SH v. WorkSafeBC and another, 2025 BCHRT 90
Date Issued: April 11, 2025
File: CS-003649
Indexed as: SH v. WorkSafeBC and another, 2025 BCHRT 90
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:
SH
COMPLAINANT
AND:
WorkSafeBC and Meredith Kennedy
RESPONDENTS
REASONS FOR DECISION
APPLICATION TO LIMIT PUBLICATION
Rule 5(6)
Tribunal Member: Theressa Etmanski
On their own behalf: SH
Counsel for the Respondent: Johanna Goosen
I INTRODUCTION
[1] SH alleges that WorkSafeBC and Meredith Kennedy [ Respondents ] discriminated against him on the ground of age in the area of accommodation, service and facility, contrary to s. 8 of the Human Rights Code . The Respondents deny the allegations.
[2] SH now applies to limit publication of his name pursuant to Rule 5(6) of the Tribunal’s Rules of Practice and Procedure . He says the hearing of his complaint will reveal private medical information which will cause harm to his reputation and cause a further decline to his mental health. The Respondents oppose the application and say SH has not raised any privacy interest that outweighs the public interest in transparent proceedings.
[3] At the heart of this application is whether the nature of SH’s private medical information, which includes diagnoses of depression and alcohol use disorder, raises a privacy interest that favours anonymization in all the circumstances of this complaint. I find that it does, and I grant the application.
[4] To make this decision, I have considered all the information filed by the parties. In these reasons, I only refer to what is necessary to explain my decision.
II BACKGROUND
[5] This information is taken from the materials filed by the parties and is provided here to put my decision in context. I make no findings of fact.
[6] SH worked as a Police Officer. In 2008, he injured his back at work and made a claim to WorkSafeBC [ WSBC ]. SH says his back injury was misdiagnosed and over the years he experienced reaggravations. By 2016, he says his condition worsened to the point that he was unable to continue with his normal work duties. In September 2017, SH provided new medical documentation to WSBC and asked them to reopen his claim. Ms. Kennedy was the Case Manager assigned to his claim.
[7] SH says that he found Ms. Kennedy “less than receptive” and that she implied he was “looking for a payoff” or trying to engage in a “nefarious deal”. He alleges she intentionally delayed the process to force him into early retirement. Specifically, he says that instead of offering him assistance to get him back to work, she contacted his employer seeking information about potential early retirement. Then, knowing he was 55 years old and eligible for a reduced early retirement, she neglected his claim. SH says that the delay resulted in him retiring early, ending his career, and causing “financial and emotional” harm. This is the first allegation of age discrimination.
[8] The second allegation of age discrimination arises out of interactions SH had with a WSBC Vocational Rehabilitation Consultant in 2020. SH says that the consultant questioned him “aggressively” about his search for alternate employment and when he asked her about the availability of a counselor to support with his transition into a new field of employment, she told him that it was “a bit late for that” given his age.
[9] During the processing of his 2017 claim, SH filed complaints with WSBC’s Fair Practices Office [ FPO ] and Freedom of Information and Privacy Office [ FIPP ]. In November 2018, the FPO confirmed there had been a “service failure.” In February 2019, FIPP confirmed there had been a “privacy breach.”
[10] On January 27, 2022, a WSBC Case Manager issued a decision accepting two mental health conditions, major depressive disorder and alcohol use disorder, as “compensable consequences” of SH’s earlier workplace injury. This decision was based on a December 2021 Psychological Assessment Report [ Psychological Assessment ] which opined:
Thus, it is my impression that the diagnoses of major depressive disorder and alcohol use disorder were majorly caused and maintained by the workplace incident and resulting injuries that occurred in 2010. I consider other injuries after the claim injury to have likely contributed moderately to the current diagnoses. I consider stressors related to his claim to have moderately contributed to his current diagnoses.
[11] The Respondents deny discriminating. They say there has been no denial of any service, and SH’s age was not a factor in any decisions made. Regarding the alleged comments by Ms. Kennedy and the consultant, the Respondents say that, even if proven, they do not rise to the level of discrimination under the Code .
III DECISION
[12] Complaints at the Tribunal are presumptively public: Mother A obo Child B v. School District C , 2015 BCHRT 64 at para. 7. This openness serves four main goals: maintaining an effective evidentiary process; ensuring that Tribunal members act fairly; promoting public confidence in the Tribunal; and, educating the public about the Tribunal’s process and development of the law : Edmonton Journal v. Alberta (Attorney General) , [1989] 2 SCR 1326 at para. 61; JY v. Various Waxing Salons, 2019 BCHRT 106 at para. 25. These goals align with the purposes of the Code , which include fostering a more equitable society and identifying and eliminating persistent patterns of inequality: Code , s. 3. The main way that the Tribunal furthers these purposes is through its public decisions: Famous Players at para. 14.
[13] The Tribunal has discretion to limit publication of identifying information where a person can show their privacy interests outweigh the public interest in full access to the Tribunal’s proceedings: Rule 5(6); Stein v. British Columbia (Human Rights Tribunal), 2020 BCSC 70 at para. 64(a). The Tribunal may consider factors like the stage of the proceedings, the nature of the allegations, the nature of the private details in the complaint, harm to reputation, or any other potential harm: JY at para. 30. It may also consider whether the proposed limitation relates to only a “sliver” of information that minimally impairs the openness of the proceeding: CS v. British Columbia (Workers’ Compensation Appeal Tribunal), 2019 BCCA 406 at para. 37. It is not enough to assert that a person’s reputation may be tarnished: Stein at para. 64(c).
[14] In some cases, the fact that it is the party who brought the complaint that seeks anonymization may weigh against granting it: Low v. Mackinnon and Registered Nurses’ Association of BC , 2004 BCHRT 347 at para. 8; Ferri v. Society of Saint Vincent de Paul and another (No. 2) , 2017 BCHRT 263 at para. 9. However, which party brings the anonymization application is not determinative.
[15] SH argues that his personal information should not be published in the Tribunal’s decisions because his mental health conditions are likely to come up in the hearing of his complaint, as they relate to the issues of adverse impact on his health and the determination of an appropriate remedy, and the publication of this information would cause him harm, embarrassment and stress. Specifically, SH says the publication of his name in association with his sensitive mental health conditions is likely to have a negative impact on his credibility and reputation. SH says he has a history of advocating for others and would like to do so again in the future. He also wishes to engage in volunteer work when his health permits.
[16] The Tribunal has recognized the legitimate privacy interests at stake in protecting an individual’s private medical information: JY at para. 30. In particular, the Tribunal has previously anonymized complaints when that medical information relates to a mental illness that may be associated with stigma or stereotypes that could expose an individual to harm: XP obo JR v. The Hospital and others , 2018 BCHRT 4 at para. 5; see also DD v. The Hotel and others , 2020 BCHRT 109 at para. 28; The Worker v. The Society and others , 2020 BCHRT 98 at paras. 3-4.
[17] I accept that alcohol use disorder is a mental disability that is associated with stigma or stereotypes that could expose the complainant to harm if publicly disclosed. The Tribunal has previously recognized that there is social stigma associated with addiction generally, and alcohol use disorder specifically: Senyk v. WFG Agency Network (No. 2) , 2008 BCHRT 376 at para. 279; The Pharmacist v. College of Pharmacists of British Columbia and another , 2024 BCHRT 291 at para. 222. People with substance use issues “may be stereotyped as morally blameworthy, untrustworthy, and prone to criminality”: RR v. Vancouver Aboriginal Child and Family Services Society (No. 6) , 2022 BCHRT 116 at para. 349. The Tribunal has said the stigma associated with addiction can be sufficient to warrant providing a complainant with some level of medical privacy while ensuring public access to the substance of the matter before the Tribunal: K v. RMC Ready Mix and another , 2019 BCHRT 102 at para. 11. I give this factor significant weight in favour of limiting publication of the complainant’s identifying information.
[18] I agree with the Respondents that speculative harm will not ordinarily justify an order limiting publication. However, given the well-known stigma associated with at least one of the complainant’s mental disabilities, I do not accept that his claims amount to pure speculation: The Candidate v. Ernst & Young LLP , 2020 BCHRT 119 at para. 14. Here, I distinguish this case from those relied on by the Respondents, including Ng v. City of Vancouver (No. 2) , 2024 BCHRT 228, where there was no information about any stigma associated with the complainant’s particular mental disabilities or how harm to reputation could manifest in those circumstances.
[19] This complaint can be further distinguished from Ng because the Tribunal has not published any interim decisions containing SH’s personal information, which gives the limitation of publication greater utility in these circumstances.
[20] I am also not persuaded by the Respondents’ argument that the complainant’s mental health is not relevant to the complaint, which alleges discrimination based on age, and there is no reason this private information should arise in any published material. I am unable to reach the same conclusion prior to a full hearing of the merits of this complaint. SH says the decline of his mental health is related to the claims process which is at the heart of this complaint. The parties interpret the Psychological Assessment on file differently with respect to whether his claim of causality between the claims process and his mental health disabilities is supported. Nevertheless, SH says his private medical information will likely be presented at the hearing to illustrate the impact on his health and support his position for an appropriate remedy in the event his case of discrimination is made out. Accordingly, I am not persuaded at this time that the complainant’s private medical information will not be published in the Tribunal’s final decision.
[21] I am satisfied that the public’s interest in access to the Tribunal’s proceedings can be preserved in this case by publishing decisions without identifying SH, and that SH’s interest in preserving his medical privacy in particular warrants limiting publication of his name in this manner.
IV CONCLUSION
[22] Given that this complaint involves personal details of the complainant’s mental health conditions, which could reasonably expose SH to stigmatization, I err on the side of protecting his identity. Once his privacy is invaded, “it can seldom be regained”: R v. O’Connor , [1995] 4 SCR 41 at para. 119. This order only applies to a sliver of information and minimally impairs public access to this proceeding.
[23] I order as follows:
a. In any document which it makes available to the public, the Tribunal will refer to the complainant as “SH”.
b. No person may publish information which could identify the complainant in connection with this complaint.
Theressa Etmanski
Tribunal Member