the Code ’s purposes for the Individual Respondents to be parties at the hearing.
[141] Section 27(1)(d)(ii) of the Code allows the Tribunal to dismiss a complaint, or part of it, where proceeding would not further the purposes of the Code . A variety of circumstances may justify the Tribunal’s exercise of its discretion under s. 27(1)(d)(ii), including where the respondents to a complaint includes both individuals and corporate or institutional entities: see generally Daley v. B.C. (Ministry of Health) and others , 2006 BCHRT 341 and Williamson v. Mount Seymour Park Housing Co-operative and others , 2005 BCHRT 334.
[142] Broad public policy issues may be considered under s. 27(1)(d)(ii), such as the efficiency and responsiveness of the human rights system, the expense and time involved in a hearing, and other public policy considerations that engage the Code ’s purposes: Dar Santos v. University of British Columbia , 2003 BCHRT 73 at para. 59; James and Rowland v. The Owners, Strata Plan VR1120 , 2023 BCHRT 220 at paras. 28 and 34. In this regard, there are strong policy reasons for and against dismissing complaints against individual respondents: Daley at paras. 53-54. On one hand, for example, it is important to hold individual perpetrators of discrimination accountable for their actions: British Columbia Human Rights Tribunal v. Schrenk , 2017 SCC 62 at para. 56. On the other hand, naming individual respondents can complicate and delay the resolution of complaints, exacerbate feelings of personal animosity, and cause needless personal distress to individuals accused of discrimination: Daley at para. 54. In addition, since an institutional respondent is liable for the acts or omissions of its individual “employee, officer, director, official, or agent” within the scope of that person’s authority, the institutional respondent will be responsible for any remedy ordered by the Tribunal against them: Code , s. 44(2); Robichaud v. Canada , [1987] 2 SCR 84. Moreover, an institutional respondent tends to be better able, both practically and financially, to satisfy an order for compensation than an individual respondent: Daley at para. 54. In these situations, then, the remedial aims of the Code may be most fairly and efficiently fulfilled without holding specific individuals liable. The Tribunal balances all of these considerations in assessing whether it would not further the Code ’s purposes to proceed with a complaint against an individual respondent. Factors relevant to this assessment include:
a. whether the complaint names an institution as a respondent, and whether that institutional respondent is capable of fulfilling any remedies the Tribunal might order;
b. whether the institutional respondent has acknowledged the acts or omissions of the individual respondent as its own and has irrevocably acknowledged its responsibility to satisfy any remedial orders which the Tribunal might make regarding the individual’s conduct; and
c. the nature of the individual respondent’s alleged conduct, including whether:
i. it took place in the regular course of their functions for or on behalf of the institutional respondent;
ii. the individual is accused of being the “directing mind” behind the alleged discrimination or of having substantially influenced the impugned acts or omissions; and
iii. the alleged conduct has a measure of individual culpability, such as in cases involving discriminatory harassment: Daley at paras. 60-62.
[143] The Respondents apply to dismiss the complaint against the Individual Respondents under s. 27(1)(d)(ii). In response, Ms. McRae recounts her experience of the Individual Respondents’ alleged acts and omissions, and asserts that the type of conduct she alleges in her complaint could never be considered to have taken place in the regular course of a senior manager’s duties. At the same time, Ms. McRae says she forgives the Individual Respondents and defers to the Tribunal’s judgement regarding whether the complaint should be dismissed against them under s. 27(1)(d)(ii).
[144] The Respondents argue that an application of the factors from Daley , outlined above, leads to the conclusion that the complaint should be dismissed against the Individual Respondents under s. 27(1)(d)(ii). I agree.
[145] First, the City is a respondent in this proceeding. In her sworn statement to the Tribunal, J.C. affirms on behalf of the City that “the City has the ability to provide any remedy that might be ordered” in the complaint.
[146] Second, on behalf of the City, J.C. affirms that “if any acts or omissions of the Individual Respondents are found to be discriminatory, the City irrevocably acknowledges its responsibility to satisfy any remedial orders that the Tribunal may make in respect of their conduct.”
[147] Third, considering Ms. McRae’s description of the Individual Respondents’ alleged conduct, I am satisfied that it took place in the regular course of their functions as City employees. This is not to say, borrowing Ms. McRae’s words, that I accept “that a senior manager’s ‘regular course of duties’ is to belittle, diminish, [and] ignore all correspondence for months from a disabled employee who is without accommodation.” Rather, I simply accept that the Individual Respondents’ alleged conduct occurred in the regular course of them trying to do their jobs as city manager, director of human resources, and human resources advisor, respectively.
[148] Fourth, considering all the information before me, I am not satisfied that any single Individual Respondent was somehow the “directing mind” behind the discrimination alleged in the complaint, or substantially influenced what happened, to the extent that they should be held individually liable in this proceeding.
[149] Finally, while all individuals are generally responsible for their own actions, based on the evidence filed by the parties, in my view this is not a case where the alleged conduct of the Individual Respondents could be characterized as having “a measure of individual culpability” within the meaning of the s. 27(1)(d)(ii) analysis.
[150] For these reasons, I am persuaded that it would not further the Code ’s purposes to proceed with the complaint against the Individual Respondents. The application to dismiss the complaint against the Individual Respondents under s. 27(1)(d)(ii) is granted. The complaint against the Individual Respondents is dismissed.
IV CONCLUSION
[151] The Respondents’ dismissal application is granted in part.
[152] The complaint, as against Mr. Chu, Ms. Tennant, and Ms. Rosas, is dismissed under s. 27(1)(d)(ii) of the Code .
[153] The complaint, as against the City, will proceed to a hearing. However, the Vacation Credits Allegation and the Special Benefit Allegation are dismissed under s. 27(1)(f) of the Code .
[154] I encourage the parties to make efforts to settle this matter, or at least parts of it, including by making use of the Tribunal’s mediation services.
Jonathan Chapnick
Tribunal Member