Patsa obo others v. BC Ministry of Health and another (No.3), 2026 BCHRT 135
Date Issued: June 3, 2026
File: CS-006011
Indexed as: Patsa obo others v. BC Ministry of Health and another (No.3), 2026 BCHRT 135
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:
Eleni Patsa obo individuals who have been identified as higher-risk for severe Covid 19 et al
COMPLAINANT
AND:
Fraser Health Authority and His Majesty the King in Right of the Province of British Columbia as represented by the Ministry of Health
RESPONDENTS
REASONS FOR DECISION
ADMISSIBILITY OF EVIDENCE, APPLICATION FOR DISCLOSURE,
APPLICATION FOR COSTS
Sections 27.2 and 37(4); Rule 4(3) and 20
Tribunal Member: Devyn Cousineau
Counsel for the Complainant: Aleem Bharmal, KC
Counsel for the Fraser Health Authority: Alon Mizrahi and William Kunimoto
For the Ministry of Health: No submissions
I INTRODUCTION
[1] Fraser Health Authority [FHA] applies for orders that:
a. The Complainant’s evidence relating to members of the class is inadmissible in its outstanding dismissal application; or
b. If the evidence is admissible, then:
i. the Complainant must disclose further medical records for the class members; and
ii. the Complainant must pay $5,000 as costs for improper conduct under s. 37(4) of the Human Rights Code.
[2] For the reasons that follow, I find that the Complainant’s evidence relating to class members is admissible and forms part of the response to the dismissal application. I order further disclosure of the class members’ medical records, and $500 in costs.
[3] To make my decision, I have considered all the parties’ submissions, including – on a one-time basis – FHA’s arguments exceeding the Tribunal’s page limit: Rule 28(7). I do not grant the Complainant’s application to file further submissions to address the new, escalated, allegation that the Complainant’s counsel had engaged in “sharp practice”: Rule 28(5). The further submission is not necessary because I have not found any merit to that allegation.
II Background
[4] Dr. Patsa filed this complaint on January 25, 2023. Her complaint alleges that FHA discriminated against a class of people by banning the use of N95 respirators in hospitals, which she alleges exposed the class to greater risk of contracting SARS-CoV-2.
[5] On July 25, 2023, the Tribunal allowed the complaint to proceed on behalf of a class defined as people who
a) have been identified as higher-risk for severe COVID-19 based on a variety of factors that includes age, comorbidities, underlying conditions, current/prior medical history, and eligibility for vaccination; and
b) need healthcare and require access to a hospital, in areas served by the Fraser Health Authority, and
c) choose to wear an N95 respirator as protection from infection by an airborne pathogen such as SARS-Cov-2 in congregate settings; and
d) are asked to remove said respiratory protection in order to access the healthcare they need.
[Class]
[6] Before it filed its response, FHA applied for an order that the Complainant particularise (1) which FHA policy was the subject of the complaint, and (2) how Dr. Patsa is a member of the Class. The Tribunal denied the application for particulars: Patsa obo others v. Fraser Health Authority, 2024 BCHRT 36 [Particulars Decision]. In the course of that process, Dr. Patsa clarified that she is not a member of the Class: Particulars Decision at para. 20.
[7] FHA filed its response on March 13, 2024. Among other things, it took the position that there were no facts to establish that it discriminated against any member of the Class.
[8] On June 10, 2025, the Tribunal determined that it may further the just and timely resolution of the complaint to allow FHA to apply for dismissal of all or part of the complaint under ss. 27(1)(b) and/or 27(1)(c) of the Code. FHA requested permission to also apply for dismissal under ss. 27(1)(a) and (d)(ii), on the bases that the Tribunal does not have jurisdiction over a class complaint where the complainant does not identify any members of the class. On June 12, 2025, the Tribunal allowed FHA to apply under s. 27(1)(d)(ii) but not 27(1)(a) of the Code. FHA applied for reconsideration, which was denied: Patsa obo others v. Fraser Health Authority, 2025 BCHRT 176.
[9] FHA filed its dismissal application on August 28, 2025. Among other things, it argues that the complaint should be dismissed because Dr. Patsa has not produced evidence “of a single class member”.
[10] In January 2026, the Complainant disclosed – for the first time – medical records from three members of the Class. The Complainant then relied on evidence relating to these Class members in her response to the dismissal application, filed February 13, 2026 [Class Members’ Evidence]. FHA objects to the Tribunal considering this evidence.
III Admissibility of Class Members’ Evidence
[11] FHA argues that it would be procedurally unfair to admit the Class Members’ Evidence in the dismissal application, because doing so would create a “moving target” and expand the scope of the complaint. It also argues that admitting the Class Members’ Evidence would create a “loophole” in the Tribunal’s Case Path Pilot.
[12] To begin, and with respect, I do not understand FHA’s “loophole” argument. A complainant has always been permitted to add particulars or apply to amend their complaint while a dismissal application was outstanding. That is what has happened here. FHA does not cite any authority for its proposition that, before the Case Path Pilot, applications to amend a complaint during a dismissal application were “likely not to be successful”, and I am not aware of any.
[13] Admitting the Class Members’ Evidence is not procedurally unfair to FHA. The Tribunal has long recognized that “it is not uncommon, or a violation of the Rules, for a complainant to add new particulars of their complaint in response to an application to dismiss”: Kirchmeier obo others v. University of British Columbia (No. 4), 2021 BCHRT 149 at para. 10. Parties regularly dispute whether new information in a complainants’ response to a dismissal application constitutes particulars or new allegations requiring an application, and the Tribunal addresses those arguments when it decides the dismissal application: Powell v. Morton, 2005 BCHRT 282 at para. 20. Though FHA references its earlier application for particulars, I note that it did not apply for particulars about members of the Class beyond Dr. Patsa. FHA will have a full opportunity to address the Class Members’ Evidence in its reply. If necessary, it may apply for a page limit extension to do so.
[14] I appreciate, and agree, that the timing of the Complainant’s disclosure regarding the Class Members has made the process less efficient for the Tribunal and the parties. The Complainant has long been on notice of FHA’s position that the complaint should be dismissed because there were no members of the Class. Had the Complainant disclosed the Class Members’ Evidence earlier, the dismissal application could have been narrowed or bypassed altogether. As it stands, the application may be prolonged as FHA addresses the Class Members’ Evidence for the first time in reply, potentially necessitating an application for further submissions. I address the impacts of this late disclosure below, when I consider FHA’s application for costs.
[15] However, the remedy for this inefficiency is not to find the Class Members’ Evidence inadmissible. This would undermine the just resolution of the complaint on its merits. On its face, the Class Members’ Evidence particularizes Dr. Patsa’s allegation of discrimination arising from FHA’s mask policy: Kirchmeier (No. 4) at para. 12. It is evidence that is both necessary and appropriate for the resolution of the application on its merits.
[16] FHA has not identified a basis on which I am prepared to find the Class Members’ Evidence is inadmissible in the dismissal application. This aspect of the application is denied.
IV Application for disclosure
[17] Parties in the Tribunal’s process are required to disclose all documents in their possession or control that may be relevant to the complaint or response to the complaint: Rules of Practice and Procedure, Part 6. The purpose of disclosure is to “provide a fair opportunity for parties to prepare their case and to make full answer and defence”: Smith v. Provincial Health Services Authority, 2014 BCHRT 223 at para. 18.
[18] Where medical issues are in dispute, a complainant may be required to disclose arguably relevant medical records which engage their privacy interests: Gichuru v. The Law Society of British Columbia, 2007 BCSC 1767 at para. 89. That intrusion into privacy, however, is only warranted where records are arguably relevant to a fact reasonably in dispute: Gichuru at paras. 114-131; Gill v BC (Ministry of Justice and others), 2016 BCHRT 32 at para. 27.
[19] FHA applies for disclosure of four categories of medical records for each of the three Class members now identified in the Complainant’s response to the dismissal application. The Complainant opposes further disclosure, on the basis that she has already disclosed the only records that may be relevant for each Class member: (1) the dates they attended at FHA facilities during the period when the policy was in place; (2) any diagnosis causing them to be at higher risk for severe COVID-19; and (3) any notation of a dispute regarding taking off an N95 respirator and putting on a medical mask.
[20] The burden is on FHA to establish the basis for disclosure. I consider each of its requests in turn.
A. Unredacted hospital attendances in the Fraser Health region dating from January 26, 2021 to January 26, 2023
[21] FHA argues that these records are relevant to whether the Class members experienced any delay or denial of care at FHA-run hospitals during the period of the complaint, and/or whether they contracted COVID-19 as a result of the requirement to wear the hospital’s medical mask.
[22] I agree that these records may be relevant. The complaint is about Class members’ access to medical services in facilities operated by FHA. The Complainant alleges that members of the Class were denied or forced to forego medical treatment as a result of FHA’s policy. FHA disputes this. Records relating to the Class members’ attendances, and treatment, at FHA hospitals are relevant to the live issue about whether, and how, the Class members were able to access FHA services during the period of the complaint. The request is proportionate and would, in my view, further the just and timely resolution of the complaint. I order that they be disclosed.
B. Unredacted records of treating physicians and specialists who have treated the Class member for reasons that make them higher-risk for severe COVID-19
[23] FHA argues that these records are relevant to whether the Class members meet the first criteria for membership in the Class: “identified as higher-risk for severe COVID-19 based on a variety of factors that includes age, comorbidities, underlying conditions, current/prior medical history, and eligibility for vaccination”. It argues, further, that these records are relevant to whether the Class members’ disabilities prevented them from wearing the medical masks provided by the hospitals.
[24] In my view, this request is too broad. It goes beyond records that may be relevant to the issues that FHA has identified in the complaint, and has no apparent time limit. That said, I agree with FHA that records relating to the first criteria of Class membership, and whether members of the Class could be adequately protected by medical masks supplied by FHA, may be relevant and must be disclosed. Accordingly, I order that the Complainant disclose a narrower category of medical records for the Class members, specifically:
Records of treating physicians and specialists between January 26, 2021 and January 26, 2023, which relate to:
(1) the medical conditions that make the Class member higher-risk for severe COVID-19, or
(2) any medical reasons that the Class member would not be adequately protected from COVID-19 while wearing a medical mask supplied by FHA.
C. Unredacted family physician records inclusive of 2 years prior and 2 years subsequent to the dates of the alleged discrimination; and MSP and Pharmanet printouts inclusive of 2 years prior and 2 years subsequent to the dates of the alleged discrimination.
[25] As I understand it, FHA’s arguments respecting these records are largely the same as the previous category. Regarding MSP/Pharmanet printouts, I understand that FHA argues that these are relevant to the Class members’ claim that they were denied access to health care because of FHA’s policy regarding medical masks.
[26] Both of these final requests are far too broad –in subject matter and in time. In my view, any arguably relevant records from the family physician(s), MSP, or Pharmanet will be captured by my orders under Categories A and B. I am not persuaded that all records relating the Class members’ access to health care may be relevant. The issue in the complaint concerns whether they were able to access health care in FHA hospitals subject to the impugned policy – not whether they were able to access health care anywhere else.
[27] I deny these requests for disclosure.
V Application for costs
[28] Section 37(4) of the Code gives the Tribunal discretion to award costs when a party has engaged in improper conduct during the course of a complaint. Improper conduct includes any conduct which has a significant impact on the integrity of the Tribunal’s processes, including conduct which has a significant prejudicial impact on another party: McLean v. B.C. (Min. of Public Safety and Sol. Gen.) (No. 3), 2006 BCHRT 103 at para. 8.
[29] FHA argues that the Complainant engaged in improper conduct by failing to disclose the Class Members’ Evidence until filing her response to the dismissal application, and by making repeated requests for extensions which FHA submits were “subversive”.
[30] At the outset, I do not agree with FHA that there was anything improper about the Complainant’s requests for extensions. I accept at face value Mr. Bharmal’s explanation that those extensions were necessitated by the ongoing effects of a serious car accident suffered by the Complainant’s legal counsel. There is no evidence to support that the requests were subversive or for an ulterior motive. There is no evidence to support an allegation of “sharp practice”.
[31] However, I do agree that the timing of the Complainant’s disclosure of medical records relating to the Class Members’ Evidence has prejudiced FHA and impacted the integrity of this proceeding.
[32] The Tribunal set deadlines for the parties to exchange relevant documents in February 2024. The parties’ disclosure was due on May 10, 2024. The Tribunal intentionally sets disclosure deadlines before it determines whether to allow a dismissal application. Among other things, this ensures that the parties have all arguably relevant documents before a dismissal application is filed: Jasaitis v. Corporation of the District of West Vancouver and another, 2025 BCHRT 299 at para. 155. Respondents can decide whether to file an application (if permitted) and on what basis. Complainants can defend their complaint with the benefit of a full record. Timely disclosure furthers the just and efficient resolution of the application based on all the available evidence.
[33] The Complainant has been aware throughout this process that the existence and circumstances of Class members was a key issue in the complaint. She should have gathered and disclosed relevant records relating to Class members before her disclosure deadline. She has not offered any explanation for why she did not. To the contrary, her submission seems to suggest that the search for Class members and their records began in the fall of 2025 – potentially in response to the dismissal application. This suggests that she was not diligently fulfilling her disclosure obligations from the outset of the complaint.
[34] I agree that the circumstances here are similar to Jasaitis. In Jasaitis, the Tribunal found that the complainant had engaged in improper conduct when she failed to disclose recordings that were clearly relevant to the complaint. The recordings only came to the respondent’s attention in the complainant’s response to the dismissal application, and were only disclosed after the respondents filed an application. The Tribunal found that the late disclosure deprived the respondents of highly relevant information when they were formulating their dismissal applications and resulted in “needless inefficiency; a waste of the [Respondents’] and Tribunal’s resources; and a delayed resolution of this complaint, and, in turn, others”: paras. 157-158.
[35] Likewise here, the late and partial disclosure relating to three Class members after the dismissal application was filed has deprived the FHA of the opportunity to shape its dismissal application with the benefit of all relevant information. It has temporarily diverted the parties’ and Tribunal’s resources away from the dismissal application to the adjudication of this application. Its impact on the dismissal application is not yet entirely clear, but it is reasonable to assume that it may complicate the process as FHA is required to respond to the new evidence for the first time in its reply. I am satisfied that this conduct has impacted the integrity of the process and warrants rebuke.
[36] FHA argues that an award of $5,000 is appropriate. In my view, that is too high.
[37] Though I have accepted that the late disclosure impacted the process, its impact is not equivalent to the circumstances in RR v. Vancouver Aboriginal Child and Family Services Society (No. 6), 2022 BCHRT 116. In RR (No. 6), the respondent disclosed highly relevant documents after the complainant had closed her case and after several of its key witnesses had testified. The late disclosure significantly delayed the resolution of the complaint. In addition, the respondent had engaged in further improper conduct related to coaching its witnesses: para. 441. It was in those circumstances that the Tribunal awarded $5,000.
[38] The circumstances here, as I have said, are more akin to Jasaitis, where the Tribunal ordered $1,500 to two respondents ($1,000 and $500 respectively). In another similar case, the Tribunal ordered $500 in costs where the respondent failed to disclose documents until after the complainant responded to the dismissal application: Vollans v. YWCA Metro Vancouver, 2019 BCHR 39. In a third case cited by FHA, the Tribunal ordered $750 in costs where a complainant refused to comply with a Tribunal order regarding disclosure: A and B obo Infant A v. School District C (No. 2), 2017 BCHRT 193. In my view, that conduct is more egregious than the Complainant’s conduct here, where there has been no deliberate refusal to follow an order. In saying this, I repeat that I see no basis to conclude that the Complainant’s counsel acted deliberately to “subvert” the process by asking for extensions during the period that they were gathering documents for disclosure.
[39] In all the circumstances, I find that an award of $500 is sufficient to recognize the impact of the conduct and signal the Tribunal’s condemnation. I order the Complainant to pay FHA $500 as costs under s. 37(4) of the Code.
VI Conclusion and next steps
[40] The dismissal application will continue to be held in abeyance pending the Complainant’s compliance with my disclosure order and the Tribunal’s decision about whether to allow the Ministry to file its own dismissal application.
[41] In the meantime, I order the Complainant to:
a. Promptly pay FHA $500 as costs under s. 37(4) of the Code, and
b. By July 2, disclose the following records respecting the three Class members:
i. Unredacted hospital attendances in the Fraser Health region between January 26, 2021 to January 26, 2023, and
ii. Records of treating physicians and specialists between January 26, 2021 and January 26, 2023, which relate to:
1. any medical conditions that make the Class member higher-risk for severe COVID-19, or
2. any medical reasons that the Class member would not be adequately protected from COVID-19 while wearing a medical mask supplied by FHA.
[42] The parties may agree to extend the deadline for disclosure if necessary.
Devyn Cousineau
Vice Chair