Hudson v. Roto-Rooter and another, 2026 BCHRT 10
Date Issued: January 7, 2026
File: CS-004544
Indexed as: Hudson v. Roto-Rooter and another, 2026 BCHRT 10
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:
Derek Hudson
COMPLAINANT
AND:
Roto-Rooter and Ken Seinen
RESPONDENTS
REASONS FOR DECISION
APPLICATION TO DISMISS A COMPLAINT
Section 27(1)(c)
Tribunal Member: Edward Takayanagi
On their own behalf: Derek Hudson
Counsel for the Respondents: Thomas F. Beasley
I INTRODUCTION
[1] Derek Hudson filed a complaint alleging his former employer, Roto-Rooter, and its director, Ken Seinen, discriminated against him in employment on the basis of a mental disability contrary to s. 13 of the Human Rights Code. Specifically, he says that when he was suffering from a concussion, the Respondents terminated his employment.
[2] The Respondents deny discriminating and apply to dismiss this complaint under s. 27(1)(c) of the Code on the basis that there is no reasonable possibility the complaint will succeed. They argue that the complaint has no reasonable prospect of success because Mr. Hudson cannot establish the elements of his case. They say Mr. Hudson never disclosed that he had a concussion and, even if he did, a concussion is not a disability for the purposes of the Code. They further say that they fired Mr. Hudson wholly for non-discriminatory reasons, his poor job performance.
[3] To decide this application, I must decide whether there is no reasonable prospect Mr. Hudson will establish that he had a physical disability and that his disability was a factor in the termination of his employment. I consider whether the evidence before me takes the complaint out of the realm of conjecture. For the following reasons, I find it does not. I allow the application.
[4] Mr. Hudson did not respond to the application. The Tribunal set a schedule for submissions by a letter dated May 24, 2024. Mr. Hudson did not file a response to the application by the deadline of August 2, 2024. On August 30, 2024, the Tribunal, on its own initiative, extended the deadline for a response to September 6, 2024. Mr. Hudson did not respond to the dismissal application. Instead, he wrote the Tribunal on September 4, 2024, stating he will need more time. The Tribunal did not grant an extension and informed Mr. Hudson that he could file an application to request permission to late file a response. Mr. Hudson did not file an application to late file, nor did he respond to the dismissal application. In these circumstances, I am satisfied that Mr. Hudson had notice of the dismissal application and had an opportunity to respond. I find there is no unfairness in making this decision on the materials before me.
[5] 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
[6] The following undisputed facts are taken from the parties’ materials.
[7] Mr. Hudson was employed by Roto-Rooter as a service technician.
[8] On July 18, 2021, Mr. Hudson was scheduled to be the emergency on-call service technician. Mr. Hudson was required to be available for jobs. On the same day, a dispatcher at Roto-Rooter attempted to contact Mr. Hudson for an emergency job by phoning and texting him but received no response. Mr. Hudson’s unexplained absence was reported to Mr. Seinen.
[9] On July 19, 2021, Mr. Seinen went to Mr. Hudson’s home to find him. Mr. Hudson was not home. Mr. Hudson’s daughter advised Mr. Seinen that Mr. Hudson had not been home since July 17, 2021.
[10] On July 20, 2021, Mr. Seinen contacted Mr. Hudson’s father attempting to locate Mr. Hudson. Mr. Hudson’s father said he did not know where Mr. Hudson was.
[11] Later that day, Mr. Hudson phoned Mr. Seinen and said he would be ready to work the following day. Mr. Hudson did not mention that he had a concussion or any other injury or disability.
[12] On July 21, 2021, Mr. Seinen delivered a letter to Mr. Hudson terminating his employment with Roto-Rooter.
III DECISION
[13] The Respondents seek to dismiss this complaint under s. 27(1)(c) because there is no reasonable prospect that Mr. Hudson could establish that he has a disability. I am satisfied, on a review of the whole of the materials before me, that this is the case.
[14] Section 27(1)(c) is part of the Tribunal’s gate-keeping function. It allows the Tribunal to remove complaints which do not warrant the time and expense of a hearing. The Respondents bear the burden on this dismissal application. To succeed, they must persuade me that Mr. Hudson’s complaint has no reasonable prospect of success at a hearing.
[15] The Tribunal does not make findings of fact under s. 27(1)(c). Instead, the Tribunal looks at the evidence to decide whether “there is no reasonable prospect that findings of fact that would support the complaint could be made on a balance of probabilities after a full hearing of the evidence”: Berezoutskaia v. British Columbia (Human Rights Tribunal), 2006 BCCA 95 at para. 22, leave to appeal ref’d [2006] SCCA No. 171. The Tribunal must base its decision on the materials filed by the parties, and not on speculation about what evidence may be filed at the hearing: University of British Columbia v. Chan,2013 BCSC 942 at para. 77. It is up to the parties to give the Tribunal the information necessary for it to make a decision: Bell v. Dr. Sherk and others, 2003 BCHRT 63 at paras. 25-26.
[16] At a hearing, Mr. Hudson would have to establish that he has a disability, that the Respondents treated him adversely, and that the adverse treatment was connected to his disability: Moore v. BC (Education), 2012 SCC 61 at para. 33. Mr. Hudson is not required to prove the complaint at this time; rather, the evidence must take the complaint “out of the realm of conjecture”: Berezoutskaia at para. 24.
[17] Whether a particular condition constitutes a disability within the meaning of the Code is a fact specific inquiry based on the circumstances of each case: Young v. Vancouver Coastal Health Authority and others, 2018 BCHRT 27 at para. 100. The concept of physical disability generally indicates a physiological state that is involuntary, has some degree of permanence, and impairs the person’s ability, in some measure, to carry out the normal functions of life: De Medeiros v. Rovalution Automotive Ltd. and another, 2023 BCHRT 182 at para. 23.
[18] The Tribunal has said that it is not necessary that a disability be permanent for it to constitute a disability for the purpose of the Code. The Code’s protection also extends to persons who suffer from temporarily disabling medical conditions: Goode v. Interior Health Authority, 2010 BCHRT 95. In other Tribunal cases where a complainant alleged disability, the Tribunal accepted as evidence of disability, the complainant’s own evidence of his medical condition and how it impacts his daily life, proof of disability benefits, approval of short or long-term disability support, and medical evidence: Wali v. Jace Holdings, 2012 BCHRT 389.
[19] The Respondents argue Mr. Hudson has no reasonable prospect of proving he has a physical disability. They say he has not taken the allegation of disability out of the realm of conjecture. They argue that he has not provided any proof of a disability, did not advise them he was suffering from a disability at any time, and the Respondents did not perceive him to have a disability.
[20] The evidence before me on the issue of disability is limited. The materials before me is limited to what Mr. Hudson set out in his complaint form, and the application materials filed by the Respondents. In his complaint form Mr. Hudson says he suffered a concussion and that he “did not know what was going on for 2 days”. There is no evidence before me concerning the impact of the concussion on Mr. Hudson’s ability to carry on the normal functions of life, or its continued impact on his life.
[21] Even on the low threshold required at this stage, Mr. Hudson’s evidence based on the limited information in his complaint is not sufficient to take his claim of disability out of the realm of conjecture. On the factors that the Tribunal considers in determining whether an allegation of disability is out of the realm of conjecture there is no evidence other than Mr. Hudson’s assertion that there was a particular effect of the concussion for two days.
[22] Further, because Mr. Hudson did not respond to the dismissal application, the undisputed evidence before me is that Mr. Hudson did not inform the Respondents that he had a concussion or that it was a factor in his absence. Based on the evidence I am persuaded that the Respondents are reasonably certain to prove that Mr. Hudson did not disclose his disability. There is no evidence that Mr. Hudson told the Respondents that his absence was related to a disability, or that they could have reasonably been aware it was connected to a disability.
[23] Accordingly, because Mr. Hudson’s assertion that he has a disability, and that his disability was a factor in his firing has not been taken out of the realm of conjecture, I am satisfied that there is no reasonable prospect Mr. Hudson will prove his case at a hearing.
IV CONCLUSION
[24] The application to dismiss is granted. The complaint is dismissed.
Edward Takayanagi
Tribunal Member