Rogers v. Canada Life Assurance Company/Great West Life Assurance Company (No.2), 2026 BCHRT 194
Date Issued: September 10, 2026
File: CS-001398
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:
Lorelei Rogers
COMPLAINANT
AND:
Canada Life Assurance Company/Great West Life Assurance Company
RESPONDENT
REASONS FOR DECISION
Tribunal Member: Christopher J. Foy
On their own behalf: Lorelei Rogers
Counsel for the Respondent: Zara Kadhim
I INTRODUCTION
[1] Dr. Lorelei Rogers filed a complaint against the Health Employers Association of British Columbia [HEABC] and Great West Life Assurance Company. Great West Life Assurance Company became, and will be referred to in this decision as Canada Life Assurance Company [Canada Life]. At the material time Dr. Rogers received long-term disability [LTD] benefits from an insurance plan that HEABC supported and Canada Life administered.
[2] Dr. Rogers’ complaint included numerous allegations about how HEABC set up the insurance plan and how she was treated by Canada Life. Dr. Rogers alleged that both HEABC and Canada Life discriminated against her based on mental disability contrary to the Human Rights Code [Code].
[3] Dr. Rogers’ amended complaint at page 58, paragraphs 132-133 sets out the following allegation:
132. On or around July 2019 Great West Life issues another demand for information that I am still disabled. I must complete the forms again. I must get my Dr. to complete the forms again. I object to Great West Life Assurance. They already have the information from Service Canada that states I am severely and permanently disabled from any work, yet they require that I complete these forms again. This action by Great West Life Assurance is punitive and traumatic and discriminatory for disability.
133. I am given 4 demand letters from Great West Life Assurance, produce the forms or your benefits will be terminated. I provide the forms by the due date of October 31, 2019.
[4] HEABC and Canada Life filed an application to dismiss Dr. Rogers’ complaint. In Rogers v. Canada Life Assurance Company and another, 2024 BCHRT 308, [ATD Decision] the Tribunal addressed Dr. Rogers’ complaint under s.13 of the Code at paras. 65-67. I adopt the Tribunal’s reasoning to consider the matter under s.13 instead of s.8 of the Code. I am satisfied that it is appropriate to consider the complaint under s. 13. There are no objections to proceeding this way and both parties have continued to argue this case on that basis.
[5] Dr. Rogers’ complaint against HEABC was dismissed and only one of Dr. Rogers’ allegations against Canada Life survived the dismissal application: the allegation that Canada Life discriminated against her by requiring her through repeated requests from July 2019 – September 2019, to prove that she remained disabled as a condition of receiving further LTD benefits [Proof of Disabilty Allegation].
[6] The Proof of Disability Allegation is the only matter before me. This hearing was conducted solely through written submissions.
[7] Dr. Rogers argues Canada Life’s periodic requirement to provide medical evidence that she remained disabled in order to continue receiving LTD benefits was punitive, traumatic and discriminatory.
[8] Dr. Rogers does not dispute that ongoing proof of disability is a legitimate requirement for continued LTD benefits. However, she says that Canada Life’s manner of requests, its rigid requirements and threats of cessation of benefits was harassment and failed to accommodate her disability.
[9] Canada Life denies harassing Dr. Rogers and denies discriminating against her. Canada Life argues that Dr. Rogers has provided no medical evidence her mental disability prevented her from complying with requests for proof of disability.
[10] In addition, Canada Life says it acted consistently with its obligation to accommodate. It communicated via regular mail, her preferred method. Canada Life gave Dr. Rogers time to comply with its requests for updated information. It offered to pay for physician costs for filling out the required medical form. Further, Canada Life accepted an incomplete form as well as accepted other medical information from Dr. Rogers in October 2019, advising her that no further medical documentation would be required for a period of two years.
[11] Finally, Canada Life relies on s. 13(3)(b) of the Code to dismiss Dr. Rogers’ complaint. Section 13(3)(b) sets out that a contravention of s. 13 does not apply as it relates to the operation of a bona fide employee insurance plan.
[12] While I do not refer in my decision to all the information filed by the parties in relation to this hearing, I have considered it and thank the parties for their respective submissions. The following will not be a complete recitation of the parties’ submissions, but only those necessary to come to my decision.
[13] The issues I must decide are:
i. whether Dr. Rogers has proved prima facie discrimination, referred to by the Tribunal as the complainant’s case; and if so
ii. whether Canada Life can establish a bona fide occupational requirement. This incorporates the question of whether Canada Life have satisfied their duty to accommodate Dr. Rogers; and if not
iii. whether Canada Life can establish s. 13 of the Code does not apply as this matter relates to the operation of a bona fide employee insurance plan.
[14] Below I first set out the background facts and I then set out my reasons for dismissing Dr. Rogers’ complaint.
II BACKGROUND
[15] HEABC established the Healthcare Benefit Trust [HBT]. The Trustees of the HBT created a disability plan which provides health insurance benefits to employees working in British Columbia’s public healthcare sector [Plan].
[16] The Plan is incorporated into the Provincial Collective Agreement between HEABC and the British Columbia Nurses’ Union. Dr. Rogers was a nurse, a member of the Union and covered by the Plan.
[17] Canada Life is a party to a Services Agreement with HBT. As a result of the Services Agreement, Canada Life adjudicates all LTD benefit claims under the Plan as per the terms of the Plan.
[18] In December 2014, Dr. Rogers stopped working as a nurse and submitted a claim for LTD benefits under the Plan on the basis of a mental health condition.
[19] The Plan at pages 9-10, contains a definition of disability an employee must meet to be entitled to LTD benefits:
Disability means:
(i) For the OWN OCCUPATION DISABILITY PERIOD: the Employee’s complete inability as a result of Sickness to perform the duties of his/her own occupation; or
(ii) For the ANY OCCUPATION DISABILITY PERIOD: the Employee’s inability as a result of Sickness to engage in any occupation or employment for which he/she is reasonably qualified by education, training or experience or may reasonably become so qualified for wages or compensation…
[20] Once an employee meets the definition of disability and is provided LTD benefits, the Plan requires that benefits are payable only while the employee is under the full-time care of a physician with treatment consistent with good medical practice: “LTD Benefits will be paid hereunder only while the Employee is under the full-time care of a Physician.”: Plan at p. 14.
[21] The Plan at page 9 also requires periodic proof of continued disability. A failure to provide proof when requested ends benefit entitlement under the Plan:
“Benefit Payment Period” means the period during an Employee’s Disability Period in which LTD Benefits are payable. The Benefit Payment Period shall commence on the date immediately following completion by the Employee of the Qualification Period and shall continue up to, and including, the earliest of:
(i) the last day on which he/she is no longer Disabled;
(ii) the date upon which he/she has been requested to but fails to provide proof satisfactory to the Trustee of his/her continued Disability;…
[22] On or about March 6, 2015, Canada Life accepted Dr. Rogers’ application for LTD benefits.
[23] When a disability claim becomes long-standing and the medical information indicates that the condition is stable or expected to continue, Canada Life transfers the file to “Maintenance” status.
[24] At some point Dr. Rogers’ disability claim was transferred to Maintenance. The evidence before me does not indicate exactly when but the transfer took place sometime between March 2015 and December 1, 2017.
[25] When a disability claim is in Maintenance, Canada Life requires claimants to complete two forms, typically once a year:
i. Form A, the Claimant’s Statement. This is to be filled out by the Claimant and requests an update on symptoms, treatment, functional capacity, any work or volunteer activity and other income details, including from the Canada Pension Plan [Form A]; and
ii. Form C, the Attending Physician’s Statement: This is to be filled out by the Claimant’s physician to provide updated medical information including treatment and prognosis [Form C]
[26] The evidence indicates that Canada Life had requested, and Dr. Rogers had completed Forms A and C prior to 2019.
[27] In January 2019, Dr. Rogers was granted Canadian Pension Plan Disability Benefits [CPPD]. Dr. Rogers CPPD benefits were retroactive to July 1, 2017.
[28] On February 14, 2019, Dr. Rogers advised Canada Life via phone that she was accepted for CPPD. Canada Life’s telephone log indicates the following note of the conversation:
…[Dr. Rogers] will not tell us the amount they are receiving as they do not want an offset. [Canada Life] explained how the plan works and that all income that [Dr. Rogers] receives that is disability income has to be offset from their LTD benefits and [Dr. Rogers] understands but advised that they will not be providing [Canada Life] with any info on that CPP and [Canada Life] can do whatever they want but they will not have their benefits deducted.
[29] The evidence indicates further correspondence between Canada Life and Dr. Rogers with respect to Canada Life requesting Dr. Rogers provide a copy of Service Canada’s decision letter to grant her CPPD.
[30] On March 20, 2019, Dr. Rogers provided the CPPD information to Canada Life.
[31] Under the provisions of the Plan at pages 12-13, any monies received through CPPD is offset from LTD. In Dr. Rogers’ case this resulted in an LTD overpayment of $21,329.70. Consequently, Canada Life began to deduct a portion of the LTD overpayment from future LTD payments to Dr. Rogers.
[32] Dr. Rogers was very upset that monies she received through CPPD would be offset from her LTD payments. Dr. Rogers requested Canada Life not deduct any monies from her LTD payments.
[33] On March 25, 2019, Canada Life advised it was unable to comply with her request to not have the CPPD overpayment deducted from her LTD payments.
[34] On May 6, 2019, Dr. Rogers filed a civil lawsuit against Canada Life regarding the CPPD offset from her LTD payments.
[35] On May 24, 2019, Dr. Rogers filed her original human rights complaint against HEABC and Canada Life.
[36] On June 12, 2019, Canada Life sent a letter to Dr. Rogers requesting her to complete Forms A and C. The June 12, 2019 letter advised the following:
This letter is in regard to your claim for Long Term disability benefits. As previously advised, your claim for disability benefits is subject to periodic review and to complete our review we require updated information.
Two forms are enclosed for completion. A Claimant’s Statement of Continuing Disability-Form A is to be completed by you. The Attending Physician’s Statement of Continuing Disability-Form C is to be completed by your doctor. You are responsible for paying any fees that may be charged for obtaining this information.
Please note you will need to contact Canada Pension Plan Services to obtain your gross monthly income amount for the current year requested. (emphasis original)
Please return the completed forms to our office. We will review your claim once we receive this information and will contact you if there is any change.
Thank you for your assistance. If you have any questions, please call our office at 1-888-292-4111.
[37] The series of correspondence set out below is the subject of the Proof of Disability Allegation.
[38] On July 8, 2019, Ms. Tessa Gilmor, Senior Legal Counsel at Canada Life, emailed Dr. Rogers the following:
Subject: Request for updated medical information
I have been sent a copy of the attached letter of June 12 from [Canada Life] to you and your response. Yes, please direct communications with [Canada Life] through me. Please have the attached forms [Forms A and C] completed and returned to me, as set out in the June 12 letter to you. Thank you.
[39] I do not have in evidence Dr. Rogers’ “response” to the June 12 Canada Life letter referred to in Ms. Gilmor’s email of July 8, 2019 above.
[40] On August 15, 2019, Ms. Gilmor emailed Dr. Rogers to follow up on the requested Forms A and C as they had not been received:
We look forward to receiving the completed forms sent to you June 12, July 8 and again today. They are needed in order to ensure you continue to be entitled to benefits under the Plan. Thank you.
[41] On or about September 10, 2019, Dr. Rogers sent a letter to Ms. Gilmor enclosing a Form A. The Form A did not have the Canada Pension Plan information filled out and instead Dr. Rogers indicated at the CPP section “Personal and Private Information. N/A”. In Dr. Rogers letter to Ms. Gilmor it states as follows:
I am now destitute as a result of [Canada Life] illegally garnishing my benefits to illegally integrate my CPPD. I have no daily routine other than to problem solve how to survive another day. I refuse to give up any more personal information as it is used against me to deny me benefits.
[42] On September 13, 2019 at 8:03 a.m., Ms. Gilmor, who was not yet in possession of Dr. Rogers’ September 10, 2019 letter, emailed Dr. Rogers the following:
I am following up again on [Canada Life’s] request for updated medical information. We have not received the forms A and C yet, which I attach for you again. This is our fourth request. You are under an obligation to provide updated medical evidence of disability in order to continue to receive benefits. If the completed forms have not been provided to me by October 31, 2019, [Canada Life] will not be able to continue to pay benefits.
[43] Dr. Rogers’ reply email on September 13, 2019 at 10:59 a.m. sets out, in part, the following:
I explained that the issues are very difficult for me to deal with. That I have been certified by Service Canada as having severe a [sic] prolonged disability that exceeds the definition of [Canada Life] and that I qualify for continuing benefits.
[Canada Life] insisted that I fill out the forms a third time. I explained that I have no funds as a result of the unlawful garnishment of [Canada Life] to illegally recover and integrate CPP benefits, again as a result of the actions of [Canada Life] by denying proper treatment, by continually traumatizing me by threatening to discontinue my main source of income, and that I am now destitute as a result of [Canada Life’s] Actions. [sic]
….
I have no funds to pay for the medical report that you require. I am also refusing to turn over more person information as [Canada Life] only uses it to continue to deny me benefits.
If you want more information, please ask and I will try to send medical information that I have on file. You may also request information from my Doctor. I give you permission to do so to ensure that I continue to qualify for benefits under the terms of the Plan.
I am permanently disabled with PTSD and ask for accommodation for mental disability. What that looks like is difficulty processing information, inability to review traumatizing events as they are debilitating for me and cause me to panic and devolve.
[44] Ms. Gilmor emailed Dr. Rogers a reply on September 13, 2019 at 1:17 p.m. as follows:
Ms. Rogers
Form A is to be completed by you, and should not involve any expenditure on your part. Please complete it and send it to me.
[Canada Life] is not requesting a medical report, but that a form be completed by your doctor (Form C).
Proof of disability must be provided in order for entitlement to the payment of benefits to continue. The terms of your Plan include the following:
“Benefit Payment Period” means the period during an Employee’s Disability Period in which LTD Benefits are payable. The Benefit Payment Period shall commence on the date immediately following completion by the Employee of the Qualification Period and shall continue up to, and including, the earliest of:
(iii) the last day on which he/she is no longer Disabled;
(iv) the date upon which he/she has been requested to but fails to provide proof satisfactory to the Trustee of his/her continued Disability;…
[45] Late on September 13, 2019, Dr. Rogers requested that future communication be via regular mail. Ms. Gilmor confirmed that she will only use regular mail to correspond with Dr. Rogers.
[46] On September 23, 2019, Ms. Gilmor having now received Dr. Rogers’ September 10, 2019 letter enclosing an incomplete Form A wrote to Dr. Rogers requesting a completed Form A.
[47] On October 7, 2019, Dr. Rogers wrote a letter responding to Ms. Gilmor’s September 23, 2019 letter. This letter was mailed on October 9, 2019. In it Dr. Rogers writes:
Thank you for contacting me by mail. I greatly appreciate the accommodation. I had an appointment with my Dr today regarding forms….She explained that she can get it done maybe in the next two weeks.
….
I have absolutely no control over how she responds, when she responds, when I am notified that she has responded, and it goes on….I struggle with no continuity of care and undiagnosed and untreated PTSD.
[48] Dr. Rogers enclosed in the October 7, 2019 letter a Psychiatric Report, Canada Student Loan Total Disability Certification, and a Certificate of Health Professional and Property Owner Form B.
[49] Apparently on September 30, 2019, Ms. Gilmor sent another letter to Dr. Rogers. This letter is not before me in evidence but is referred to and quoted in an October 12, 2019 letter from Dr. Rogers to Ms. Gilmor. Dr. Rogers’ October 12, 2019 letter states, in part, the following:
I have received your letter of September 30, 2019, yesterday, October 11, 2019.
Thank you for continuing to correspond by letter mail. It greatly helps me to control the amount of whatever I can control to reduce my autonomic response. Unfortunately, there is a significant delay in postal mail over email. Thank you again, for accommodating this delay….
I find [Canada Life’s] requirement to regularly provide proof of disability…abusive, discriminatory for disability, and just down right mean. In February of 2019 [Canada Life] was notified by Service Canada that I was approved for Canada Pension Disability Benefits. This benefit is approved for individuals such as myself who suffer from a severe, prolonged, likely to end in death, am not able to work period, kind of disability…And still [Canada Life] sends me regular letters stating: (quoting Ms. Gilmor’s September 30, 2019 letter)
“We continue to await proper completion of Form A, as well as Form C completed by your doctor. As stated in (multiple) previous correspondence, if the completed Forms are not provided by October 31 (actually the deadline is October 15 for suspension of monthly disability payments for who knows how long), then you leave [Canada Life] with no other option but to suspend payment of long term disability benefits to you while we await receipt of evidence of ongoing disability. This is not a step we would like to take, but you must understand that benefit payment can only continue upon receipt of proof of entitlement to benefits. The last time you provided medical evidence of ongoing disability was over a year ago.
Beyond correspondence fee, [Canada Life] is not aware of your doctor having charged for the completion of a form in the past. While there is no obligation on [Canada Life] to do so, it is prepared, on an exception basis, to pay up to $65 to your doctor for completion of Form C. Your doctor can send an invoice to [Canada Life] September 30, 2019, Tessa J. Gilmor, Senior Counsel.”
I cannot express the level of anxiety, panic, despair, and suicidal ideations that these words provide in me. In addition to the mental abuse, it is a physical response to stress that I have no control over. It is called “neurological involvement” as a result of untreated Post Traumatic Stress Disorder. The switch that turns on my flight or fight response and keeps me in a state of adrenaline rush, does not work. It misfires at the misinterpreted hint of stress.
….
Consider this my “Formal request for accommodation for severe, permanent, and life threatening mental disability.” In asking for accommodation, I request that you:
1. STOP the need to the annual request for confirmation of disability…
2. STOP the regular and sustained threats to terminate my benefits…
3. STOP setting deadline I and the system have absolutely no ability to meet…
4. STOP the one way communication process that is being used on me…
5. STOP illegally garnishing my monthly benefit so as to reduce it to $2,200 a month absent any income tax payable…
6. STOP making me feel the pain of not being able to provide for myself.
[50] Although I do not have the full text of Ms. Gilmor’s letter to Dr. Rogers dated September 30, 2019 in evidence, I accept the excerpt of it quoted in Dr. Rogers’ October 12, 2019 letter as accurate. Canada Life has not objected to its accuracy.
[51] On October 22, 2019, Dr. Rogers’ psychiatrist, Dr. Weitzner, filled out the Form C.
[52] On October 29, 2019, Dr. Rogers wrote to Ms. Gilmore as follows:
I am responding to your demand for current medical information. Despite having on your records information that I qualified for and am receiving Canada Pension Plan Disability benefits, as evidenced by the unlawful garnishment that we are in court over [Canada Life] continues to threaten to terminate my benefits by October 31, 2019 if I donot [sic] comply.
[Canada Life] states that they do not like to have to take this action but that they are forced into complying with the “Plan”….So I have attached several documents for your understanding.
[53] Ms. Gilmor wrote Dr. Rogers a letter on October 31, 2019, prior to being in receipt of Dr. Rogers’ October 29, 2019 letter where Dr. Rogers had attached two Form C’s.
[54] In Ms. Gilmor’s October 31, 2019 letter she advised Dr. Rogers that the material Dr. Rogers provided earlier in October, on or about October 7, 2019 (a Psychiatric Report, Canada Student Loan Total Disability Certification, and a Certificate of Health Professional and Property Owner Form B) were sufficient to update Dr. Rogers’ diagnosis, limitations, and prognosis. Consequently, Ms. Gilmor advised: “As a result, [Canada Life] does not need Form C completed this year.”.
[55] Further, Ms. Gilmor’s October 31, 2019 letter responded to Dr. Roger’s October 12, 2019 “Formal request for accommodation …” as follows:
1. Although annual medical updates are generally required from claimants, [Canada Life] is prepared to not ask for a further medical update from your doctor for two years from today.
2. There is no threat to terminate your benefits. Benefit payment will continue as outlined below, and as long as ongoing entitlement to benefits is provided, as per the terms of the Plan.
3. Deadlines are set to ensure efficient and fair administration of claim adjudication. [Canada Life] has provided you with much flexibility and many months to comply with requests it has had to make on multiple occasions.
4. Your treatment and what you need to get better is better discussed with your medical team.
5. The offsetting of the CPP disability overpayment and the CPP disability benefit is not illegal and will continue as set out below. This is the subject of the lawsuit you have started and there is nothing further [Canada Life] can say about it. You have our position.
[56] Canada Life did not suspend Dr. Rogers’ LTD benefits and paid those benefits without interruption until she retired in 2022. The only adjustments made to Dr. Rogers’ LTD payments were the CPPD offsets as per the requirements of the Plan.
III DECISION
[57] To prove her complaint, Dr. Rogers will have to demonstrate that she has the protected characteristic of mental disability, she was adversely impacted by Canada Life’s requests and requirement to fill out Forms A and C, and that her disability was a factor in the adverse impacts she experienced: Moore v. British Columbia (Education), 2012 SCC 61 at para. 33 [Moore].
[58] If Dr. Rogers proves these three elements, then the burden shifts to Canada Life to establish a bona fide occupational requirement: British Columbia (Public Service Employee Relations Commission) v. B.C.G.S.E.U. [1999] 3 S.C.R. 3 at para. 54 [Meiorin]. This test includes establishing that Canada Life discharged its duty to reasonably accommodate Dr. Rogers’ disability.
[59] If Canada Life meet their duty to accommodate, then there is no discrimination.
1. Mental Disability
[60] Dr. Rogers has provided medical evidence regarding her diagnosis of a mental disability. I agree with and adopt the Tribunal’s decision on this point in Rogers v. Canada Northern Shield Insurance Co. 2025 BCHRT 99 at para. 58:
Based on the whole of the evidence before me, it is difficult to precisely define Dr. Rogers’ disabilities. It seems likely they are a combination of mental health disabilities like anxiety and PTSD, and related physical symptoms. Though I have some hesitancy about the correct diagnoses, I am satisfied that Dr. Rogers has some mental health conditions that are serious and persistent and create barriers to her full participation in certain areas of social life: Morris v. BC Rail, 2003 BCHRT 14 at para. 214; Québec (Commission des droits de la personne et des droits de la jeunesse) v. Boisbriand (City), 2000 SCC 27 at para. 82. In this case, this is sufficient to engage the Code’s protection against discrimination based on disability.
[61] Based on the evidence before me, I am satisfied that Dr. Rogers has met the first part of the Moore test. I find Dr. Rogers has a mental disability engaging the Code’s protection.
2. Adverse Impact
[62] Dr. Rogers argues that she has suffered an adverse impact as a result of Canada Life’s:
i. escalation from case management to legal enforcement, use of Canada Life legal counsel for communication;
ii. repeated demands for proof of disability under the treat of benefit cessation akin to harassment;
iii. rigid enforcement of deadlines despite known disability-related barriers; and
iv. refusal to accommodate explicit requests
[63] Dr. Rogers also makes arguments of adverse impact that are beyond the scope of the Proof of Disability Allegation and not properly before me, including chronic income insecurity leading to bankruptcy and an allegation of forced resignation.
[64] Addressing Dr. Rogers’ arguments of adverse impact, I do not agree that Canada Life’s decision to have their legal counsel, Ms. Gilmor, correspond with Dr. Rogers to be an adverse impact. It was reasonable for Ms. Gilmor to be the contact person at Canada Life given that Dr. Rogers had filed a civil claim in May 2019 as well as her human rights complaint.
[65] With respect to Dr. Rogers’ characterization of the repeated requests to fill out Forms A and C as a form of harassment, I disagree with that characterization.
[66] There is no evidence which supports a finding Canada Life harassed Dr. Rogers by repeatedly requesting that Forms A and C be filled out. While I recognize that Dr. Rogers may have perceived these letters as harassment, objectively this is not the case.
[67] Although the Code does not define “harassment”, I find the definition of harassment set out in the Ontario Human Rights Code, R. S. O. 1990, c. H.19 at s.10(1) of assistance:
“harassment” means engaging in a course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome
[68] Dr. Rogers bears the burden of proving the repeated requests for Forms A and C were harassment. A finding of harassment can only be made if there is objective evidence to support the claim.
[69] From a review of Canada Life’s correspondence from July 8, 2019 – through to September 30, 2019 requesting completion of Forms A and C, I find there is no harassment.
[70] Canada Life was not engaged in any vexatious conduct. They were not objectively hostile, demeaning, oppressive or threatening. Canada Life’s communications, in my view, were professional.
[71] Even if I were to view Canada Life’s correspondence as cold, harsh, insensitive, I agree with the Tribunal’s comments in Rafuse v. British Columbia (Ministry of Tourism), 2000 BCHRT 42 at para. 129 that “…simply being treated poorly is not discriminatory.”
[72] As explained in Brito v. Affordable Housing Societies and another, 2017 BCHRT 270 at para. 41:
However, not every negative comment that is connected to a protected characteristic will be discriminatory harassment contrary to the Code. It is certainly undesirable for people to treat each other rudely, disrespectfully, or inappropriately. However, it is not the Tribunal’s purpose to adjudicate disputes other than where a person’s protected characteristic has presented as a barrier in their ability to fully, and with dignity, access an area of life protected by the Code. In performing this function, the Tribunal is cognizant that the disputes brought to it arise between human beings, with all the imperfection that entails. Not every failure to be kind or professional requires state intervention.
[73] Dr. Rogers argues that she suffered an adverse impact as a result of Canada Life’s rigid enforcement of deadlines. I am not persuaded by this argument. The fact is Canada Life provided many months for Dr. Rogers to comply with its requests and did not enforce the October 31, 2019 deadline.
[74] I do find, however, that Dr. Rogers suffered an adverse impact as a result of Ms. Gilmor’s letter of September 30, 2019.
[75] Dr. Rogers in her September 13, 2019 at 10:59 a.m. email to Ms. Gilmor explained that she had difficulty processing information, and reviewing traumatizing events caused panic.
[76] Canada Life argues that there is no evidence Dr. Rogers’ disability prevented her from complying with the requests for updated medical information. I disagree.
[77] I accept Dr. Rogers’ evidence about how Ms. Gilmor’s September 30, 2019 impacted her.
[78] After receipt of Ms. Gilmor’s September 30, 2019 letter, Dr. Rogers articulated the negative impact that letter had on her, including anxiety, panic, despair and suicidal ideations.
[79] Consequently, I am prepared to find that Dr. Rogers has established that she was adversely impacted by Canada Life’s requirement to fill out Forms A and C as per Ms. Gilmor’s September 30, 209 letter.
3. Connection Between Disability And Adverse Impacts
[80] The issue is whether Dr. Rogers was adversely impacted in a manner connected to her disabilities. The focus is on the effect of Canada Life’s conduct, and not its intentions: Code, s. 2; Robichaud v. Canada (Treasury Board), [1987] 2 SCR 84; Stewart v. Elk Valley Coal Corp., 2017 SCC 30 [Elk Valley] at para. 45.
[81] The evidence demonstrates that there were several reasons other than Dr. Rogers’ mental disability for her reluctance to complete Forms A and C in a timely way as requested by Canada Life.
[82] It is evident that once Dr. Rogers was accepted for CPPD, to her it seemed unnecessary to provide further continued proof of disability. Dr. Rogers also considered it an inconvenience to have her treating physician fill out the same form every year, especially given her continuity of care issues.
[83] Further, as per her letter of September 10, 2019, Dr. Rogers was challenging the offset of her CPPD benefits from her LTD benefits and refused to provide Canada Life with “any more personal information as it is used against me to deny me benefits.”
[84] However, Dr. Rogers does not have to prove that her mental disabilities were the only factor, overriding factor, or even a significant factor in the alleged adverse impact she experienced: Quebec (Commission des Droits de la personne et des droits de la jeunesse) v. Bombardier Inc., 2015 SCC 39 at paras. 45-52; Elk Valley at para. 46.
[85] I find that Dr. Rogers’ mental disability was a factor in the adverse impact she suffered as a result of the requirement to fill out Forms A and C. I accept that she had difficulty processing information, and the obligation to fill out Forms A and C to her was problematic as it could trigger traumatizing events and cause panic.
[86] Further, Dr. Rogers made an explicit request for accommodation which evidences a connection.
[87] As a result, Dr. Rogers has proven the three elements of the Moore test. The burden now shifts to Canada Life to prove they accommodated Dr. Rogers’ disability.
4. Accommodation
[88] To establish a bona fide occupational requirement, Canada Life must prove:
a. they adopted the requirement for Dr. Rogers to complete Forms A and C for a purpose rationally connected to the continuation of her LTD benefits as per the requirements of the Plan;
b. they adopted the requirement for Forms A and C to be completed in an honest and good faith belief that it was necessary to the fulfillment of that legitimate purpose; and
c. the requirement for Forms A and C to be completed is reasonably necessary to the accomplishment of that legitimate purpose. To show that the standard is reasonably necessary, Canada Life must show that they could not do anything else “reasonable or practical” to avoid the negative impact, without incurring undue hardship.
Meiorin at para. 54 [BFOR test]
[89] Starting with the first element of the BFOR test, I agree with Canada Life’s position that requesting claimants, including Dr. Rogers, to complete Forms A and C is rationally connected to continued entitlement to LTD benefits. Dr. Rogers does not dispute that ongoing proof of disability is a legitimate Plan requirement.
[90] The Plan requires the completed Forms A and C for the assessment of ongoing disability, in order for the employee to continue to meet the Plan’s definition of disability.
[91] In addition, Forms A and C are required to determine if other aspects of the entitlement to benefits are being met, including the requirement to be under the full-time care of a physician, not having returned to work or being retired.
[92] Further, Form A, questions 8 and 9, ask the employee whether or not they have applied for and/or are in receipt of other disability income. This information is necessary for the appropriate calculation of the benefit amount each employee should receive as LTD payments.
[93] Regarding the second element of the BFOR test, I reject Dr. Rogers’ argument that Canada Life did not act in good faith because it accepted her CPPD approval to offset her LTD benefits yet rejected the CPPD approval as proof of continued disability.
[94] The Plan’s definition of disability is different from the legislation that governs CPPD. Canada Life in its administration of the Plan must offset CPPD income from LTD benefits. There is no authority under the Plan to automatically accept that a CPPD approval evidences continued proof of disability.
[95] I have no hesitation in finding that Canada Life had an honest and good faith belief that requiring Dr. Rogers complete Forms A and C was necessary to fulfil the legitimate purpose of the Plan. There is no evidence before me that indicates otherwise.
[96] With respect to the third element of the BFOR test, the concept of “reasonable accommodation” requires Canada Life to take reasonable and practical steps to assess whether their normal procedures can be modified to remove barriers in order to allow Dr. Rogers to comply with the Plan’s requirements. It is an exercise in common sense and flexibility, in which both the process and substance of the accommodation are relevant: Meiorin at para. 66.
[97] As the term “reasonable” implies, the duty to accommodate is not unlimited, it is to the point of “undue hardship”.
[98] The concept of “undue hardship” sets the limit for the lengths that Canada Life is required to go to, and the point at which further efforts become unreasonable. Inherent in the concept is the recognition that there may be some hardship in accommodating Dr. Rogers’ disability.
[99] What is reasonable, and what hardship is undue, will vary “according to the characteristics of each enterprise, the specific needs of each employee, and the specific circumstances in which the decision is to be made”: McGill University Health Centre (Montreal General Hospital) v. Syndicat des employés de l’Hôpital général de Montréal, 2007 SCC 4 at para. 22.
[100] Reasonable accommodation is satisfied where a respondent “could not have done anything else reasonable or practical to avoid the negative impact on the individual”: Meiorin at para. 38.
[101] Canada Life’s duty to accommodate does not include a duty to provide perfect accommodation. Dr. Rogers, like all complainants, must participate in the accommodation process, accept solutions that are reasonable, without insisting on perfection: Central Okanagan School District No. 23 v. Renaud [1992] 2 SCR 970.
[102] In this case and for the reasons that follow, I find Canada Life took all reasonable and practical steps to accommodate Dr. Rogers in the circumstances.
[103] Accommodation can be a complex exercise. It can take time, and my assessment does not look at the matter in isolation through just one email or letter between the parties.
[104] In my view, Canada Life met its duty to accommodate by providing Dr. Rogers with the following:
a. Time to provide Forms A and C;
b. Canada Life ultimately accepted an incomplete Form A;
c. Canada Life offered to pay for Dr. Rogers’ treating physician to fill out Form C;
d. Canada Life ultimately did not require Dr. Rogers to submit the Form C; and
e. Canada Life postponed the requirement for completing the next Forms A and C from one year to two years.
[105] Dr. Rogers argues that Canada Life failed to inquire as to whether or not her delay in responding was due to her disability. I am not persuaded by argument.
[106] A respondent has a duty to inquire if something reasonably alerts them that a claimant may have a disability that requires accommodation. This can occur even before the claimant explicitly advises the respondent of a disability and need for accommodation: Lewis v. Hour of Power Canada and another, 2018 BCHRT 251 at paras. 86-89. In Lewis at para. 85 the Tribunal stated:
Usually, a complainant must request accommodation in relation to the disability. In other cases, a respondent should reasonably be aware of the need for accommodation – or the possible need for accommodation – absent a clear communication.
[107] In my view, this is not a circumstance where Canada Life should have reasonably been aware of Dr. Rogers’ need for accommodation for filling out Forms A and C prior to Dr. Rogers’ September 13, 2019 email at 10:59 a.m.
[108] There is evidence on this application that Forms A and C had been filled out before by Dr. Rogers.
[109] There is no evidence before me to indicate that Dr. Rogers had an issue prior to 2019 in filling out Forms A and C.
[110] Canada Life followed up monthly from July 2019 as to the status of the completion of Forms A and C. When Dr. Rogers provided the incomplete Form A on September 10, 2019, she wrote: “I refuse to give up any more personal information as it is used against me to deny me benefits.”.
[111] I don’t accept that in these circumstances, Canada Life had an obligation to reach out to Dr. Rogers prior to September 13, 2019 to inquire as to whether or not Dr. Rogers’ failure to provide Forms A and C might require accommodation.
[112] Dr. Rogers argues that Canada Life failed to accommodate her because they did not provide flexible timelines adjusted to her functional capacity. I disagree.
[113] Based on the evidence before me, Canada Life provided Dr. Rogers with a significant flexibility to provide Forms A and C. The first request came on June 12, 2019 without any response. Ms. Gilmore provided reminders on July 8, 2019, August 15, 2019. The first time the deadline of October 31, 2019 was provided was September 13, 2019 at 8:03 a.m., three months after the initial request.
[114] Further, the fact that Canada Life waived the need to complete the Form C and totally removed the October 31, 2019 deadline is evidence of reasonable accommodation in the circumstances.
[115] When Dr. Rogers sent her email on September 13, 2019 at 10:59 a.m. to Ms. Gilmor, I am satisfied that Ms. Gilmore’s response was adequate.
[116] This is not a situation where Dr. Rogers provided specific medical information to Canada Life substantiating her assertion that her disability impaired her from filling out Forms A and C. Dr. Rogers has produced medical notes from her Psychiatrist dated June 21, 2019, April 26, 2021, and October 28, 2021 all relating to her legal/court matters, and not applicable to filling out Forms A and C.
[117] It would also have been potentially perverse if Canada Life, as part of its duty to accommodate, required Dr. Rogers to provide proof that her disability impacts her ability to obtain medical information by obtaining medical information.
[118] Ms. Gilmor was not dismissive of Dr. Rogers and in her reply of September 13, 2019 at 1:17 p.m. to Dr. Rogers, Ms. Gilmor sought to remove what she understood to be the major barrier to completing Form C, the economic barrier.
[119] Ms. Gilmor clarified for Dr. Rogers that Canada Life was not looking for an extensive medical report, only the Form C to be filled out. Also, Ms. Gilmor noted that there should not be any expenditure for Dr. Rogers for either the Form A or Form C. In further correspondence, Ms. Gilmor offered to have the costs of the Form C, if any, covered up to $65.00.
[120] Dr. Rogers argues that Canada Life should have communicated with her by mail rather than email. On my review of the evidence, that is exactly what Canada Life did. Ms. Gilmor accommodated this request and in fact Dr. Rogers thanked her for complying on a number of occasions.
[121] Dr. Rogers argues that Canada Life did not conduct an individualized assessment of her needs and should not have required her to have Form C filled out but accept alternative documentation from treating physicians that she already submitted. This is what in fact happened. I cannot view this as anything other than a reasonable accommodation provided to Dr. Rogers. Canada Life ended up advising Dr. Rogers that she did not have to submit a Form C in 2019.
[122] The accommodation process is not static. The fact that Canada Life indicated to Dr. Rogers that a Form C would not be requested for two years, in my view was a reasonable accommodation. Dr. Rogers requested that she no longer be required to provide the Form C. This request is more along the lines of a “perfect accommodation”.
[123] The evidence sets out the fundamental requirements for Forms A and C to be completed by employees on LTD: be under the full-time care of a physician; continue to meet the definition of disability; and any receipt of work income or other disability income disclosed in order to provide the correctly calculated benefit. In my view, it would be an “undue hardship” to Canada Life and the proper administration of the Plan to outright stop the requests for Dr. Rogers to provide Forms A and C.
[124] In considering the specific circumstances of this particular case and the common sense and flexibility required for the fulfilment of the duty to accommodate, I find Canada Life has met its duty by relieving the disability-related burden that Dr. Rogers was facing in the fall of 2019.
[125] As I have found that Canada Life has met their duty to accommodate, there is no need to address Canada Life’s s. 13(3)(b) argument.
IV CONCLUSION
[126] Dr. Rogers’ complaint is dismissed as per s. 37(1) of the Code.
Christopher J. Foy
Tribunal Member