Bastani (by Nasrin Bastani) v. Whole Foods Market and others, 2026 BCHRT 204
Date Issued: September 23, 2026
File: CS-006369
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:
Rezvan Bastani (by Nasrin Bastani)
COMPLAINANT
AND:
Whole Foods Market and Cristina King and Jefferson Insorio
RESPONDENTS
REASONS FOR DECISION
APPLICATION TO DISMISS A COMPLAINT
Section 27(1)(c)
APPLICATION FOR FURTHER SUBMISSIONS
Rule 28(5)
Tribunal Member: Ijeamaka Anika
Agent for the Complainant: Nasrin Bastani
Counsel for the Respondent Whole Foods Market:
Holly Gomes
Marino Sveinson and Kris Liset (Dismissal Application only)
I INTRODUCTION
[1] Rezvan Bastani alleges that Whole Foods Market, Cristina King, and Jefferson Insorio [the Respondents] discriminated against her in employment based on physical disability contrary to s. 13 of the Human Rights Code. She says that when she worked at a Whole Foods Market store, the Respondents failed to provide her with disability-related accommodation. In an amendment to her complaint, Ms. Bastani makes other allegations unrelated to her disability, including about break times, covertly using another employee to function as an interpreter, a coworker brushing up against her while she was washing dishes, and being watched by the security guard.
[2] The Respondents deny discriminating and apply to dismiss the complaint under s. 27(1)(c) and (d)(ii) of the Code. Under s. 27(1)(c), they argue that the complaint has no reasonable prospect of success because they are reasonably certain to prove at a hearing that they discharged their duty to accommodate Ms. Bastani. They say they sought to accommodate Ms. Bastani but she refused to participate in the process and then abandoned her employment. Under s. 27(1)(d)(ii), the Respondents say that proceeding against the individual respondents, Ms. King and Mr. Insorio, would not further the purposes of the Code because Whole Foods accepts responsibility for any remedial orders related to their alleged conduct.
[3] I find it most efficient to consider the dismissal application under s. 27(1)(c).
[4] At the close of submissions on the dismissal application, Ms. Bastani applied to file further submissions based on the Respondents’ reply. For the reasons set out in this decision, I deny Ms. Bastani’s application. I have reviewed all the materials, and, in my view, the Respondents have not raised new issues in their reply submissions. I did not require submissions from the Respondents to decide this application.
[5] For the following reasons, I allow the dismissal application and dismiss the complaint. I am satisfied that the Respondents are reasonably certain to prove that they met their duty to accommodate Ms. Bastani’s disability, and that the accommodation process ultimately ended when Ms. Bastani refused to continue participating in it. 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.
[6] I apologize to the parties for the delay in issuing this decision.
II BACKGROUND
[7] The background is taken from the materials filed by the parties. Where there are disputes in the evidence, I indicate it below.
[8] Ms. Bastani began working at a Whole Foods store on February 1, 2022, as a full-time dishwasher in the culinary department. Ms. King was a store team leader at the time of Ms. Bastani’s employment. Mr. Insorio was a culinary associate team leader.
[9] Whole Foods has several workplace policies. Its General Information Guide outlines operational procedures and workplace policies, while a Non-Discrimination Policy prohibits discrimination on grounds protected by law. Under its Team Member Incidents and Return-to-Work Policy, which provides the accommodation and return to work process [the accommodation process], employees experiencing illness or injury were required to obtain medical care, provide medical information, including an Occupational Injury/Illness Functional Abilities for Modified Work Form completed by a physician [the functional abilities form], and participate in any arranged transitional or modified duties so that appropriate work consistent with their restrictions could be identified. Finally, the Absenteeism and Tardiness Policy require employees to provide medical information or documentation as part of the leave-of-absence process.
[10] Ms. Bastani has sciatica. She had this condition for around twenty years prior to working at Whole Foods.
[11] On January 14, 2022, Ms. Bastani went to the store for an interview with Ms. King. Her sister, Nasrin Bastani was also being interviewed at the same time for a different position in the store. According to Ms. Bastani, the interview was conducted entirely outside in the store’s patio area. Ms. Bastani says that during the interview, she informed Ms. King that she had suffered from sciatica for about twenty years. She says Ms. King asked her the maximum weight she could lift, and she responded that she could not carry objects weighing more than 2-3 kilograms, indicating the number two with her fingers. Ms. Bastani says that Ms. King verbally acknowledged this limitation and confirmed it with Nasrin, who was being interviewed at a different table on the patio.
[12] The Respondents have a different recollection of the interview. They say that Ms. King walked Ms. Bastani through the store’s dishwashing area and provided an overview of her duties and responsibilities as a dishwasher. They say during her interview, Ms. Bastani expressed concern about lifting objects heavier than 30 kilograms. Ms. King informed Ms. Bastani that her Dishwasher duties required her to lift objects weighing 50 pounds, or 23 kilograms. Ms. King says she told Ms. Bastani that her role would require repetitive motion, and she would have to receive boxes of around 20-30 pounds. Ms. King says she also informed Ms. Bastani that she could request help when lifting heavy objects.
[13] In February 2022, Ms. Bastani was hired to work at the store. On February 3, 2022, Ms. Bastani started her training at the store and on February 4, 2022, she started her job as a dishwasher. She worked eight-hour shifts. She says that while placing dishes on shelves, she was unable to store heavy or large dishes on higher shelves due to her physical limitations and instead stored them on lower shelves until a kitchen supervisor insisted she place them on the higher shelves. By the end of her shift on February 4, 2022, Ms. Bastani was experiencing “significant back strain.” She says the duties she performed that day required her to lift heavy items including large dishes and trays filled with food items, frequent torso twisting motions, and repetitive stretching and bending movements which placed extreme demands on her body due to her disability.
[14] Following her shift on February 4, 2022, Ms. Bastani requested changes in her shift. She says she informed Mr. Insorio that she was unable to attend her shift due to sciatica and requested reduced working hours because of the heavy workload and resulting physical strain. She says that Mr. Insorio told her to speak to Ms. King regarding her request. The date of this request is unclear on the materials before me, but there is no dispute that she made this request. Ms. Bastani says she spoke with Ms. King regarding her request. She says she was concerned that her limited English may have caused a misunderstanding and returned to Ms. King’s office with Nasrin, who translated for her. She told Ms. King she had been suffering from sciatica for twenty years and her workload at the store was too demanding and requested to work a maximum of six hours a day. She explained that if a 40-hour workweek was required, she could work every day with shorter shifts. She says Ms. King acknowledged her request and told her she would adjust her shifts. The Respondents do not address this in their submissions.
[15] On February 5, 2022, Ms. Bastani was scheduled for an eight-hour shift. Her timesheet shows she worked on that day.
[16] On February 8, 2022, Ms. Bastani says her work schedule remained unchanged, and she experienced a lot of pain due to the duties she had to perform that day together with her ongoing training which worsened the pain over the next several days. Ms. Bastani says that she was required to perform several physically demanding cleaning and waste-disposal tasks involving significant lifting, reaching, and bending. She says these duties caused severe back and leg pain, which led her to leave work early with permission.
[17] There is no dispute that on the same day Ms. Bastani informed Mr. Insorio that she was experiencing back and leg pain while performing her duties. In her email, Ms. Bastani inquired about transferring to another role at the store. Mr. Insorio told her to inform the store leadership of any physical limitations that were impacting her job.
[18] On February 9, 2022, Ms. Bastani emailed Ms. King stating that she was unable to attend her shift at the store for other health reasons unrelated to her sciatica. On February 10, 2022, Ms. King responded to the email and told Ms. Bastani that she should call the store’s general phone line an hour before her shift to inform a shift leader if she was unable to report to work in the future.
[19] On February 10, 2022, Ms. Bastani informed Ms. King that she was experiencing pain in her back and leg while performing her duties. She inquired about transferring into another role at the store. Ms. King says she told Ms. Bastani to see a doctor to determine her abilities and limitations for the Respondents to find suitable modified duties for her to perform. Ms. King says she also advised Ms. Bastani to speak with a member of Whole Foods’ Team Member Services [TMS] regarding her request. Based on the evidence, I understand TMS to perform a human resources function. The same day, Ms. King emailed a TMS representative regarding Ms. Bastani’s request for shorter shifts.
[20] On February 12, 2022, Ms. Bastani emailed Ms. King and Mr. Insorio that she could not come to work due to her back pain. She requested a change in her employment from full time to part time and a change on her shifts so that she would not work on Thursdays. Mr. Insorio responded that she would need to apply again for a part-time position if she wanted to make that change. He told her that as a full-time employee, she was required to work 40 hours a week and asked for clarification on whether she could not or did not want to work on Thursdays because she wanted less work hours. He told her that they could discuss further at her next shift to ensure the correct process was followed. The same day, Ms. Bastani replied, asking for details on how to apply for a part-time job and Mr. Insorio told her to log on to the store’s Workday platform and follow the instructions on there.
[21] The Respondents say that on the same day, Ms. King informed TMS of Ms. Bastani’s request for part-time employment. The Respondents say Ms. Bastani did not report to work for her next three shifts.
[22] On February 15, 2022, Ms. Bastani emailed Mr. Insorio and Ms. King to, again, request a change in her employment from full time to part time. She stated that she was in a lot of pain and could not come to work that week and needed to rest at home. In response, Mr. Insorio told Ms. Bastani that she could log on to Workday and apply to any open part-time positions. Mr. Insorio’s email also stated that if Ms. Bastani could not come to work, she was required to call the store prior to her shift. Ms. Bastani responded to inform Mr. Insorio that she had applied for three positions in the portal. The same day, Ms. Bastani called the store regarding her absence. She spoke to a Whole Foods Associate Store Team Leader [CC]. She stated that she had been trying to call the store all week to report her absences and was unable to attend work that day or for her remaining shifts that week due to her sciatica. CC told her that because she had been off for three consecutive shifts, she needed a doctor’s note clearing her to work.
[23] On February 16, 2022, a TMS representative [NC] emailed Ms. Bastani stating that she had been informed by Mr. Insorio and CC that Ms. Bastani was seeking medical accommodation for shorter shifts due to her back issues. NC asked Ms. Bastani for a note that described her limitations regarding scheduling, hours per day, working hours per week, and any other accommodations she required due to her physical restrictions. The email stated that this information would help the Respondents assess any work restrictions and potential accommodations. NC attached a medical form for Ms. Bastani’s physician to complete and advised that Whole Foods required medical documentation both to assess accommodations and to clear her return to work after more than three consecutive missed shifts.
[24] Ms. Bastani responded the same day. She stated that she had a 20-year history of sciatica and had been advised to avoid prolonged standing and heavy lifting. She said her work at Whole Foods aggravated her condition and proposed reduced or lighter shifts of up to 30 hours per week. She also stated that she had applied for other positions within Whole Foods, intended to obtain medical documentation, and asked whether she could be considered for a different position once she provided a doctor’s note.
[25] On February 19, 2022, Ms. Bastani told the Respondents that a doctor had recommended she rest for up to four weeks. She asked how to report her back pain and difficulty walking as a workplace injury. The following day, CC responded that workplace injuries must be reported when they occur or symptoms first arise so that a first aid record can be created, noting that the Respondents learned of Ms. Bastani’s injury after the fact and that it involved an aggravation of a pre-existing condition. On February 22, 2022, Ms. Bastani replied that the Respondents were refusing to report her injury and stated that she would file a human rights complaint if it was not reported within a week. The Respondents replied the following day that they required additional information to complete a first aid report and asked Ms. Bastani to call the store to complete the paperwork. Ms. Bastani requested to communicate by email, and on February 24, 2022, Ms. King emailed her with questions that required Ms. Bastani’s response to complete the first aid form. She further advised that an interpreter could be provided for a call. Ms. Bastani replied that she would call the next day and that Nasrin would act as her translator.
[26] On February 25, 2022, Ms. Bastani joined a call with CC and another Team Leader for Whole Foods [DJ]. The parties give different accounts of what was said during the call, including whether DJ mocked Ms. Bastani and whether modified duties were offered. I address the dispute in my analysis below.
[27] The same day, the Respondents sent Ms. Bastani two forms to complete in support of her leave of absence. They included a functional abilities form for her medical doctor to complete to facilitate modified duties on her return. The second document was a leave of absence instructions document advising Ms. Bastani to provide medical documentation to Whole Foods disability claims manager verifying the duration of her inability to work due to medical reasons.
[28] On February 26, 2022, Ms. Bastani filed her human rights complaint.
[29] Ms. Bastani says that on February 26, 2022, she attempted to complete the work absence form with Nasrin’s help but encountered a system error on the portal. She reported the issue to Ms. King by email and concluded her email by stating:
Kindly please fix the issue before February 29 and update me if the problem is resolved or unfortunately I will take it as refusing to give me my benefits due to the work injury that is caused during my shift in Whole Foods Market.
[30] The following day, Ms. King responded to Ms. Bastani and provided some direction on how Ms. Bastani could complete the form on the disability provider’s platform. Ms. Bastani replied that she could complete the form. She also told Ms. King that her concerns extended beyond the workplace injury itself. She alleged that the Respondents assigned her unusually heavy work between February 8 and 11, 2022, and that, despite informing them of her longstanding sciatica, those duties significantly worsened her condition. She said the condition had previously caused only limitations with heavy lifting but had since deteriorated to the point that she could no longer live normally and spent most of her time in bed.
[31] Ms. Bastani says that due to her deteriorated mental and emotional state and belief the Respondents intended to harm her further, she did not pursue the matter and was terrified of them and no longer trusted their intentions. It is unclear from the materials which matter Ms. Bastani decided not to pursue.
[32] On March 1, 2022, NC requested a meeting with Ms. Bastani to discuss her disability and alleged mistreatment by the Respondents. Ms. Bastani responded that she preferred to communicate over email as her written English was better than her spoken English. She stated that she would accept $20,000 to cancel her complaint but was willing to start negotiations at $16,000. The following day, NC responded that the Respondents were willing to engage with Ms. Bastani to understand her concerns and to investigate her concerns and suggested a meeting to discuss by phone or in person. The email stated that translation services would be provided to ensure effective communication and understand Ms. Bastani’s concerns. The parties agreed to a phone meeting on March 4, 2022. At the meeting, Ms. Bastani joined with Nasrin, and NC joined with DJ. Ms. Bastani and Nasrin ended the call once the interpreter introduced herself. Following the call, Nasrin emailed the Respondents stating the following:
Today’s meeting is canceled since I witnessed my sister’s negotiate meeting and you brought a Wholefood employee to translate instead of an unbiased translator which could be considered an illegal act. I prefer to get solved by Human Rights Judge system.
[33] NC responded that the translator was from a third party and not a Whole Foods team member. NC asked if Nasrin would still like NC to give her a call later that day. In response Nasrin replied:
Please note that we both monitored the phone screen during the call which was only with Whole Foods market and no third party joined the call. The call log proves it too. Both Rezvan and I recognized her voice immediately so there need to lie My sister and I tried to negotiate but you were not intererested to prceed it legally. No, our call is cancelled [as written].
[34] NC replied as follows:
As stated in my previous email, we were utilizing 3rd party translation service (Telelanguage) to assist us in facilitating a conversation. I am not lying. The call I made was from my Whole Foods Market iPhone to which I had merged a call with the translator from Telelanguage. We would still like to engage with you and your sister to understand your concerns. If you would like for us to call either of you again today so we can continue that conversation with a Telelanguage translator, please let us know prior to 4pm. The other option I can offer is to meet you and your sister next week in person and we’d have 3rd party translation services available on the phone – your would like to proceed with this option, please let me know so we can coordinate schedules. Should you not reply before 4pm today, I will do my best to look into your concerns with the information I have.
[35] On March 14, 2022, DJ interviewed Ms. King regarding Ms. Bastani’s employment and allegations of discrimination including questions about Ms. Bastani’s onboarding, sciatica disability, and alleged workplace injury.
[36] On March 15, 2022, Ms. Bastani informed the Respondents that she had spoken to her doctor about her sciatica, and her doctor would provide her with a note confirming that conversation. She asked if that was enough. In response, CC asked Ms. Bastani for a doctor’s note or an update on when she could return to work, explaining that Whole Foods had modified duties available but needed to understand her limitations. CC resent the functional abilities form for Ms. Bastani’s doctor to complete. Ms. Bastani did not provide the completed functional abilities form or an update on when she could return to work.
[37] On March 25, 2022, TMS representative [KW], emailed Ms. Bastani to inform her that her leave of absence remained unapproved and requested that Ms. Bastani contact Whole Foods’ disability claims manager. KW followed up with another email on April 1, 2022, restating that Ms. Bastani’s absence was unapproved and asked Ms. Bastani to complete the functional abilities form if she was able to return to work under modified duties. KW stated that Ms. Bastani was required to provide this information to Whole Foods, or its disability claims manager WorkSafeBC by April 8, 2022.
[38] On May 6, 2022, KW emailed Ms. Bastani restating her earlier instructions. This time, KW stated that if Ms. Bastani did not provide the documents by May 13, 2022, Whole Foods would accept that she has resigned from her employment.
[39] The Respondents did not receive a response from Ms. Bastani by May 13, 2022, and her employment ended effective May 19, 2022.
III DECISION
A. Preliminary Issue – Application to File Further Submissions
[40] Ms. Bastani applies to file further submissions. She says the Respondents raised new issues in their reply to the dismissal application. I do not agree.
[41] Generally speaking, if the Tribunal sets a submission schedule on an application, that schedule involves three submissions: the application, the response, and the reply: Rule 28(2). The Tribunal may accept further submissions where fairness requires that a party be given an opportunity to respond to new issues raised in reply: Rule 28(5); Kruger v. Xerox Canada Ltd (No. 2), 2005 BCHRT 24 at para. 17. The overriding consideration is whether fairness requires an opportunity for further submissions: Gichuru v. The Law Society of British Columbia (No. 2), 2006 BCHRT 201 at para. 21.
[42] I have reviewed the dismissal application materials, and in my view, the Respondents have not raised new issues in their reply submissions. The reply responds to each point in Ms. Bastani’s response submissions. What Ms. Bastani characterizes as new arguments is the Respondents disputing the allegations in Ms. Bastani’s complaint and response submissions. This is a proper reply and does not raise new issues.
[43] I deny Ms. Bastani’s application to file further submissions. I am not persuaded that the Respondents’ submissions raise any new issues or arguments that would require, as a matter of fairness, a further opportunity for Ms. Bastani to respond. I do not consider Ms. Bastani’s further submissions to decide the application to dismiss.
B. Allegations unconnected to Ms. Bastani’s Physical Disability
[44] Before addressing the Respondents’ application under s. 27(1)(c), I deal with allegations in the complaint that are unrelated to disability or otherwise not particularized. Ms. Bastani alleges that she was monitored by a loss prevention officer, that a coworker brushed against her while she was washing dishes, and that she could not go on her breaks without permission from Mr. Insorio and he was often not available. However, she does not allege that either incident was connected to her physical disability or any other characteristic protected under the Code. Even if these allegations are accepted as true, they cannot establish discrimination contrary to s. 13. I am therefore satisfied that they have no reasonable prospect of success and dismiss these aspects of the complaint under s. 27(1)(c).
[45] Next, I turn to the core of Ms. Bastani’s complaint which concerns the Respondents’ alleged failure to accommodate her disability.
C. Application to Dismiss – s. 27(1)(c)
[46] The Respondents apply to dismiss Ms. Bastani’s complaint on the basis that it has no reasonable prospect of success: Code, s. 27(1)(c). The onus is on the Respondents to establish the basis for dismissal.
[47] 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.
[48] The Tribunal does not make findings of fact under s. 27(1)(c). Instead, it 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.
[49] A dismissal application is not the same as a hearing: Lord v. Fraser Health Authority, 2021 BCSC 2176 at para. 20; SEPQA v. Canadian Human Rights Commission, 1989 CanLII 44 (SCC), [1989] 2 SCR 879 at 899. The threshold to advance a complaint to a hearing is low. In a dismissal application, a complainant does not have to prove their complaint or show the Tribunal all the evidence they may introduce at a hearing. They only have to show that the evidence takes their complaint out of the realm of conjecture: Workers’ Compensation Appeal Tribunal v. Hill, 2011 BCCA 49 [Hill] at para. 27.
[50] Many human rights complaints raise issues of credibility. This is not, by itself, a sufficient reason to deny an application to dismiss: Evans v. University of British Columbia, 2008 BCSC 1026 at para. 34. However, if there are foundational or key issues of credibility, the complaint must go to a hearing: Francescutti v. Vancouver (City), 2017 BCCA 242 at para 67.
[51] Regarding whether Ms. Bastani has a reasonable prospect of proving her case, the Respondents argue that while Ms. Bastani has disclosed evidence regarding her disability in these proceedings, she failed to participate in the accommodation process.
[52] Assuming without deciding that Ms. Bastani has taken her complaint out of the realm of conjecture, I can decide this application based on the Respondents’ argument that they are reasonably certain to prove that they satisfied any duty to accommodate Ms. Bastani to the point of undue hardship.
[53] To justify their conduct at the hearing, the Respondents would have to prove at a hearing that: (1) it adopted the standard at issue for a purpose rationally connected to the function being performed, (2) it adopted the standard in an honest and good faith belief that it was necessary to fulfill that legitimate purpose; and (3) the standard is reasonably necessary to accomplish that legitimate purpose. This third element encompasses an employer’s duty to accommodate a complainant to the point of undue hardship: British Columbia (Public Service Employee Relations Commission) v. British Columbia Government and Service Employees’ Union (Meiorin Grievance), 1999 CanLII 652 (SCC), [1999] 3 SCR 3 [Meiorin] at para. 54. To satisfy this element, an employer must show they took all reasonable and practical steps to accommodate the complainant’s disability.
[54] The first two elements are not in dispute.
[55] Regarding the third element of the test, the “search for accommodation is a multi-party inquiry,” a complainant “has an obligation to participate in the accommodation process, and to accept solutions that are reasonable, without insisting on perfection”: Central Okanagan School District No. 23 v. Renaud, 1992 CanLII 81 (SCC), [1992] 2 S.C.R. 970 [Renaud] at 994‐995. This would include cooperating with reasonable requests from the employer for medical information necessary to determine what, if any, accommodation is required: Dennis v. B.C. (Ministry of Skills, Development and Labour) and others (No. 3), 2003 BCHRT 168 at paras. 26-29. Depending on the circumstances, if an employee withholds necessary accommodation-related information from their employer, and if this prevents the employer from accommodating the employee despite the employer’s reasonable efforts, the Tribunal may dismiss the employee’s complaint on the basis that the employer discharged its duty to accommodate: Braden v. Howe Sound Pulp and Paper and others, 2023 BCHRT 225, at para 33; Latreille v. Solectron Global Services (No. 2), 2006 BCHRT 9 at para. 48-58, Dennis at paras. 26-29.
[56] I am satisfied that the Respondents are reasonably certain to establish, at a hearing, that they satisfied their duty to accommodate and that their duty came to an end because Ms. Bastani failed to cooperate in the accommodation process.
[57] I begin with the Respondents’ request for Ms. Bastani’s medical information to determine how to accommodate her. The Tribunal has found that employers are entitled to request information about an employee’s medical condition when doing so is reasonably connected to assessing or providing workplace accommodation: Saran v. SeaStar Solutions and others (No. 3), 2021 BCHRT 108, at para 129.
[58] I am satisfied that the Respondents are reasonably certain to prove that their requests for medical information were made to understand Ms. Bastani’s functional abilities and limitations and to facilitate the accommodation process. After learning of her request for accommodation, Ms. King notified TMS, explained the accommodation process, and sought medical information relevant to assessing her restrictions and capabilities.
[59] The parties disagree about whether modified duties were offered during a February 25, 2022, call. Ms. Bastani says no modified duties were offered and that CC insisted she return to the store to discuss the matter in person. The Respondents say they offered temporary modified duties pending further medical information and that Ms. Bastani declined them. They rely on a contemporaneous Temporary Modified Duties Agreement recording an offer of: (1) packing and labelling PRDS items; (2) computer training; and (3) a combination of seated and standing light duties. I need not resolve this dispute.
[60] It is undisputed that the Respondents requested a completed functional abilities form on February 25 and again on March 15, and that Ms. Bastani neither provided the form nor updated them about when she could return to work. That evidence is sufficient to support the Respondents’ position that the accommodation process ended because Ms. Bastani stopped participating in it. In addition, the evidence also indicates that the Respondents offered temporary modified duties, provided information and technical assistance regarding the leave process when those duties were not accepted, and later proposed a meeting to address Ms. Bastani’s concerns about workplace mistreatment.
[61] I am satisfied that the Respondents are reasonably certain to prove that Ms. Bastani did not provide the information requested to facilitate the accommodation process. She did not provide her medical information or a functional abilities form completed by her doctor despite multiple requests from the Respondents. Where an employee refuses to cooperate with a reasonable request for medical information, the employer’s duty to accommodate may be discharged notwithstanding that no accommodation was ultimately implemented. In Dennis, the Tribunal dismissed a complaint under s. 27(1)(c) where the complainant objected to the employer’s attempts to obtain medical information reasonably necessary to determine what accommodation, if any, was required, holding that active cooperation includes cooperating with such requests: at para. 27. And in Katz v. University of British Columbia, 2013 BCHRT 278, at para. 34, the Tribunal found that the complainant “took it upon herself to stop participating in the process” after being asked for medical documentation. As a result, she could not establish that the respondent had failed to meet its duty to accommodate.
[62] Regarding the breakdown of the March 4, 2022, meeting over the identity of the interpreter, I am satisfied that the Respondents are reasonably certain to prove that they attempted to restart the accommodation process and address Ms. Bastani’s concerns. They sought to assure her that a third-party interpreter had been used and offered either to reconnect the call that day or to meet again the following week with third-party interpretation available. Ms. Bastani and her sister declined both options.
[63] I now turn to Ms. Bastani’s remaining arguments.
[64] First, Ms. Bastani argues that the Respondents’ accommodation efforts fell short because they did not promptly respond to her request for reduced hours. She says the Respondents focus on events after February 11, 2022, and overlook their initial delay in addressing her request. I have therefore considered the timing of the Respondents’ response in the context of their duty to accommodate.
[65] Timeliness is an important aspect of the duty to accommodate. Workplace accommodation processes take time, and parties cannot generally expect immediate solutions. However, excessive or unnecessary delay may render an accommodation process unreasonable: Bowker v. Strata Plan NWS 2539, 2019 BCHRT 43 at paras. 51 and 56; see also Dunkley v. UBC and another, 2015 BCHRT 100. The cases in which the Tribunal has found potentially unreasonable delay have generally involved substantially longer periods, including delays of two months, several months, one year, or longer.
[66] On the evidence before me, I am not persuaded that the Respondents’ initial response impacts my finding that the Respondents are reasonably certain to prove that they met their duty to accommodate Ms. Bastani. Ms. Bastani says that Ms. King acknowledged her February 4, 2022, request and told her she would adjust her shifts. The Respondents do not address this. Ms. Bastani’s schedule remained unchanged on February 5 and 8. However, Ms. King referred the request for shorter shifts to TMS on February 10, six days after the request, and a medical-information process was initiated to assess her restrictions. During this period, Ms. Bastani missed shifts on February 9, for health reasons unrelated to her sciatica, and on February 12. The Respondents say she missed the next three shifts, and on February 15, Ms. Bastani told CC she could not work for the rest of the week. The accommodation process continued during this time. When considering a complaint about a respondent’s accommodation process, the Tribunal applies a standard of reasonableness, not perfection: Klewchuk v. City of Burnaby (No. 6), 2022 BCHRT 29 at para. 425. In assessing whether the Respondents acted reasonably, the Tribunal will consider the matter as a whole, rather than focusing on each incident in the accommodation process in isolation: Klewchuk at para. 413. On this basis, I am not satisfied that Ms. Bastani could reasonably prove at the hearing that the delay was excessive or unnecessary such that the Respondents’ accommodation efforts were unreasonable.
[67] Second, regarding Ms. Bastani’s allegation that a Whole Foods representative mocked and laughed at her disability during the February 25, 2022, call, I am not satisfied that it is a basis for dismissing this application. Taken as a whole, the contemporaneous emails between the parties show the Respondents took Ms. Bastani’s disability and her need for accommodation seriously. They sought medical information from her to determine the extent of her abilities, offered modified duties, provided technical assistance, and repeatedly followed up when Ms. Bastani did not respond or provide documentation. A single, disputed allegation of mockery in one conversation, which is denied by the Respondents and unsupported by evidence of several consistent, professional correspondence does not undermine that overall pattern. I am not satisfied there is a reasonable prospect a hearing would conclude that this single allegation, even if proven, establishes that the Respondents did not otherwise fulfil their duty to accommodate.
[68] Third, Ms. Bastani argues that WorkSafeBC’s acceptance of her workplace injury supports her human rights complaint. I disagree. While the Workers’ Compensation Appeal Tribunal may have addressed causation between Ms. Bastani’s workplace duties and her injury, for the purposes of the Workers Compensation Act, it did not address whether the Respondents met their duty to accommodate her disability under the Code. The two forums serve different purposes and apply different legal tests. As a result, Workers’ Compensation Appeal Tribunal’s finding does not answer the question of whether the Respondents are reasonably certain to prove that they accommodated Ms. Bastani to the point of undue hardship.
[69] For all these reasons, I am satisfied that the complaint has no reasonable prospect of success under s. 27(1)(c).
IV CONCLUSION
[70] The complaint is dismissed. I am satisfied that the complaint has no reasonable prospect of success under s. 27(1)(c) of the Code.
Ijeamaka Anika
Tribunal Member
Human Rights Tribunal