Everall v. Newcrest Red Chris Mine Ltd. 2026 BCHRT 217

Date Issued: October 15, 2026
File(s): CS-006927

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:

Devin Everall
COMPLAINANT

AND:

Newcrest Red Chris Mine Ltd.
RESPONDENT

REASONS FOR DECISION

APPLICATION TO DISMISS A COMPLAINT
Section 27(1)(c)

Tribunal Member: Ijeamaka Anika
Complainant: No Submissions
Counsel for the Respondent: Lauren Soubolsky

I        INTRODUCTION

[1]             Devin Everall worked as a Serviceman at a mine in British Columbia operated by Newcrest Red Chris Mine Ltd. In August 2019, Mr. Everall developed an injury to his right hand and arm. For almost two years, Newcrest assigned him modified duties. In May and June 2021, WorkSafeBC confirmed that Mr. Everall’s restrictions were permanent and that he could not return to his position as a Serviceman. In his complaint, Mr. Everall alleges that Newcrest discriminated against him in employment based on physical disability, contrary to s. 13 of the Human Rights Code. Specifically, he says that Newcrest eliminated his modified position and did not take steps to accommodate him.

[2]             Newcrest denies discriminating and applies to dismiss the complaint under s. 27(1)(c) of the Code on the basis that it has no reasonable prospect of success. Newcrest says that it accommodated Mr. Everall to the point of undue hardship. It says it provided him with modified duties for almost two years, that it could not permanently make work for him, and that it had no available position that fit both his restrictions and his qualifications. Newcrest also says Mr. Everall did not participate in the accommodation process.

[3]             Mr. Everall did not file a response to the dismissal application. As set out below, I am satisfied he had notice of the application and an opportunity to respond to it, and I decide the application on the materials before me.

[4]             For the following reasons, I grant the application and dismiss the complaint. I am persuaded that Newcrest is reasonably certain to prove at a hearing that it accommodated Mr. Everall to the point of undue hardship. 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. I make no findings of fact.

II      BACKGROUND

[5]             The background is taken from the materials filed by the parties. Where there are disputes in the evidence, I indicate it.

[6]             The Red Chris mine is an open-pit gold and copper mine located approximately 80 km south of Dease Lake. Most employees work a fly-in/fly-out schedule and reside on site while at work. Newcrest was the majority owner and operator of the mine from August 15, 2019, until July 2024 when another company, Newmont, acquired its interest. Before that, Imperial Metals owned the mine. Newcrest remained the majority shareholder until November 2023. Newcrest and Newmont operate the mine under an agreement with the Tahltan Nation.

[7]             Mr. Everall began working at the mine in June 2017, as a Fuel and Lube Truck Operator. At the time, Imperial Metals owned the mine. In April 2018, Imperial Metals promoted him to Serviceman. His duties included maintaining the mine’s mobile production and support equipment fleet, which is on a scheduled maintenance program. The Serviceman role is physically demanding. The role often requires Servicemen to use vibrating and rotating tools; handle loads of 50 pounds or more; climb ladders, stairs, and machinery; perform frequent bending, twisting, crouching, and overhead reaching; and engage in repetitive gripping and arm movements.

A.    Injury and modified duties

[8]             On August 9, 2019, Mr. Everall reported that he had woken up on August 6 with a lump on his right arm above his wrist and pain running from his thumb to his elbow, which increased with repetitive motion. Imperial Metals reported the injury to WorkSafeBC. Over subsequent shifts, Mr. Everall’s hand injury worsened. He was given a splint to use when he was working. In September 2019, Newcrest assigned Mr. Everall modified duties including the following:

a.   organizing the daily maintenance schedule,

b.   completing paperwork,

c.   validating timecards,

d.   attending meetings on his supervisor’s behalf,

e.   planning and assigning work orders, entering field notes, ordering parts,

f.    transporting co-workers around the mine site,

g.   occasionally filling in as Lead Hand, and

h.   helping Preventative Maintenance personnel and the Tool Crib attendant organize and stage parts.

[modified duties].

[9]             By September 2019, Mr. Everall’s condition had not improved. On September 3, 2019, Mr. Everall’s physician provided him with a Fit to Return to Work form. The form stated that Mr. Everall was not fit to return to his regular duties. The physician advised that he should not use his right hand for anything other than light and non-repetitive activities for 14-21 days. On October 23, 2019, Mr. Everall’s physician provided another note, which restricted him from lifting, pushing, or pulling with his right hand and stated that he was fit for modified duties only “until further notice”.

[10]         Newcrest continued Mr. Everall’s modified duties despite a recommendation that he remain off work. In February 2020, GTC, which managed Mr. Everall’s WorkSafeBC claim on Newcrest’s behalf, advised that responsibility for the claim belonged to Imperial Metals because the injury occurred before Newcrest acquired the mine. GTC recommended that Mr. Everall stop performing light duties and remain off work until medically cleared to return to his regular position. Mr. Everall continued to perform the modified duties.

[11]         On February 11, 2020, Mr. Everall’s physician completed another Fit to Return to Work Form advising Newcrest that his restrictions now included no use of ladders or walkways, and no lifting, pushing, pulling, or hammering.

[12]         On January 8, 2021, GTC informed Newcrest that a WorkSafeBC case manager said Mr. Everall was attending hand therapy. In fact, Mr. Everall had not attended therapy since July 2020 and had been discharged from the program for non-attendance. The discharge report stated that Mr. Everall was “fit to return to work without limitations.” However, the Return-to-Work specialist also stated that they could not comment on Mr. Everall’s limitations because they had not seen him since July 2020. GTC informed Newcrest that WorkSafeBC had also arranged for Mr. Everall to attend an Activity-Related Soft Tissue Disorder Program [ASTD Program] when he was off rotation from work.

[13]         The ASTD Program rescheduled Mr. Everall’s assessment twice in February and March 2021: once because the program could not reach him, and once because of a family emergency on the part of the program’s physician and an illness in Mr. Everall’s family. In March 2021, GTC notified Newcrest that the program had accepted Mr. Everall and that he would be discharged in May 2021. According to Newcrest’s response to the complaint, Mr. Everall told Newcrest in April 2021 that attending the program during his off rotations was affecting his time with his family.

B.    Permanent restrictions and the end of Mr. Everall’s employment

[14]         On May 10, 2021, GTC informed Newcrest that WorkSafeBC had permanently restricted Mr. Everall to lifting, pulling, pushing, and carrying no more than 20 pounds, and had identified limitations in his grip strength affecting his ability to use tools and ladders. As a result, he could not return to his position as a Serviceman. WorkSafeBC asked whether Newcrest could permanently accommodate Mr. Everall in the modified duties, whether it could accommodate him in a different position, or whether it was unable to accommodate him permanently, in which case WorkSafeBC would begin vocational rehabilitation.

[15]         Newcrest decided that it could not permanently accommodate Mr. Everall with the modified duties. According to Newcrest, the modified duties consisted largely of administrative and support tasks ordinarily performed by Mr. Everall’s supervisor and other employees, while other Servicemen covered the work he could not perform. Newcrest says it could not continue that arrangement indefinitely and that it had no available position that fit both Mr. Everall’s permanent restrictions and his qualifications. Mr. Everall’s last rotation ended on June 3, 2021. On June 8, 2021, Newcrest met with Mr. Everall to advise him that it could not accommodate him further, and that WorkSafeBC would be retraining him through vocational rehabilitation. Newcrest advised Mr. Everall that there were no positions for which he was qualified and issued his Record of Employment. GTC then told Newcrest that the WorkSafeBC case manager had spoken with Mr. Everall, and that he felt strongly that there were jobs at the mine that he could do and for which Newcrest was hiring. Mr. Everall began receiving vocational rehabilitation benefits from WorkSafeBC as of June 14, 2021.

[16]         Mr. Everall has a different version of the events that occurred at the end of his employment. He says in his complaint form that Newcrest did not meet with him about accommodation. On either version, however, it is not disputed that Newcrest told Mr. Everall it could not accommodate him and then ended his employment. As I explain below, I do not need to resolve whether a meeting took place to decide this application.

C.    Events after the end of Mr. Everall’s employment

[17]         In June 2021, Mr. Everall applied for a Mobile Maintenance Planner position at the mine. According to Newcrest, the Mobile Maintenance Planner is a senior leadership role within the maintenance department, responsible for planning corrective, preventive, and predictive maintenance for the employer’s mobile equipment fleet. The position requires coordination with multiple departments and employees, preparation, and processing of work orders, and ensuring compliance with safety and regulatory requirements. Because planners perform these duties using a program known as SAP, working knowledge of SAP is essential to the position. Newcrest says the position also requires seven to ten years of maintenance and planning experience. On June 11, 2021, Newcrest confirmed to WorkSafeBC, through GTC, the requirements of the position and that Mr. Everall did not have the qualifications it was looking for.

[18]         On August 26, 2021, Mr. Everall authorized the United Steelworkers, Local 1-1937 [Union] to discuss his case regarding “failure to accommodate and wrongful dismissal.” At that time, the Union did not represent any employees at the mine. On August 30, 2021, Newcrest’s Human Resources Manager emailed Mr. Everall and offered to speak with him directly. The Manager’s email did not set out the purpose of the meeting. Mr. Everall responded that he was seeking accommodation and directed the Manager to communicate with the Union.

[19]         On September 29, 2021, the Union became the bargaining agent for a unit of employees at the mine. Newcrest says Mr. Everall would have been in that unit if he were still employed.

[20]         On March 2, 2022, the Union emailed Newcrest asking to discuss whether there were any positions for Mr. Everall at the mine. The Union followed up on March 14 and April 5, 2022. Newcrest says it told the Union it was willing to discuss further accommodation but asked the Union to confirm whether Mr. Everall still sought reinstatement, as it understood he was working elsewhere. On May 16, 2022, the Union advised Newcrest that it was no longer pursuing reinstatement or accommodation for Mr. Everall. In July 2022, WorkSafeBC determined that Mr. Everall had found permanent, physically suitable work elsewhere.

III    DECISION

A.    Preliminary issues: Mr. Everall’s lack of response and document disclosure

[21]         On October 15, 2025, the Tribunal sent the parties a submissions schedule for Newcrest’s dismissal application. Newcrest filed its application on December 4, 2025, copying Mr. Everall at his email address for service. Mr. Everall’s response was due December 29, 2025. On January 12, 2026, he advised that he required assistance filing a response. The Tribunal extended the deadline to January 27, 2026, and directed him to organizations that might assist him. Mr. Everall did not file a response. On April 1, 2026, the Tribunal advised him that the application would proceed without his response and explained the process for filing a late response. He did not reply. I am satisfied that Mr. Everall had a full opportunity to provide any evidence or submissions relevant to the dismissal application but did not do so. The only material before me from Mr. Everall is his complaint form.

[22]         In its submissions in the dismissal application, Newcrest asks the Tribunal to decline to consider any documents Mr. Everall files in response to the application because he has not met his document disclosure obligations under the Tribunal’s Rules of Practice and Procedure. As I stated above, Mr. Everall did not file a response or any documents in the dismissal application. It is therefore not necessary for me to consider this request.

B.    Does this complaint have a reasonable prospect of success under s. 27(1)(c) of the Code?

[23]         Newcrest applies to dismiss Mr. Everall’s complaint on the basis that it has no reasonable prospect of success: Code, s. 27(1)(c). The onus is on Newcrest to establish the basis for dismissal.

[24]         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.

[25]         The Tribunal does not make findings of fact under s. 27(1)(c). Instead, the Tribunal looks at the evidence to decide whether “there is no reasonable prospect that findings of fact that would support the complaint could be made on a balance of probabilities after a full hearing of the evidence”: Berezoutskaia v. British Columbia (Human Rights Tribunal), 2006 BCCA 95 at para. 22, leave to appeal ref’d [2006] SCCA No. 171. The Tribunal must base its decision on the materials filed by the parties, and not on speculation about what evidence may be filed at the hearing: University of British Columbia v. Chan,2013 BCSC 942 at para. 77.

[26]         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] 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.

[27]         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.

[28]         To prove his complaint at a hearing, Mr. Everall will have to prove that he has a characteristic protected by the Code, he was adversely impacted in employment, and his protected characteristic was a factor in the adverse impact: Moore v. British Columbia (Education), 2012 SCC 61 at para. 33. If he did that, the burden would shift to Newcrest to justify the impact as bona fide reasonable justification. If the impact is justified, there is no discrimination.

[29]         Newcrest accepts that Mr. Everall’s employment ended because his permanent disability prevented him from performing the core duties of a Serviceman. For this application, I will assume without deciding, that Mr. Everall has taken his complaint against Newcrest out of the realm of conjecture. Therefore, I can decide this application based on Newcrest’s argument is that it is reasonably certain to prove that it met its duty to accommodate Mr. Everall to the point of undue hardship.

[30]         To justify its conduct at the hearing, Newcrest must prove that: (1) it adopted the standard for a purpose rationally connected to the performance of the job; (2) it adopted the standard in an honest and good faith belief that it was necessary to the fulfillment of that legitimate purpose; and (3) the standard is reasonably necessary to the accomplishment of that legitimate purpose. This third element encompasses Newcrest’s duty to accommodate Mr. Everall to the point of undue hardship: British Columbia (Public Service Employee Relations Commission) v. British Columbia Government and Service Employees’ Union (Meiorin Grievance), [1999] 3 SCR 3 [Meiorin] at para. 54.

[31]         On the materials before me, the first two elements are not in dispute. The issue between the parties is the third: whether Newcrest satisfied its duty to accommodate Mr. Everall to the point of undue hardship: Meiorin at para. 54. This element focuses on whether the employer considered alternative approaches and “could not have done anything else reasonable or practical to avoid negative impacts on the individual”: Sargent v. Williams Machinery Limited Partnership (No.2), 2026 BCHRT 168, at para. 62; Moore at para. 49. In other words, the duty to accommodate means that “the employer must accommodate the employee in a way that, while not causing the employer undue hardship, will ensure that the employee can work”: Hydro-Québec v. Syndicat des employé-e-s de techniques professionnelles et de bureau d’Hydro-Québec, section locale 2000 (SCFP-FTQ), 2008 SCC 43 [Hydro-Québec] at para. 13.

[32]         The Tribunal assesses whether an employer has met its duty to accommodate on a global basis, considering the entire history of the matter: Hydro-Québec at para. 20. The duty does not require the employer to provide a perfect solution from the employee’s point of view, but a reasonable accommodation in the circumstances: Central Okanagan School District No. 23 v. Renaud, [1992] 2 SCR 970 at pp. 994-995. Nor does it require an employer to fundamentally change an employee’s working conditions or create a new position to accommodate an employee with a disability: Barker v. Vitalus Nutrition, 2016 BCHRT 88 at para. 44.

[33]         Newcrest argues that it accommodated Mr. Everall to the point of undue hardship. It says it provided him with modified duties for nearly two years following his injury while it expected he would recover and return to his Serviceman position or another suitable role. It says the modified duties were not part of a regular Serviceman position but consisted largely of tasks ordinarily performed by other employees, particularly Mr. Everall’s supervisor, while other Servicemen covered his servicing duties. When it learned that Mr. Everall’s restrictions were permanent and that he could not return to his pre-injury position, Newcrest concluded it could not continue the modified duties arrangement indefinitely because the work did not constitute a required stand-alone position. It says that continuing the arrangement would cause undue hardship and that it found no alternative positions consistent with Mr. Everall’s restrictions and qualifications.

[34]         In his complaint form, Mr. Everall says that Newcrest eliminated his position and did not accommodate him. On the evidence before me, Newcrest did not eliminate the Serviceman position. What ended was the modified duties arrangement. The question is whether Newcrest was required to continue that arrangement permanently. Mr. Everall did not address Newcrest’s evidence about the modified duties in his complaint and did not respond to the dismissal application. As a result, Newcrest’s evidence on this issue is undisputed. In assessing the application, I must decide the matter based on the evidence before me and cannot speculate about what evidence might be called at a hearing: Chan at para. 77.

[35]         The duty to accommodate ends where the employee is no longer able to fulfil the basic obligations of the employment relationship for the foreseeable future: Hydro-Québec at para. 19. It does not require an employer to create or assign work that is not productive for its enterprise, or to create a position for which there is no real operational need: Swanson v. BC Ministry of Attorney General (No.2), 2026 BCHRT 71, at paras. 27 and 32. Nor does it require an employer to create a new position or displace other workers: Barker at para. 44.

[36]         The duty to accommodate does not require an employer to continue a temporary accommodation indefinitely where the arrangement removes or modifies an essential duty of the job. As the Tribunal explained in Lawlor v. PHSA and another, 2019 BCHRT 186 at para. 161, whether a temporary accommodation must become permanent depends on the circumstances. Where an employee cannot perform an essential duty of the position and there is no reasonable accommodation available, an employer need not maintain a modified arrangement indefinitely: Lawlor, at para. 161.

[37]         I am persuaded that Newcrest is reasonably certain to establish that continuing the modified duties arrangement permanently would have required it to create a position comprised of work it removed from other employees’ positions. Newcrest’s uncontradicted evidence is that, by May 2021, Mr. Everall could not perform the core duties of the Serviceman role for the foreseeable future. The modified duties were administrative and support tasks that Mr. Everall’s supervisor and other employees ordinarily performed as part of their own jobs. While Mr. Everall performed those duties, other Servicemen on his crew covered the servicing work he could no longer perform. When Mr. Everall left, the modified duties returned to his supervisor.

[38]         Mr. Everall also says that Newcrest told him there was no position he could perform with his injury. Apart from the Mobile Maintenance Planner position, Mr. Everall does not identify any position that he says he could have performed. Newcrest says it reviewed available positions and found none that fit both Mr. Everall’s permanent restrictions and his qualifications. Regarding the Mobile Maintenance Planner position, Newcrest’s evidence is that it was a senior leadership role requiring advanced SAP knowledge and seven to ten years of maintenance planning and scheduling experience. Its human resources representative attests that Mr. Everall had no maintenance planning experience and would require additional training to perform the role. While the duty to accommodate may require an employer to consider transfers, it does not, however, require an employer to change working conditions in a fundamental way: Hydro-Québec at para. 16-17. According to Newcrest, the position was a senior leadership role requiring extensive planning experience, and there is no evidence before me that Mr. Everall had that experience. On this basis, Newcrest is reasonably certain to establish that the duty to accommodate did not require it to place Mr. Everall in the role and train him into it.

[39]         Mr. Everall also raises concerns about the accommodation process. He says Newcrest did not meet with him about accommodation and refused to discuss accommodation with his Union representative. The evidence is that Newcrest told Mr. Everall there was no accommodation available and then ended his employment.

[40]         I am persuaded that Newcrest is reasonably certain to establish that, once Mr. Everall raised other possible accommodations, it was willing to continue the accommodation discussion. First, when Mr. Everall applied for the Mobile Maintenance Planner position in June 2021, Newcrest confirmed to WorkSafeBC the requirements of the position and that he did not have the qualifications for that position. Second, when he sought accommodation in August 2021, Newcrest offered to speak with him directly, but he asked it to communicate through the Union, which did not yet represent any employees at the mine. Third, in March 2022, when the Union contacted Newcrest about Mr. Everall, Newcrest says it told the Union it was willing to discuss further accommodation but asked whether he still sought reinstatement, as it understood he was working elsewhere. In May 2022, the Union advised Newcrest that it was no longer pursuing reinstatement or accommodation for Mr. Everall, and WorkSafeBC later determined that he had found permanent, physically suitable work elsewhere.

[41]         As for Mr. Everall’s assertion that Newcrest did not meet with him to discuss accommodation, even accepting that no meeting occurred, Newcrest’s uncontradicted evidence is that it had no available positions consistent with his permanent restrictions and qualifications, apart from the Mobile Maintenance Planner position addressed above. Mr. Everall does not identify any accommodation that could have resulted from a meeting. Accordingly, I am not persuaded that the absence of a meeting affected the accommodation outcome.

[42]         Newcrest also argues that Mr. Everall did not fully participate in the accommodation process, relying on his discharge from hand therapy, delays in the ASTD assessment process, and his refusal to communicate directly with Newcrest in August 2021. Given my conclusions above, I need not decide whether Mr. Everall participated in the accommodation process.

[43]         I am satisfied that Newcrest is reasonably certain to prove that it accommodated Mr. Everall to the point of undue hardship.

IV    CONCLUSION

[44]         I grant the application and dismiss the complaint.

Ijeamaka Anika
Tribunal Member
Human Rights Tribunal