Kane v. Douglas College (No.2), 2026 BCHRT 220

Date Issued: October 20, 2026
File: CS-002561

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:

Marilyn Bonnie Kane
COMPLAINANT

AND:

Douglas College
RESPONDENT

REASONS FOR DECISION

Tribunal Member: Kylie Buday

Counsel for the Complainant: Larry Smeets

Counsel for the Respondent: Mark E. Colavecchia and Alyssa L. Paez

Dates of Hearing: April 15-19, 22-26, 2024; March 10-14, 17-21 & 25, 2025

Written submissions complete: August 5, 2025

Location of Hearing: By Videoconference

Contents

INTRODUCTION
WITNESSES
CREDIBILITY AND RELIABILITY
ACCOMMODATION ALLEGATIONS
DISCRIMINATORY HARASSMENT ALLEGATIONS
RETALIATION ALLEGATIONS
1. Events giving rise to Retaliation Allegations
2. Retaliation Allegations
CONCLUSION

I INTRODUCTION

[1] Dr. Marilyn Kane has worked as a philosophy professor at Douglas College in the Faculty of Philosophy and Humanities since 1998. By all accounts, Dr. Kane has been an exceptional academic and teacher throughout her career. Later in her career, she developed disabilities that required workplace accommodations. During the same period, she made allegations of bullying and harassment against her colleagues and was disciplined by the College for the tone of some of her emails.

[2] Dr. Kane filed this human rights complaint on August 26, 2020. In the complaint, Dr. Kane alleges that the College discriminated against her by failing to accommodate her disabilities [Accommodation Allegations] and failing to provide a workplace free of discriminatory harassment [Discriminatory Harassment Allegations], in violation of s. 13 of the Human Rights Code. Dr. Kane also alleges that the College retaliated against her for raising human rights issues by disciplining her, in violation of s. 43 of the Code [Retaliation Allegations]. The College denies violating the Code.

[3] I heard this matter over twenty-one days. The parties entered thousands of pages of documentary evidence. Though I do not refer to them all, I have read and considered all the documents that were entered into the record. Twenty-one witnesses testified and I thank them for all their effort.

[4] For the reasons that follow, I dismiss the complaint.

[5] Regarding Dr. Kane’s Accommodation Allegations, there is no dispute that, during the relevant period, Dr. Kane had disabilities, namely a vocal disorder, chronic fatigue syndrome, and fibromyalgia. I refer to the latter two conditions together as “central nervous system sensitivity syndrome”[CSS]. The Accommodation Allegations concern three broad requests for accommodation relating to these disabilities between 2018-2020:

a. Vocal amplification: Beginning in November 2018, Dr. Kane requested a vocal amplification system for teaching because of her voice disorder. In February 2019, the College bought a “Voice Buddy” system, which unfortunately was not effective. After that, Dr. Kane requested a system called “Front-Row-to-Go”. The College was prepared to purchase this system, but the process ultimately foundered over the issue of whether Dr. Kane could transport the system on a mobile cart. This was the solution proposed by the College, but Dr. Kane took the position that it was not reasonable and asked for the system to be wall-mounted or stored in a classroom. I find that the College proposed a reasonable accommodation based on the information it had at the time. Dr. Kane caused the accommodation process to founder by failing to provide sufficient medical information about why she could not transport the system on a cart.

b. Classroom conditions: Dr. Kane’s CSS makes her sensitive to heat, lighting, and central air conditioning. In April 2019, Dr. Kane made her first request for accommodations relating to her classroom conditions. Over the following year, the College sought medical information about Dr. Kane’s specific disability-related restrictions and limitations, including by requesting information from Dr. Kane’s specialist and referring Dr. Kane to an outside consultant for medical case management. Dr. Kane took the position that some of the College’s requests for information were unnecessary and refused to participate in medical case management. These efforts were eventually interrupted by the COVID-19 pandemic, during which time classes were taught exclusively online. I find that Dr. Kane caused this accommodation process to founder by failing to work cooperatively with the College to provide the information it required to facilitate an accommodation.

c. Office location: Dr. Kane’s medical conditions make her sensitive to stress. In April 2019, she told the College that it was very stressful to have an office near her colleagues in the Philosophy Department, who she perceived were bullying and harassing her. She asked to be moved to an office away from her colleagues. In January 2020, the College did offer her alternative offices, which Dr. Kane declined for various reasons. In August 2020, while she was working from home and classes remained online, Dr. Kane requested a specific office. The College indicated it would not be considering the request until in-class teaching resumed. This did not happen, however, because Dr. Kane left work on a medical leave in December 2020. I find that the College proposed reasonable options to Dr. Kane, which she unreasonably refused. After the onset of the pandemic, I find that Dr. Kane was no longer adversely impacted by her office location and the College no longer had a duty to accommodate her with respect to the office location.

[6] Dr. Kane’s Discriminatory Harassment Allegations arise from her complaint to the College, in January 2019, that she was being bullied and harassed by her colleagues. She specifically singled out one colleague, Edrie Sobstyl, alleging that Dr. Sobstyl was harassing her and spreading rumours about her based on a perception that she had an alcohol use disorder. After Dr. Kane put her workplace complaint in writing in April, the College hired an external investigator to investigate her allegations. In a report dated June 20, 2019, the investigator concluded that Dr. Kane’s allegations of bullying and harassment were unfounded. The College accepted this finding and took no further action. In this human rights complaint, I am not satisfied that Dr. Kane was bullied by her colleagues based on a perception that she had an alcohol use disorder. I also find that the College responded appropriately to her workplace complaint, and met its obligations to her under the Code.

[7] Finally, Dr. Kane’s Retaliation Allegations arise from the College’s attempts to warn and then discipline her about the content of some of her emails. Dr. Kane was first warned about her emails in May 2018. In February 2019, the College gave Dr. Kane a formal written reprimand for emails in which Dr. Kane had referred to the disability management specialist as “a total ignoramus, medically speaking”; put the job title “disability management specialist” in quotation marks, and referred to the disability management specialist’s “medical advice” as “idiotic”. In September 2020, the College gave Dr. Kane a second written reprimand for her emails to the Acting Dean, in which she requested a different office assignment, failing which she would “put together a package covering all the issues concerning my treatment by Douglas College, and deliver that package to the MLA for New Westminster”. The College disciplined her for communicating in a manner that was “disrespectful, insubordinate, and not in alignment with the attitude and behaviour expected of a Faculty Member towards their Dean, or any colleague”. I find that the College did not retaliate against Dr. Kane by disciplining her. The evidence supports that the discipline was related to Dr. Kane’s conduct and not the prospect that she might file a human rights complaint.

[8] I begin by introducing the witnesses who testified, and my approach to the reliability and credibility of their evidence. I then set out my reasons about each of the Accommodation Allegations, Discriminatory Harassment Allegations, and Retaliation Allegations in turn.

II WITNESSES

[9] Dr. Kane testified on her own behalf. In addition, Dr. Kane called: two long-term friends, Evan Fedora and Karolina Jeftic; one friend and former colleague, Douglas Simak; and her mother, Diane Kane.

[10] Dr. Kane also called two medical professionals:

a. Dr. Ric Arseneau. Dr. Arseneau is an internal medical doctor who specializes in CFS, Fibromyalgia, long-COVID and other central nervous system sensitivity disorders.

Dr. Arseneau testified about an expert report he prepared for the hearing, which was entered into the record. He also testified about his involvement in Dr. Kane’s accommodation process.

b. Dr. Arthur Bergman. Dr. Bergman is Dr. Kane’s family physician. He testified about Dr. Kane’s medical history and his involvement in Dr. Kane’s accommodation process.

[11] The College called fourteen witnesses. The following testified about Dr. Kane’s accommodation requests and/or their involvement in disciplining Dr. Kane:

a. Laura Ward. Ms. Ward is the College’s disability management specialist. Ms. Ward testified about the College’s accommodation process generally, and her involvement in Dr. Kane’s accommodation requests specifically.

b. Rebecca Maurer. Ms. Maurer is the Associate Vice-President of Human Resources. Ms. Maurer supervises Ms. Ward. In addition to testifying about her involvement in Dr. Kane’s accommodation requests, Ms. Maurer, testified about the College’s discipline of Dr. Kane and the College’s investigation into the workplace complaint.

c. Karen Janssen. At the time of the hearing, Ms. Janssen was the Associate Director of Human Resources. During the events at issue, Ms. Janssen was the College’s HR manager of advisory services. She testified about her involvement in the disciplinary process that resulted in Dr. Kane receiving discipline letters from the College. She also testified about Dr. Kane’s request for a different office.

d. Christine David. Ms. David is the administrative associate responsible for scheduling classrooms in the faculty. Among other things, she testified about the College’s classroom booking system.

e. Sharn Tyakoff. Ms. Tyakoff is a retired professor who worked for the College for 35 years. In the summer 2020, Ms. Tyakoff was the Acting Dean. Among other things, Ms. Tyakoff testified about emails Dr. Kane sent to an employee in facilities and a meeting she attended with Dr. Kane to discuss those emails.

[12] The College called the following witnesses to testify about the events at issue in Dr. Kane’s workplace complaint and the Discriminatory Harassment Allegations. At the time of the events at issue, each of the following witnesses were professors in the Philosophy Department and colleagues of Dr. Kane.

a. Edrie Sobstyl. Dr. Kane accused Dr. Sobstyl of bullying and harassing her at work based on the perception that she had an alcohol use disorder. Dr. Sobstyl testified about her time working with Dr. Kane, her interactions with Dr. Kane in person and over email, and her involvement in the investigation into Dr. Kane’s allegations against her.

b. Darcy Cutler. Mr. Cutler shared an office with Dr. Kane. He testified about his interactions with Dr. Kane. He was the Chair of the department at the time of the investigation into her workplace complaint.

c. John Bruin. Mr. Bruin testified about his involvement in the investigation into Dr. Kane’s workplace complaint and a department meeting in 2018.

d. Jill Fellows. Ms. Fellows was also a colleague of Dr. Kane’s. She admittedly could not recall much when asked questions in both direct and in cross. Her testimony neither supports nor undermines Dr. Kane’s own evidence and I have not placed any weight on her evidence.

e. Sarah Rossiter. Ms. Rossiter testified about her involvement in the investigation into Dr. Kane’s workplace complaint.

f. Devyn Shaw. Mr. Shaw testified about his involvement in the investigation, which was limited because he did not work at the College when the alleged events occurred.

g. Kira Tomsons. Ms. Tomsons testified about her involvement in the investigation.

[13] The College also called the following witnesses to testify about the College’s response to the workplace complaint:

a. Paula Boddie. Ms. Boddie investigated Dr. Kane’s workplace complaint. She testified about her investigation into the allegations and her investigation report, a copy of which is in evidence.

b. Kathy Denton. Ms. Denton is the College’s president. Ms. Denton testified about her involvement in Dr. Kane’s appeal of the outcome of the investigation into the workplace complaint.

III CREDIBILITY AND RELIABILITY

[14] The central facts relating to Dr. Kane’s Accommodation Allegations and Retaliation Allegations are not in dispute. However, there are significant discrepancies in the parties’ evidence regarding Dr. Kane’s Discriminatory Harassment Allegations. These discrepancies have made it necessary for me to make findings of credibility and reliability and to decide which evidence to prefer. I make my specific findings on disputed issues below, in my analysis. Here I outline the general principles I have applied and my broad findings of credibility and reliability.

[15] I start from the presumption that all the witnesses are telling the truth: Hardychuk v. Johnstone, 2012 BCSC 1359 at para. 10. Where a witness’s testimony conflicts with other evidence, I must assess the trustworthiness of their testimony “based on the veracity or sincerity of a witness and the accuracy of the evidence that the witness provides”: Bradshaw v. Stenner, 2010 BCSC 1398, aff’d 2012 BCCA 296, leave to appeal refused, [2012] S.C.C.A. No. 392 (QL) at para. 186. In some cases, a witness’s evidence may not be trustworthy because they have “made a conscious decision not to tell the truth”: Youyi Group Holdings (Canada) Ltd. v. Brentwood Lanes Canada Ltd., 2019 BCSC 739 [Youyi] at para. 89. In other cases, a witness may testify honestly but their evidence may not be reliable because of their inability to accurately observe, recall, or recount the event: R. v. H.C., 2009 ONCA 56 at para. 42; Youyi at paras. 89-90. In that case, I may not safely rely on their testimony where it conflicts with others’ who are better positioned to give accurate testimony.

[16] An acceptable methodology for assessing credibility, which I apply here, is to first consider the testimony of a witness on its own followed by an analysis of whether the witness’ story is inherently believable in the context of the facts of the entire case. Then, the testimony should be evaluated based upon the consistency of the evidence with that of other witnesses and with documentary evidence. At the end, my role is to determine which version of events is the most consistent with the preponderance of probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions: Youyi at para. 91.

[17] I note that there were times where I accepted only some and not all a witness’s evidence, consistent with the Supreme Court of Canada’s approach to credibility described in R. v. François, 1994 CanLII 52 (SCC) at 837.

[18] I am satisfied that Dr. Kane’s witnesses generally testified honestly and to the best of their ability. One witness, Mr. Simak, struggled significantly with his memory, and I found his evidence unreliable. His testimony did not factor into my decision.

[19] I accept that Dr. Kane’s mother testified honestly. She spoke about her first-hand observations of Dr. Kane’s health and wellbeing. She also testified about events at the College. I have not placed any weight on her evidence about events at the College because it was based on what Dr. Kane told her and not on her own observations.

[20] Turning to the College’s witnesses, Dr. Kane submits their evidence was not in harmony and internally consistent. However, I generally found the College’s witnesses to be straightforward, consistent with each other and the documentary evidence, and unshaken during cross-examination. I find the inconsistencies identified by Dr. Kane do not undermine the overall credibility and reliability of the College’s witnesses. For example, Dr. Kane argues Ms. Ward and Ms. Maurer testified under cross-examination that Ms. Ward alone decided whether to grant accommodations at the College. Dr. Kane argues this statement was undermined by Ms. Ward’s evidence that she spoke with Ms. Maurer to get permission to order a vocal amplification system for Dr. Kane because it cost around $400. In my view, this is not evidence of an internal inconsistency. It is possible for Ms. Ward to make the decisions about accommodation requests and seek budgetary approval from a senior leader. It is also not evidence, as Dr. Kane suggests, that Ms. Maurer had a role in deciding whether Dr. Kane’s medical accommodations would be granted.

[21] Respectfully, I have reached a different conclusion about Dr. Kane’s evidence. Where her testimony conflicted with the documentary evidence or evidence given by other witnesses, I have generally preferred the other evidence. Here I identify some general concerns about the reliability of Dr. Kane’s testimony.

[22] First, I found Dr. Kane to have a fixed mindset that closed her off to alternative explanations for events and at times this has made her an unreliable witness. She strongly and unwaveringly believes that she has been the victim of wrongdoing. In my respectful view, this has coloured her ability to perceive events accurately, particularly when they may paint her in a negative light.

[23] Second, I agree with the College that Dr. Kane tended to make assertions of fact that were based on her own speculations and unsupported by evidence. I found Dr. Kane’s testimony was at times speculative and based on a perspective of events that did not always line up with the documentary evidence before me, as well as the evidence of other less interested witnesses. For example, she testified – and repeated in her closing submissions – that a certain classroom had failed a carbon dioxide test. In cross-examination, she admitted this was based on her assumption. In fact, there was no evidence that the classroom had failed a carbon dioxide test and the College denied this was the case. Another example is when counsel asked Dr. Kane for evidence to support her assertion that one individual at the College had targeted her. She replied, “do I have to answer?” Counsel then put to her that this assertion was speculation, to which she responded, “it is based on evidence and we’ll see.” There was no evidence that any individual targeted Dr. Kane.

[24] Third, Dr. Kane was prone to exaggeration. For instance, Dr. Kane testified that she did not want to work at the College’s Anvil campus because she would have to wait for an elevator for 45 minutes. On cross, she admitted that this was based on information students told her and not on her direct experience. The evidence of other witnesses, which I find more likely, was that there may be a five-minute wait for the elevator during transition times between classes. In another example, Dr. Kane testified that she “thinks” that when she asked for a microphone, Ms. Ward asked her to fill out a lengthy form, asking questions like “how many squats can you do.” However, the evidence before me shows that Dr. Kane was not asked to fill out a lengthy form. Rather, when Ms. Ward wrote to Dr. Kane, she set out some guidance on the information she required from Dr. Kane’s doctor and attached a form for her doctor, not Dr. Kane, to fill out. This is an example of how Dr. Kane described events in her life in a manner that did not line up with the evidence before me.

[25] The cumulative effect of Dr. Kane’s tendencies to speculate, exaggerate, and misperceive important events is that I have found some of her evidence to be unreliable or even false. In saying this, I do not suggest that Dr. Kane was deliberately lying or trying to mislead the Tribunal. I accept that she was doing her best, under very difficult circumstances.

[26] I specifically have not accepted the College’s arguments that Dr. Kane was not a credible witness because she was unable to remove her self-interest in the case from her evidence. In my view, this argument alone is not an indication that Dr. Kane was not a credible witness. This Tribunal has noted that parties inherently have personal interests at stake: Mema v. City of Nanaimo (No. 2), 2023 BCHRT 91 at para. 24.

[27] Further, while I agree with the College that Dr. Kane was at times during the hearing defensive, argumentative and evasive, I do not agree that this itself indicates she was not a credible witness. Rather, I accept Dr. Kane’s explanation that this behaviour was a response to the difficult conditions of the hearing. In that regard, Dr. Kane testified for ten days and was under cross-examination for eight of those days. She perceived that counsel for the College was badgering her. Although I do not accept that characterisation of counsel’s conduct, I accept that cross-examination was difficult. I generally found Dr. Kane’s demeanor during the hearing to be consistent with her tone and manner in the documentary evidence before me, which was also at times defensive and argumentative. It is understandable that a person living with multiple physical disabilities who is struggling to live her life as she formerly lived it would have days where she is not at her best, particularly so during a stressful hearing that spanned two years.

[28] Overall, in light of Dr. Kane’s tendency to misinterpret evidence and to make speculative assertions, where there are conflicts in the evidence, I have usually preferred the evidence of other witnesses over Dr. Kane’s. When it is necessary, I explain my reasons for doing so throughout this decision.

[29] In the following sections, I set out my findings and analysis of the Accommodation Allegations, Discriminatory Harassment Allegations, and Retaliation Allegations.

IV ACCOMMODATION ALLEGATIONS

[30] The test for discrimination in violation of s. 13 of the Code has two parts. First, Dr. Kane must show that she has one or more disabilities, she was adversely impacted in her employment, and one or more of her disabilities were a factor in that adverse impact: Moore v. British Columbia (Education), 2012 SCC 61 at para. 33. The Tribunal refers to this as the complainant’s case: Vik v. Finamore (No. 2), 2018 BCHRT 9 at paras. 48-50. If Dr. Kane proves her case, then the burden shifts to the College to justify the impact as a bona fide occupational requirement: Code, s. 13(4). This includes proof that the College met its duty to accommodate Dr. Kane. I refer to this as the respondent’s justification defence.

[31] There is no dispute that Dr. Kane has disabilities protected by the Code, namely a voice disorder and CSS. Her Accommodation Allegations relate to her requests for three types of accommodations:

a. Voice amplification: There is no dispute that Dr. Kane has proven the elements of her case related to her request for voice amplification. This allegation turns on whether the College met its duty to accommodate Dr. Kane, between November 2018 and March 2020.

b. Classroom assignment: There is no dispute that Dr. Kane has proven the elements of her case related to her request for classroom assignment up until the onset of the COVID-19 pandemic. This allegation turns on whether the College met its duty to accommodate Dr. Kane between April 2019 and March 2020.

c. Office assignment: The College disputes that Dr. Kane has proven that her request for an office reassignment was related to her disabilities. I find that she has proven the elements of her complaint, from August 2019 up until the COVID-19 pandemic. During that period, the allegation turns on whether the College met its duty to accommodate Dr. Kane. After the pandemic, I am not satisfied that Dr. Kane faced disability-related barriers related to her office, and the College’s duties were not triggered.

[32] Next, I set out my findings of fact about the events giving rise to Dr. Kane’s Accommodation Allegations. Emails exchanged between Dr. Kane, Ms. Ward and other College employees have provided me a detailed contemporaneous account of what occurred. Witness testimony about the accommodation process has filled in gaps in information and provided a view into the parties’ differing perspectives of what happened. I have not referred to all the emails and documents that were sent to and from various individuals in the period at issue. I have, however, read and considered them all.

A. Events giving rise to Accommodation Allegations

[33] Dr. Kane has been a tenured, philosophy professor at the College since 1998. She was represented in her employment by the Douglas College Faculty Association [DCFA].

[34] Between 2012-2015, Dr. Kane’s health started to decline. In 2016, she received a preliminary diagnosis of myalgic encephalomyelitis, more commonly known as chronic fatigue syndrome, and fibromyalgia. Dr. Kane was formally diagnosed in 2018. As noted earlier, I refer to Dr. Kane’s CFS and fibromyalgia together as “central nervous system sensitivity syndrome” or “CSS” because that term is used by both Dr. Kane and her specialist, Dr. Ric Arseneau (though it itself is not a diagnosis). There is no dispute that Dr. Kane has CSS, and this is a disability under the Code.

[35] By 2018, Dr. Kane had also developed an occupational voice disorder after years of teaching. There is no dispute that this disorder constitutes a disability under the Code.

1. November 2018 – January 2019: Initial request for voice accommodation

[36] Fall 2018 was a non-teaching semester for Dr. Kane. On November 17, 2018, in anticipation of returning to teaching in January, Dr. Kane wrote to Ms. Ward, the College’s disability management specialist. She advised that she had developed a chronic voice disorder from teaching at the College, and asked if the College could provide her with a personal microphone system for teaching. Dr. Kane asked that it be “new and lightweight” and “easy to use,” and she let Ms. Ward know that she could provide her with a copy of a doctor’s note “if needed.”

[37] The College’s “Accommodation Policy for Employees” [Accommodation Policy] governs requests for medical accommodation. In that policy, the College commits to taking “reasonable steps to accommodate employees … with physical or mental disabilities”. It provides that employees seeking a disability-related accommodation “must provide the College with suitable medical information which establishes the existence of a disability and supports the requirement for accommodation.” The necessary medical information will depend on individual circumstances, and “must enable the College to determine the specific job accommodations that are medically required because of the applicant’s disability.”

[38] On November 19, 2018, Ms. Ward replied to Dr. Kane, informing her that she needed some information from Dr. Kane’s doctor before she could purchase equipment. Ms. Ward told Dr. Kane that the doctor’s note she already had “might be sufficient,” if it had all the information she needed. Ms. Ward informed Dr. Kane that she required the following information:

1) The specific limitations and/or restrictions (things you cannot do or should not do because of the direct risk of worsening your medical condition – this would include the tolerance level, such as duration or weight, of the activity)

2) Confirmation that these are related to a diagnosed medical condition (diagnosis not required)

3) The expected durations of the limitations and/or restrictions (or that they are expected to be permanent).

[39] Ms. Ward also told Dr. Kane that this information could be provided in a “free-form report” or in a “Physician’s Assessment of Work Abilities” form, a copy of which Ms. Ward attached to the email. Ms. Ward noted that the form or report must be dated and the physician’s name, contact information and signature must be on the form or report. Finally, Ms. Ward advised, “please let me know if you have any questions about this process.”

[40] In response, Dr. Kane sent Ms. Ward a note from her family doctor, Dr. Bergman, asking that she “be provided with [a] microphone for teaching for medical reasons.” Ms. Ward responded to let Dr. Kane know that the note did not include enough detail. Ms. Ward wrote:

Thank you for the note, unfortunately there is not enough detail for the accommodation. As I had indicated […] I do need details on the specific limitations and restrictions, duration, and confirmation that this is related to a diagnosed medical condition.

If you could please have your doctor fill out the attached form in its entirety, it should provide the level of detail that I seek.

Please let me know if you do have any further questions.

[41] A few weeks later, on December 17, 2018, Dr. Kane wrote back to say she was worried that she would not have “what I require medically for my return to teaching in early January as I cannot get in to see my doctor before then to get your desired additional information.” Dr. Kane also expressed her view that the note she provided “was clear and sufficient.” Finally, she informed Ms. Ward that she would not be seeing her “laryngologist” until April 2019.

[42] Ms. Ward replied on December 18, 2018, telling Dr. Kane that the information did not need to come from a specialist and that her family physician could provide all the medical information required. Ms. Ward then informed Dr. Kane that the College library might have some vocal amplification units she could borrow while she worked on getting the information Ms. Ward needed.

[43] Dr. Kane responded to let Ms. Ward that the situation was causing her some “unnecessary stress” and that she “would like to have [her] own vocal amplification system as per [her] doctor’s note, ideally *before* returning to work.” Dr. Kane then stated, “also, second-hand microphones or borrowed ones from the library as you suggest as an alternative are a notorious breeding ground for bacteria and viruses and are NOT recommended by voice specialists, esp. for those who already suffer from voice problems.”

[44] On December 20, 2018, Ms. Ward replied, “unfortunately, there is a process which needs to be followed in order for me to purchase items for an accommodation. I will be happy to work with you to get what you need when I have the documentation that I require.”

[45] Next, Dr. Kane asked Ms. Ward if she could speak with Ms. Ward’s “superior.” Ms. Ward advised Dr. Kane that she reports to Ms. Maurer, who was already aware of Dr. Kane’s request. Ms. Ward also told Dr. Kane that Ms. Maurer was away on vacation. Ms. Ward then directed Dr. Kane to the Accommodation Policyand concluded her email:

It appears that you will not be able to get the information to me by the beginning of this next semester, however as soon as you are able, we will be able to work on this accommodation request. Please let me know if you have further questions on the process.

[46] Dr. Kane wrote back:

You say that requests “may” but not “must” be denied in the absence of suitable medical information.

So a note from a medical doctor (not a total ignoramus, medically-speaking, “disability management specialist”) stating clearly that a microphone is advised for teaching for medical reasons does not constitute suitable medical information to support a microphone for teach for medical reasons?!

Very strange indeed!

I note here that Dr. Kane would later be disciplined for the tone of this email to Ms. Ward. I return to this below, in my discussion of the Retaliation Allegations.

[47] Also on December 20, Dr. Kane wrote to Ms. Janssen, the HR Manager. That email reads in part:

I am faculty and am having a problem with the HR “disability manager,” with getting medical accommodations which were advised by my doctor. I cannot return to work without these accommodations, yet Ms. Ward refuses to accommodate me until further info is obtained; yet I cannot get this (superfluous) additional info until AFTER I have to begin to teach, which is soon (winter semester).

[48] Ms. Janssen replied on December 21, explaining the accommodation process and inviting Dr. Kane to contact Ms. Ward’s direct manager, Ms. Maurer.

[49] Dr. Kane responded to Ms. Janssen later that same day. Her email in full reads:

Hi, and thanks for getting back to me.

The real problem here is that I have a medical note stating I need a microphone for teaching. I am surprised the college is so woefully ignorant of the prevalence amongst lecturers of voice disorders, and of the nature of voice disorders. They tend to be chronic unless surgery is undergone; the limitations on a person with such a disorder are they should not teach without one (as stated in my note); and the diagnosed condition is clearly a voice disorder due to vocal overuse due to teaching for 20 years without a microphone!

The additional info sought is clearly implied or self-explanatory by what has been advised already by the doctor’s note.

But since I cannot obtain the additional superfluous info until AFTER I start teaching this winter, I will be working for some duration in what is, for me, an unsafe working condition, contrary to the law and to DC’s own workplace safety code.

Is that how Douglas College treats its faculty? Well apparently so! Thanks a lot!

[50] Ms. Janssen responded by suggesting that one option would be for Dr. Kane to purchase a device herself to “speed up the process” and then, “subject to approval of the accommodation in the new year,” the College could reimburse her. Ms. Janssen informed Dr. Kane that she had spoken with Ms. Ward, and the requested device would cost approximately $400. Ms. Janssen shared a couple of links to options suggested by Ms. Ward.

[51] Dr. Kane replied:

Okay, that was never suggested by the individual who is in charge of this case. Instead she suggested using a second-hand mic, which are notorious breeding grounds for bacteria and viruses—terrible advice for someone with voice problems! I don’t think people with zero medical knowledge like Laura Ward should be giving advice which pertains to people’s health. It’s dangerous.

[52] Following their exchange, Ms. Janssen wrote to Ms. Maurer explaining the situation. She attached copies of emails between Ms. Ward and Dr. Kane and closed her own email by stating “the faculty member has been less than respectful at times.” Ms. Janssen also informed Ms. Maurer that Ms. Ward had discussed the accommodation with the president of the DCFA, Len Millis, who, according to Ms. Janssen, agreed that Dr. Kane “needs to follow process.”

[53] In addition to Ms. Janssen, on December 20, 2018, Dr. Kane contacted Nancy Constable, a member of the College’s health and safety committee. A copy of that email is in evidence. It repeats much of what has already been covered above. Ms. Constable replied stating that she had left a message with Ms. Ward to discuss the situation because “possibly there is a gap in information of sort.”

[54] On January 3, 2019, after speaking with Ms. Ward, Ms. Constable wrote to Dr. Kane to say that she understood that Ms. Ward was waiting for more detailed information from Dr. Kane’s doctor and had suggested some possible interim solutions. She also referred Dr. Kane to the Accommodation Policy.

[55] Dr. Kane replied expressing her concern that the Accommodation Policy was more important than “employee health” and that Ms. Ward’s suggested solution of borrowing a microphone from the library was terrible advice. That email concludes: “the policy is idiotic, and the medical advice from non-medical laypersons like Laura is too, and dangerous. What a place to work!” Ms. Kane would later be disciplined for the tone of this email.

[56] Ms. Constable forwarded the correspondence between her and Dr. Kane to Ms. Maurer, stating “FYI only and not intended to be a complaint against MK. I’m not planning to respond.”

2. January – March 2019: VoiceBuddy

[57] On January 11, 2019, Dr. Kane sent Ms. Ward an updated medical note. It was nearly identical to the first note provided by Dr. Bergman. It reads: “above patient advised to be provided with microphone for teaching for diagnosed medical condition permanently.” Ms. Ward’s evidence at the hearing was that despite her concern that the new note did not provide the information she requested on Dr. Kane’s limitations and restrictions, she decided to order Dr. Kane a vocal amplification system called the VoiceBuddy. While the second note was substantially the same, it did state that Dr. Kane needed a microphone “permanently” and for “medical reasons.”

[58] On February 5, 2019, the VoiceBuddy arrived, and Dr. Kane and Ms. Ward exchanged a few emails about when Dr. Kane would pick up the VoiceBuddy. In one of those emails, Dr. Kane apologized to Ms. Ward for being “a bit surly and unpleasant.” Dr. Kane picked up the VoiceBuddy on February 25, 2019.

[59] On March 21, 2019, Dr. Kane wrote to Ms. Ward to say that unfortunately the VoiceBuddy was not helping her in the classroom. It turned out the VoiceBuddy was not suitable for classroom teaching, and students had complained that it was hard to hear her. Dr. Kane attached a letter from her voice specialists to the email, explaining that the VoiceBuddy did not meet her “accommodation requirements.” The letter continues, recommending that the College provide Dr. Kane with a vocal amplification system such as the Front-Row-to-Go System [Front Row System].

3. March 2019: Front Row System

[60] Ms. Ward ordered the Front Row System and wrote to the College’s facilities department about how Dr. Kane would use the System. Ms. Ward also spoke with Dean Flemming about the logistics involved in using the System. They determined that the best approach would be for Dr. Kane to use a cart to transport the System to her classes because mounting the system to a classroom wall would be expensive and would limit the classrooms to which Dr. Kane could be assigned. Ms. Ward’s evidence was that purchasing a wall-mounted version of the System would cost the College around $1300. A wall-mounted system would also require the College to assign Dr. Kane to the same classroom permanently or to install Front Row Systems in several classrooms that could be assigned to Dr. Kane.

[61] On April 12, 2019, Ms. Ward contacted Dr. Kane to let her know that they were getting her the Front Row System she requested and that while the System is relatively light, the College would be able to put it on a cart for her to move it in and out of her classrooms as needed. Ms. Ward explained that this is what they had done for others. Ms. Ward then asked if Dr. Kane had room to store the cart and Front Row System in her office when she was not using it in a class.

[62] Dr. Kane responded saying her office was too crowded for a cart. She also informed Ms. Ward that she did not want to push a cart around from class to class “unless absolutely necessary.” Dr. Kane asked if she could just leave the cart in her classroom and expressed that she thought the Front Row System would be affixed to a wall.

[63] Ms. Ward replied explaining why the Front Row System could not be stored in a classroom and said they could look for a location where the cart and System could be stored. Ms. Ward explained that other employees use similar systems with a cart and the College has been able to find them a storage room or something similar.

[64] Dr. Kane wrote the following response, on April 13, 2019:

Hi again Laura,

On second thought and after consultation with my voice therapist, I really don’t want the burden of having to wheel a cart around before and after and between classes. Thanks anyway. I will take it up with WorkSafe BC, I guess.

[65] Ms. Ward replied on April 18, 2019, informing Dr. Kane that she had canceled the order for the System “at your request.”

[66] Next, Dr. Kane wrote back to Ms. Ward, stating, “I didn’t actually request a cancellation (of course) of my accommodation for my occupational voice disability; I need it and the college is required by law to provide it, as you must know.” The email continues:

But I was advised that the equipment should be wall-mounted […]. It would be very burdensome indeed to have to wheel around a cart with me from class to class, along with all the other things I carry to and fro for classes, for the rest of my teaching days. Moreover, I don’t even have room to store it in my office, so it would require a lot of extra trips and time to fetch it, test it, set it up in each environment I use it in, etc. If I could just leave it in the classroom it might be okay; but you said this would be “inappropriate,” though many classrooms have computers, elmo’s etc in them (affixed). [as written]

[67] Dr. Kane’s evidence is that by this point, her specialist had advised her that she should not have to move the Front Row System around because of her CSS. The College, importantly, did not know this.

[68] Next Dr. Kane asked if it was possible to keep the cart safely tied up in her summer classroom. Ms. Ward responded on April 24, 2019, suggesting that they have an in-person conversation. This was a theme in Ms. Ward’s communications: she wanted to meet with Dr. Kane to discuss her accommodation requests and the information the College needed. However, Dr. Kane was not willing to meet until she had gathered more medical documentation. They would, eventually, only have one meeting, nearly one year later, on March 3, 2020.

4. April 2019: Request for classroom accommodations

[69] On April 27, 2019, Dr. Kane responded to Ms. Ward’s April 24 email for an in-person meeting, asking to “delay this meeting […] so I can get all my notes etc. together before we meet.” The email continues:

No point in me asking for something for the tenth time just to be told “no” because my requests are misinterpreted as non-medical or because my doctors’ notes are deemed insufficient. I spoke to my internist yesterday about all this and notes should be forthcoming soon.

[70] Dr. Kane reiterated that she needs a “vocal amp” but one that is not “greatly burdensome” for her. Dr. Kane then said the following:

I also need some light in my classrooms, preferably natural light, and preferably not on the excessively HOT (in the summer) inner side of the building. I note that the college has posters up and information on its website about “scent awareness on campus.” But it doesn’t seem to realize that some people are genuinely sensitive to and pained by those awful classroom lights we have, too.

[71] This is the first time Dr. Kane mentions classroom conditions to Ms. Ward. Prior to this point, Ms. Ward and others at the College were only aware of Dr. Kane’s request for a vocal amplification system and only knew about her voice disorder. They were not aware of her CSS.

[72] On April 29, 2019, Ms. Ward wrote to Dr. Kane saying, “I can’t move forward with any further accommodation request without us being able to meet.” Ms. Ward informed Dr. Kane that if she has other medical issues that require accommodation, she would need “some additional information from your physician.” The email continues:

The duty to accommodate arises when an employee has a medical disability, which adaptations must be made in the workplace in order to allow a person to do their job within their limitations. Not every medical condition may trigger to the duty to accommodate. If you are going back to your doctor to obtain further information, please think about whether there are diagnosed disabilities which are triggering the need for accommodation in the workplace. Certainly when we are able to meet, you can also discuss any preferences for work locations, classrooms etc with [Dean Flemming].

I would like to arrange a meeting as soon as possible, so please let me know when you are available.

[73] Dr. Kane responded the same day. In her response she writes:

But like I said, there is no point in meeting until I have all the (other) documents in hand. Even with documents, this process has so far yielded absolutely no help to me. Actually, it’s just gotten me in trouble with the College and cost me time and money.

Your latest email seems to carry the negative suggestion that my (other) disability needs might not “trigger” an accommodation, which is odd to hear in advance of even getting any documents pertaining to my issues. It reminds me of the original meaning of “prejudice,” which is to judge in advance (of gathering evidence).

But certainly my internist (and expert in the field) thought they most definitely should “trigger” an accommodation.

[74] Dr. Kane concludes by saying she would let Ms. Ward know when she has “everything else ready for a meeting.” This is the first time Dr. Kane conveyed to Ms. Ward that, in addition to her voice disorder, she has another disability, though she did not provide any details.

[75] On April 30, 2019, Ms. Ward wrote to Dr. Kane again, copying Dean Flemming and Mr. Millis. Ms. Ward informed Dr. Kane that at this point they could not move forward with any adjustments to Dr. Kane’s “current accommodation” without a meeting. Ms. Ward explained:

We would like the opportunity to meet with you prior to you going back to see your doctor or any specialists so that we have an opportunity to discuss what information I may need for an accommodation. Once I am able to gather some more information from you, I can write specific questions to your doctor to clarify any points that are necessary to ensure that we have all the required information to make a decision.

[76] Ms. Ward then assures Dr. Kane that she is not judging her requests in advance, noting “this was the first that you had brought up the scent and light issues, I was simply explaining these issues may or may not be related to a disability and that there would be a different process that would be followed depending on whether this was a medical concern or not.” Ms. Ward concludes by suggesting they meet Monday, May 6, 2019, if Mr. Millis and Dean Flemming were available.

[77] Dr. Kane replied that the Monday would not work for her. She also stated that she did not think it would be worthwhile discussing things with “disability management specialists without (or event apparently with) medical documentation in hand.” The email continues:

Case in point: this will be my second semester without adequate vocal amp assistance, in spite of having medical notes. The Voice Buddy was delayed in getting to me, and was garbage anyway. The unit now might be better, but I am not wheeling around a cart with me for the rest of my teaching days on top of everything else I lug around to and from classes.

[78] Ms. Ward replied to let Dr. Kane know that she would now consider Dr. Kane’s request for accommodation closed, in light of her “refusal to meet in person.” Ms. Ward then asked if Dr. Kane could return the VoiceBuddy unit.

[79] Dr. Kane wrote back the same day, stating she was not refusing to meet in person but was waiting to have “all the medical documentation I need so it won’t be a waste of everyone’s time.” The email continues:

After all, what exactly can happen in person (without further medical and/or legal notes) that could possibly help me? I already have notes stating I need a vocal amp from three physicians, but no vocal amp. The college seems obdurate that I wheel this thing around with me everywhere; I’ve already told you that would be burdensome to me; but to no avail. Clearly, it will be a doctor or a lawyer or both who is able to get me the accommodations I need. I cannot rely on the kindness or competence of my employer, it sems, at least not without a lengthy and by now irritating (especially to my throat) battle.

thanks anyway.

[80] Ms. Ward and Dean Fleming spoke later that day to discuss the email chain between Dr. Kane and Ms. Ward. A copy of their meeting notes for that call is in evidence. It shows that after reviewing the email exchange between Dr. Kane and Ms. Ward, Dean Flemming agreed that Dr. Kane would have to meet with Ms. Ward to discuss any further accommodations. The note also states, “classroom light is not currently an accommodation for which we have medical documentation.”

5. May 2019: Classroom scheduling

[81] At Dr. Kane’s request, which Dean Flemming supported, Ms. David scheduled Dr. Kane’s summer classes in room N4215. On May 6, 2019, Dr. Kane wrote to Dean Flemming to see if she could move into the classroom across the hall from room N4215to teach her summer courses because it is “much cooler (temperature-wise) on that side of the building.” Although he had noted in his meeting with Ms. Ward that Dr. Kane would have to meet Ms. Ward to discuss any accommodations, Dean Flemming responded to Dr. Kane’s May 6 email and suggested that if she wanted to arrange “to swap rooms for the summer” she could contact Ms. David.

[82] Next, Dr. Kane wrote to Ms. David to inquire about moving across the hall. The semester had already started. Ms. David checked with Room Bookings, who advised her the room was not available. Ms. David copied Dean Flemming and Dr. Sobstyl on her replies to Dr. Kane. I note that by this point in time, Dr. Sobstyl was the Chair of the Department. In her email, Ms. David shared the following response from Room Bookings with Dr. Kane:

Unfortunately the requested spaces aren’t available for any of the classes. If it poses a major issue we can look into alternative rooms outside this selection but the courses will most likely end up scattered across the campus (some availability may only be in Anvil as well). Any physical room adjustments/additions will still need to go through the aforementioned accommodation process via HR.

[83] Ms. David also informed Dr. Kane that they were “currently scheduling for Winter 2020” and that if she had any special room requests, she should let her Chair know. Ms. David ends the email stating “any requests for accommodations would need to go through our Dean, John Flemming. However, like any other employer, the College is limited as to what it can accommodate.”

[84] After this exchange, Dr. Kane wrote to Dean Flemming to ask for some fans for her classroom and office if she could not move, noting it was “infernal on this inner side of the building in summer.” She continued “of course I’ll have notes soon, but I only meet with my specialist every few months […] obviously [Ms. David] is not going to help me, but you did say you want me to be comfortable, probably the kindest thing any non-student has said to me at this college in a while!”

6. Summer 2019: Front Row System and first request for office accommodation

[85] On August 9, 2019, Dr. Kane sent Dean Flemming a letter from Dr. Arseneau. In the letter, Dr. Arseneau informed Dean Flemming that the proposed accommodation for Dr. Kane’s voice disorder “involved having Ms. Kane carry a large cart with the voice-amplifier to and from classes” and that Dr. Kane could not do this because of her “conditions.” Dr. Arseneau then suggested the system be wall-mounted in a “suitable classroom for her.” The letter continues stating:

Due to her disability, Marilyn requires a classroom that is cooler in temperature, preferably with natural light and a door or window that opens to allow for fresh air. Marilyn prefers the classrooms across the hall from where she is usually stationed, on the exterior side of the 4^th floor, as they are cooler in (than the interior rooms) with shaded natural light and have an openable door to the outside air. Even though these classrooms are frequently unoccupied, she tells me her multiple requests to be assigned one of these classrooms have been declined.

[86] Next, Dr. Arseneau explains that Dr. Kane’s medical conditions are “stress sensitive” and “invisible.” He continues noting that Dr. Kane has requested an office away from colleagues in the department of Philosophy, “given that she finds the work culture extremely stressful.” Dr. Arseneau continues stating “this stress is having a negative impact on her symptoms.” He ends saying that he can be contacted in writing if there are any questions. This is the first mention of Dr. Kane’s request to relocate her office.

[87] Dean Flemming forwarded Dr. Arseneau’s letter to Ms. Ward on August 21, 2019. At the hearing, Ms. Ward testified that she had concerns about the letter. First, she testified that Dr. Arseneau stated Dr. Kane was being asked to carry a cart, though she was in fact being asked to push a cart. Second, Ms. Ward testified the letter was not clear about what was medically required versus what was a preference. Third, Ms. Ward was concerned that Dr. Arseneau was telling the College what accommodations it should implement rather than outlining Dr. Kane’s medical limitations and restrictions.

7. September 2019 – January 2020: Requests for medical information and referral to OccuMed

[88] Dr. Kane was on a non-teaching semester from September to December 2019.

[89] Though Dr. Kane had not yet met with Ms. Ward, around September 30, Ms. Ward sent Dr. Kane a letter and medical questionnaire for Dr. Arseneau. Ms. Ward asked Dr. Arseneau to focus on Dr. Kane’s medical limitations and restrictions when filling in the questionnaire, so that she could understand how they impacted Dr. Kane’s ability to attend work and perform her duties. The questionnaire included requests for information about Dr. Kane’s requests relating to (1) her voice amplification system, (2) classroom accommodations, and (3) office location.

[90] Regarding the Front Row System, the questionnaire asked Dr. Arseneau to address the following:

Ms. Kane has been provided a voice amplification system to use in the classroom. It was recommended that she have a high-quality voice amplification system which would be preferred. As these units are fairly heavy, a moveable cart was offered. As per your medical letter, Marilyn is unable to “carry a large cart” owing to her “conditions”. She would not be required to carry anything of this weight. Please outline below the functional physical limitations Ms. Kane has (relevant to employment) which arise due to this medical disability.

[91] Regarding the classroom accommodations, Dr. Arseneau was asked to address:

On the August 7, 2019 letter, it indicates that Ms. Kane “requires a classroom that is cooler in temperature, preferably with natural light and a door or window that opens to allow for fresh air.” Based on the limitations listed in Question 8 and 9 above, please outline the causal relationship between the recommended accommodations and impact on Ms. Kane’s medical condition(s).

Ms. Ward also noted that Dr. Kane had asked for a particular location on campus. Ms. Ward states “please note that Ms. Kane’s preference for classroom location would be consider[ed] a personal request, rather than an accommodation.”

[92] Finally, the questionnaire asked for information about Dr. Kane’s request to relocate offices:

On the August 7, 2019 letter it is noted that Ms. Kane’s medical conditions are “stress sensitive” and due to this she had requested an office location away from her colleagues in the department of Philosophy given she finds the work culture extremely stressful. Based on the limitations listed in Question 8 and 9 above, please outline the causal relationship between the recommended accommodations and the impact on Ms. Kane’s medical condition(s).

[93] On December 4, 2019, Dr. Arseneau responded to Ms. Ward. He provided her with a cover letter dated November 9, 2019, a copy of the completed Questionnaire, and copy of a 58-page report titled “Time for Leadership: Recognizing and Improving Care for those with ME/CFS and ES/MCS.” There is no dispute that Ms. Ward was frustrated by Dr. Arseneau’s response, which she found unprofessional and unresponsive.

[94] In his cover letter, Dr. Arseneau sets out his qualifications and advocates for Dr. Kane to be provided with reasonable accommodations. The following statement is illustrative:

[…] you claim that Douglas College is committed to supporting employees to maintain their health and in supporting ill employees. These are laudable words, but actions speak louder than words. Ms. Kane has medical conditions that require various reasonable accommodations to her work environment to enable her to continue working and maintain her health.

[95] Dr. Arseneau did not answer all of the questions in the questionnaire and, for those questions which he did answer, his answers were brief. He did not address the key issues Ms. Ward brought to his attention. For instance, question 8 required Dr. Arseneau to “specify all the known medically-required functional limitations and/or restrictions due to Ms. Kane’s medical condition(s).” The question continues, providing further explanation for what information is being sought. Dr. Arseneau left this section blank. However, Dr. Arseneau indicates later that the following exacerbated Dr. Kane’s symptoms: “wheeling cart with equipment to/from class along with other classroom needs,” “excessive heat,” “artificial lighting,” “lack of fresh air,” and “stressful work environment.”

[96] After reviewing Dr. Arseneau’s letter and the questionnaire, Ms. Ward had further questions about Dr. Kane’s limitations and restrictions. At the hearing, she explained that the limitation about wheeling a cart was unclear to her. She was also not sure what “excessive heat” meant or if excessive heat, artificial lighting, and lack of fresh air were outright restrictions or just limitations. If they were limitations, Ms. Ward stated she wanted to understand to what extent Dr. Kane could be in an environment with excessive heat, artificial lighting and a lack of fresh air. She also testified that she wanted clarity on the severity of symptoms being exacerbated so that she could understand how to implement an accommodation. Finaly, Ms. Ward testified that for the office relocation, she was unclear on whether Dr. Arseneau was saying Dr. Kane could not be in any position she found stressful.

[97] At this point, Ms. Ward determined that she needed further assistance to implement Dr. Kane’s accommodation requests. On December 6, 2019, she wrote to Dr. Kane to advise her that, having read through the information provided to her by Dr. Arseneau, she was unable to move forward with any “changes to your accommodation.” Ms. Ward then informed Dr. Kane that she was referring her to OccuMed Consulting for medical case management. She explained the following about that process:

Medical case management is a confidential process. Upon receiving your written consent to participate, [the occupational health nurse] will work with you to obtain information regarding your medical fitness to work and identify your specific limitations and restrictions, and she will then work with you and the College to facilitate any modifications and/or other measures that are required to be accommodated, if that can be done without compromising safety or otherwise causing undue hardship. [The nurse] will not share any confidential medical information she obtains through the medical case management process with the College or any other parties …

Ms. Ward invited Dr. Kane to let her know if she had any questions.

[98] Dr. Kane replied asking if the referral applied to the “vocal amp accommodation” which she never received, or “just the accommodations ordered by the specialist Dr. Ric Arseneau?” Ms. Ward responded:

You will recall we cancelled the order of the equipment that was requested, as you indicated that you didn’t “want the burden of having to wheel a cart around before and after and between classes.” The information that was sent regarding this request would be sent to OccuMed if you agree to participate with the medical case management.

[99] Ms. Kane’s response, minutes later, was: “I see the spirit of accommodation for the disabled is dead at Douglas College! What a shame”. Later that day, she wrote to Dean Flemming and Ms. Tyakoff the following:

Hi there … I just wanted to let you know, if you are interested in such things, that I have been seeking various simple and inexpensive disability accommodations from the person responsible for this at DC (Ms. Laura Ward) and even though I have top, leading expert support for this, I am having trouble getting anywhere. I don’t want to return to a workplace that makes me sicker come January.

[100] Dean Flemming replied, copying Ms. Tyakoff and Ms. Ward, to let Dr. Kane know that disability accommodations are “only arranged through the College’s Disability Management Specialist […] based on standard practices.” He then asked Dr. Kane if she can confirm she will “work with Ms. Ward and the College’s standard practices” to put an accommodation in place.

[101] On December 10, Dr. Kane replied to Dean Flemming that in addition to “trying to work with Ms. Ward,” she was also working with the union, a lawyer and “the human rights commission” as well as her doctors because “simple and inexpensive accommodations as ordered by top specialists have been refused by Ms. Ward.”

[102] In the meantime, Charles Odoom, a member of the joint rehabilitation committee, became involved. His role can best be described as that of informal negotiator between Dr. Kane and Dean Flemming and, at one point, Ms. Ward. During their first interaction, Mr. Odoom and Dean Flemming spoke about providing Dr. Kane with a “fresh start” by moving her to a different office.

[103] On December 19, Ms. Ward conveyed the following to Mr. Odoom:

The issue that I have is getting clarity about her disability. Her doctor did respond that she does have a medical condition that is considered a disability, and it is related to a physical condition. On the form that was returned to me, the only restrictions that were checked off were:

·       Pain- moderate/severe

·       Stamina/Energy- moderate/severe

·       Speech- moderate

·       Other (the doctor wrote- hauling cart with equipment to from class exacerbates symptoms)

This does not explain why she would need these accommodations. Then the doctor wrote that heat, artificial lighting and lack of fresh air also exacerbated her symptoms, as did a ‘stressful work environment.’ The information provided does not clearly explain how these things impacted her symptoms, nor did even describe what symptoms she was experiencing, other than pain.

Ms. Ward continues noting that Dr. Arseneau did not indicate that Dr. Kane had any restrictions with physical limitations but rather he left the table where he could indicate as such blank.

[104] Ms. Ward also explains to Mr. Odoom that the information Dr. Arseneau provided to her did not suggest Dr. Kane had cognitive limitations that would “suggest a mental health condition, where a stressful work environment would likely aggravate an employee’s condition.” She continued stating that she did not think an office swap was an option “from a medical perspective.” Ms. Ward concludes by explaining that she did not see how Dr. Kane’s requests were reasonable based on the information provided and that “ideally [she] would have met with [Dr. Kane] to discuss where she sees barriers in the workplace related to her medical condition, so [she] could get clarity from her doctor [who] could list physical limitations.” Ms. Ward also explained that the above was the reason she decided to refer Dr. Kane to OccuMed.

[105] In early January 2020, Ms. Ward and Dr. Kane continued to write to each other about the accommodation process. Dr. Kane wanted clarity on why she was being referred to OccuMed; Ms. Ward directed her to the Accommodation Policy. Dr. Kane expressed her concern about why she was being referred to OccuMed when she had already provided the College “sufficient” medical information, and Ms. Ward relayed to her that the information Dr. Kane had provided to date was not sufficient. The parties remained at an impasse and on January 20, 2020, Dr. Kane advised Ms. Ward that she had been “legally advised not to deal with a nurse from OccuMed, for reasons pertaining to confidentiality; impartiality; and competence/expertise on [her] specific disability.” Dr. Kane concluded, stating “I’ll just try to endure without accommodation for now, as best I can.”

[106] On January 21, 2020 Ms. Ward responded to thank Dr. Kane for letting her know that she did not plan on dealing with OccuMed and that she was considering her request for accommodation closed. On January 29, 2020, Dr. Kane sent Ms. Ward a note from her internal medicine specialist, which says:

[Dr. Kane] has a severe central sensitization syndrome. She is hypersensitive to lighting. She is also sensitive to central air condition. [sic] To function efficiently she needs accommodation.

She would benefit from modified lighting and a modified environment.

In response, Ms. Ward said she would be happy to meet with Dr. Kane. On February 3, Dr. Kane agreed to meet with Ms. Ward.

8. March 2020: Meeting and onset of pandemic

[107] On March 3, Dr. Kane, Ms. Ward, Mr. Odoom and Dean Flemming met. This was their first and only meeting to discuss Dr. Kane’s accommodation requests. During the meeting, Dr. Kane expressed that she was giving up on requesting accommodation for her voice. Dr. Kane noted that classroom lighting remained a big concern, as well as the lack of fresh air. She noted that she could not work in a windowless room and that low ceilings were also an issue. Dean Flemming explained that they would need Dr. Kane to identify more than one classroom that worked for her and Dr. Kane agreed to look for suitable classrooms with Mr. Odoom. They also discussed office locations.

[108] This progress was interrupted by the onset of the COVID-19 pandemic.

9. August – December 2020: Requests for accommodation while working remotely

[109] In March 2020, the College moved all classes online. Around this time, Dean Flemming started a leave, and Ms. Tyakoff became Acting Dean. Dr. Kane taught the remainder of the spring semester, and the summer semester from home. Dr. Kane found that working from home suited her well; as she put it, it was “an answer to [her] prayers”. September to December 2020 was her non-teaching semester.

[110] On August 21, 2020, just before she was about to begin her non-teaching semester, Dr. Kane sent Acting Dean Tyakoff and Acting Associate Dean John Higenbottam a lengthy email about her requests for medical accommodations [the Office Email].

[111] In brief, Dr. Kane informed Ms. Tyakoff and Dr. Higenbottam that her accommodation request for a different office required immediate attention. She wrote that her new office needs to be in the Social Sciences area and needs to have six features that her current office has, which she lists. Dr. Kane directed the recipients not to respond to the contents of her email, other than to confirm her new office assignment. She ends her email by stating that if she does not receive an email concerning her new office by August 31, 2020, she will “put together a package covering all the issues concerning my treatment by Douglas College and deliver that package to the MLA for New Westminster.” Dr. Kane would later be disciplined for the tone of this email. I return to this below, in my discussion of Dr. Kane’s Retaliation Allegations.

[112] At this point, Dr. Kane was not teaching or attending campus. From the College’s perspective, there was no urgency to her request for office or classroom accommodations. Acting Dean Tyakoff had other priorities during a very stressful time, as the College navigated the complexities of the pandemic.

[113] In October, in response to emails from Dr. Kane about classroom assignments, Ms. Ward informed Dr. Kane that her classroom accommodations were on hold until face to face classes resumed.

[114] In November, Dr. Kane reiterated her request for a new office and sent Ms. Ward a medical note from Dr. Bergman that stated Dr. Kane had “a serious medical condition that was stress related and she [was] advised to have office [separate] from colleagues at work to decrease the stress level.” Ms. Ward replied to Dr. Kane on November 24, 2020. She again informed Dr. Kane that the medical information she had provided was insufficient for a medical accommodation. Ms. Ward continued:

I understand that a different office location may be of benefit to you, as you have indicated there are interpersonal issues with colleagues. [Ms. Tyakoff] will be looking at office locations for faculty members once we resume face to face teaching.

[115] In December 2020, Dr. Kane went on medical leave. She says, and I accept, that the disciplinary letter she received from the College on September 21, 2020, affected her health and she had in a flare-up of her CSS symptoms around this time. She felt hopeless about returning to the College. She has not returned to work since.

B. Complainant’s case

1. Disabilities under the Code

[116] There is no dispute that Dr. Kane’s voice disorder and CSS are physical disabilities under the Code. Dr. Kane was under the care of two specialists for her voice disorder, and the evidence shows this was not a temporary ailment but rather a long-term medical condition. There is no dispute that Dr. Kane was diagnosed with CFS and fibromyalgia, both of which are lifelong disabilities. I have copies of Dr. Kane’s medical records in evidence to corroborate as much. These are invisible disabilities, whose effects may not be apparent to most people.

[117] In her submissions, Dr. Kane lists several medical conditions that she argues are Code-protected disabilities. They can be grouped as follows: 1) the occupational voice injury, 2) conditions that are part of her CSS, including CFS, fibromyalgia, post-exertional malaise and myofascial pain syndrome and 3) mental health conditions. In her evidence, the mental health conditions are generally described as comorbidities connected to her CSS. For the purposes of this decision, I consider Dr. Kane’s post-exertional malaise and myofascial pain to be part of her CSS and do not treat them as distinct disabilities under the Code. Regarding Dr. Kane’s mental health conditions, I note that Dr. Kane lists one condition that was not diagnosed until 2021. This is outside the scope of her complaint and so I do not consider it. The other two mental health conditions listed were diagnosed in 2015. She did not make any allegations of discrimination in connection with those two conditions.

[118] For the burden to shift to the College, Dr. Kane must prove she was adversely impacted in her employment in connection with her voice disorder and her CSS.

2. Adverse impacts in employment because of voice disorder

[119] There is no dispute, and I accept, that Dr. Kane suffered adverse impacts in employment because of a voice disorder. Dr. Kane taught classes two out of three semesters a year. During her teaching semesters, Dr. Kane often spoke up to six hours a day. Over time she developed a voice disorder, which impacted her ability to perform her teaching duties. Dr. Kane’s evidence was that she tried to adjust her teaching style by assigning more group work to alleviate her voice disorder symptoms and to give her voice an opportunity to rest. However, at some point, speaking began to hurt Dr. Kane and she needed more to alleviate the disability related barriers she faced in doing her work. The College did not challenge this assertion, and I accept that this was the case. This part of Dr. Kane’s complaint turns on whether the College has proven its justification defence.

3. Adverse impacts in employment because of CSS: classroom conditions

[120] Dr. Kane testified that CSS has made life tough. Among other things, Dr. Kane experiences widespread bodily pain and exhaustion, headaches, post-exertional malaise, and brain fog. She has severe photosensitivity, which makes her hypersensitive to lighting, especially artificial lighting. She is also sensitive to heat and air conditioning. Dr. Kane has lived with these and other symptoms for over a decade. CSS has impacted her ability to perform day-to-day tasks in her personal and her professional life since around 2016, if not before. I accept Dr. Kane’s evidence about the symptoms and effects of her CSS, which was corroborated by the evidence of her doctors.

[121] Dr. Kane says, and I accept, that the environmental conditions of some classrooms at the College adversely impacted her ability to work because of her CSS. She testified about the impact of overhead, artificial lighting in classrooms causing her pain. She also spoke about wearing hats and sunglasses to alleviate this pain. Dr. Kane also spoke about the difficulties of teaching in classrooms that did not have air conditioning or windows and/or doors that could open, as well as the difficulties of teaching in classrooms that were particularly hot during the summer. She also testified about the challenges of teaching in classrooms with lower ceilings, given that lower ceilings placed her closer to the overhead lighting.

[122] There is no dispute, and I accept, that Dr. Kane experienced disability related barriers in employment because of classroom assignments. More specifically, I accept that the conditions of some classrooms on campus adversely impacted Dr. Kane in connection with her CSS due to the lighting and temperature conditions of those classrooms. This part of the complaint also turns on whether the College has proven its justification defence, that is whether it met the duty to accommodate Dr. Kane’s disability-related classroom needs.

[123] Dr. Kane stopped being adversely impacted by classroom conditions when classes moved online during the COVID-19 pandemic. Dr. Kane agreed that online teaching during the COVID-19 pandemic suited her very well. There was no duty on the College during this period to accommodate Dr. Kane’s classroom-related needs, and no discrimination arising from Dr. Kane’s classroom assignments.

4. Adverse impacts in employment because of CSS: office location

[124] Dr. Kane alleges she was adversely impacted in her employment by having an office close to her colleagues in the Philosophy Department. She says that her CSS symptoms are very sensitive to stress, and that working close to people she says bullied and harassed her caused her considerable stress, which exacerbated her CSS.

[125] In support, Dr. Kane relies on the evidence of Dr. Arseneau about how stress impacted her symptoms, and how stress impacts people with CSS more generally. Dr. Kane refers to the following statement made by Dr. Arseneau in a letter dated August 7, 2019:

Ms. Kane’s medical conditions are very stress sensitive. She has serious medical conditions that are “invisible.” She has requested an office away from her colleagues in the department of Philosophy given that she finds the work culture extremely stressful. The resulting stress is having a negative impact on her symptoms.

This was consistent with Dr. Arseneau’s evidence in the hearing about the impacts of stress on a person living with CSS, and how it can exacerbate their CSS symptoms. I accept that evidence.

[126] Dr. Kane cites Tribunal decisions that refer to the general principle that exacerbating a disability can amount to discrimination: Brezinski v. City of Vancouver, 2020 BCHRT 148, at para. 65 and Bourque v. Mole Hill Community Housing Society and another, 2018 BCHRT 268, at para. 41.

[127] I am satisfied that Dr. Kane has established the elements of her case as it relates to the office location allegation, up until classes moved online during the COVID-19 pandemic. I accept Dr. Arseneau’s evidence that CSS is a stress sensitive condition and that Dr. Kane’s CSS symptoms were exacerbated by stress. Until the pandemic, Dr. Kane’s office was in close proximity to Dr. Sobstyl and other colleagues, who she perceived as bullying her. I accept Dr. Kane’s evidence that her office location caused her stress, and that this exacerbated her CSS symptoms. I accept her evidence that having an office located near colleagues whom she perceived to have wronged her was particularly stressful. On balance, I find it more probable than not that the stress Dr. Kane experienced at work because of her office location adversely impacted her in connection with her CSS.

[128] However, I agree with the College that any adverse impacts related to Dr. Kane’s office disappeared when the College moved to online teaching during the pandemic. During this period, Dr. Kane was working remotely. As I have said, this suited her well and fully met her disability-related needs, including the need to work apart from her colleagues.

[129] As I understand it, Dr. Kane says that she needed an office on campus to prepare for her classes. I do not accept this. The Office Email was prompted when she learned that a specific office had become available. She wanted that office assigned to her before it could be assigned to someone else. Further, she had previously told Acting Dean Tyakoff that she was not seeing anyone in person because she lived with a senior person and would not risk their health. This undermines her suggestion that she would have been working in person at the College while classes were online. In cross-examination, she explained that she needed an office to go in and get her things. In her closing argument, she says that “she still needed to attend campus from time-to-time” and “[i]t was preferable to her to work in her office on campus”.

[130] Respectfully, I am not persuaded that Dr. Kane needed or intended to be working on campus while classes were being taught entirely remotely. In my view, Dr. Kane made the Office Email request in hopes of being assigned the exact office that she wanted, for when she eventually did return to in-person work. However, while she was working at home, her office assignment did not adversely impact her in connection with her disabilities. As such, it did not give rise to any obligations on the College to accommodate her during this period. I dismiss the allegations of discrimination relating to Dr. Kane’s office assignment after March 2020.

[131] Before moving on, I will briefly address two arguments advanced by the College, neither of which I find persuasive.

[132] First, the College argues this allegation must fail because it is based on unfounded allegations of bullying and harassment. The College argues that as such, there is no objective basis for Dr. Kane’s claim to experiencing stress. I disagree. The College’s argument conflates the Discriminatory Harassment Allegations with this aspect of the Accommodation Allegations. The latter are not contingent on the former. Whether or not the evidence supports Dr. Kane’s assertions about her colleagues’ behaviour on a balance of probabilities, whether she found her office location exacerbated her CSS because of its proximity to her colleagues is a separate issue.

[133] Second, the College appears to argue that Dr. Kane cannot establish a connection between her office location and CSS because, it says, the request was for personal and not medical reasons. As should be apparent, I have not accepted that argument on the evidence before me. Dr. Kane shared a crowded office with a colleague. Her personal preferences, distinct from her disability related needs, may well have informed her requesting an office change. However, the fact that a personal preference may have informed the request does not negate the disability related needs of the request.

C. Respondent’s justification defence

[134] As noted above, to justify the adverse impacts on Dr. Kane, the College must establish a bona fide occupational requirement [BFOR]: s. 13(4) of the Code. If the College establishes a BFOR, then there is no violation of the Code: British Columbia (Public Service Employee Relations Commission) v. BCGSEU, 1999 CanLII 652 (SCC) [Meiorin] at para. 54.

[135] Under the BFOR test, the College must first prove that it was applying a workplace standard adopted in good faith, for a purpose rationally connected to the performance of Dr. Kane’s job. There is no dispute in this case about the workplace standards at issue in this case, namely that teachers work in and with the facilities provided to them by the College, specifically classrooms and offices as provided. Rather, the case turns on the third element of the BFOR test, and specifically whether the College met its duty to accommodate Dr. Kane: Meiorin at para. 54.

[136] The purpose of an employer’s duty to accommodate is “to ensure that an employee who is able to work can do so” and that “persons who are otherwise fit to work are not unfairly excluded where working conditions can be adjusted without undue hardship”: 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. 14. This purpose informs the scope and content of the duty, expressed through the symmetric concepts of reasonableness and undue hardship: Québec (Comm. des norms, de l’équité, de la santé et de la sécurité du travail) v. Caron, 2018 SCC 3 [Caron] at para. 25.

[137] The concept of “reasonable accommodation” requires employers to take reasonable and practical steps to assess whether working conditions can be changed to allow the employee to do their work and, if not, whether there is other work that they could do: Hydro-Québec at para. 17. As the term “reasonable” implies, the duty is not unlimited.

[138] The concept of “undue hardship” sets the limit for the lengths that employers are 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 a person’s disability: Klewchuk v. City of Burnaby (No. 6), 2022 BCHRT 29 at para. 411. It is only when the hardship becomes “undue” that the duty ends.

[139] Accommodation is assessed globally, considering the entire history of the matter, and: Hydro-Québec at para. 21. Moreover, accommodation is assessed considering the information available to the employer at the time; see e.g. Gardiner v. Ministry of Attorney General, 2003 BCHRT 41 at para. 166, and more recently McNeil v. Telus Employer Solutions (TES) (No. 2), 2024 BCHRT 166 at paras. 49-50, upheld in 2026 BCCA 296. It is an exercise in “common sense and flexibility”, which 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”: Meiorin at para. 63; McGill University Health Centre (Montreal General Hospital) v. Syndicat des employés de l’Hôpital général de Montréal, 2007 SCC 4 [McGill] at para. 22.

[140] Accommodation is a collaborative process, requiring active participation and cooperation by the employee, employer and, in some cases, a union: Central Okanagan School District No. 23 v. Renaud, 1992 CanLII 81 (SCC) [Renaud], cited in Klewchuk at para. 414. The employer is in the best position to identify reasonable accommodations that meet their operational needs: Renaud at para. 44. To do this, they may require information from the employee about their disability-related needs. An employee is required to participate in the process, by facilitating reasonable requests for information and accepting reasonable proposals: Renaud at para. 44. The employer’s duties are fulfilled when it proposes a reasonable solution. If the employee refuses a reasonable proposal, or fails to facilitate reasonable accommodation, then their complaint may be dismissed: McGill at para. 22. The employee cannot expect a perfect solution: Renaud at p. 995; McGill at para. 22.

[141] At a high level, Dr. Kane argues the College did not fulfill its duty. She submits the accommodations she sought were nowhere near the point of undue hardship in terms of financial cost and feasibility, given the College’s size, work force and facilities. Dr. Kane submits the College failed to lead credible evidence that it could not accommodate her without experiencing undue hardship.

[142] The College disagrees. The College argues it satisfied its part of the duty to accommodate Dr. Kane by asking her for information to support her requests, and proposing reasonable solutions. It says that when Dr. Kane failed to provide the information it requested, or accept reasonable proposals, she caused the accommodation process to founder. In short, the College says that its conduct was reasonable based on the information and evidence available to it at the time about Dr. Kane’s disability related needs.

[143] I begin by addressing two of Dr. Kane’s broad arguments about the College’s conduct during the accommodation process.

[144] First, I do not agree with Dr. Kane that the College’s response to her accommodation requests was discriminatory because multiple people were involved at various points, including people who were also involved in parallel disciplinary processes. For example, Dr. Kane presents the communications between Ms. Ward and Dean Flemming, and later communications between Ms. Ward and Ms. Maurer, as inappropriate. She notes that, on the one hand, Ms. Ward testified that she was responsible for making accommodation decisions, while on the other hand, she spoke with Dean Flemming and others in senior positions about Dr. Kane’s requests. Given that the duty to accommodate rests with the College and not a particular person, I do not find Ms. Ward’s consultations with others to be an issue. I also note that like Ms. Ward and others, Dr. Kane reached out to people in the College who were not directly responsible for the accommodations process when she did not agree with how Ms. Ward was responding to her requests. In other words, it was not the College alone that was responsible for the fact that many individuals wearing many different hats became involved in addressing Dr. Kane’s accommodation requests. Nor is it a principle in human rights law that managers cannot be involved in both accommodation and discipline. In fact, that is the reality in most workplaces. Managers must continue to manage their workplace and address problematic behaviour even where there are accommodation issues outstanding. In my view, these issues do not give rise to concerns about the reasonableness of the College’s response to Dr. Kane’s requests for accommodation.

[145] Second, I do not accept Dr. Kane’s argument that the College approached her requests for accommodation with hostility, which caused the College to request more medical information than it reasonably needed or view her requests as personal preferences rather than disability-related needs. There is no doubt that various people involved in responding to Dr. Kane’s requests were frustrated by the tone of her communications – which was often unproductive and unprofessional – and her unwillingness to agree to options that others had readily accepted. Dr. Kane points to Mr. Odoom’s observation, in a January 11, 2020 email, that “all goodwill has been exhausted, to a point of downright hostility”. However, read in context, that email was Mr. Odoom’s appeal to Dr. Kane to participate productively in the process, including by cooperating with requests for medical information, considering reasonable proposals, and refraining from threats of litigation and emails “denigrating others as incompetent or not up to their jobs”. In my view, this email reflects my own observation that participants in this process were frustrated by Dr. Kane’s behaviour, which was often aggressive and counterproductive. Notwithstanding those frustrations, I have found that the College engaged in the accommodation process in good faith, with a genuine goal of trying to understand and respond to Dr. Kane’s requests.

[146] In the following sections, I consider the College’s efforts to accommodate Dr. Kane’s voice needs, classroom needs, and office needs in turn. To determine whether the College met its duty to accommodate Dr. Kane’s disability-related needs, I consider its efforts holistically. Perfection is not the standard: Klewchuk at para. 425.

1. Vocal amplification system

[147] There is no dispute that the College’s duty to accommodate Dr. Kane’s vocal disorder was triggered when she made her initial request for a vocal amplification system in November 2018. The College provided Dr. Kane with a VoiceBuddy system in February 2019, which was not effective in classrooms. After that, the College was prepared to purchase the Front Row System recommended by Dr. Kane’s specialists, but the parties reached an impasse over the College’s proposal that Dr. Kane transport the Front Row System to her classes on a cart.

[148] Dr. Kane argues that this proposal was not reasonable given her physical limitations. She argues that it would not have caused the College undue hardship to mount the Front Row System or keep it securely stored in her classroom. She argues that the College’s requests for further medical information and insistence on a meeting were unreasonable, given the information they had at the time.

[149] The College argues that it was at all times prepared to reasonably accommodate Dr. Kane but she thwarted their efforts by refusing to meet and give them the information they required to understand her objection to transporting the Front Row System on a cart. I agree.

[150] Ms. Ward responded promptly to Dr. Ward’s request for a vocal amplification system, and clearly identified the information she needed to approve it. Though Dr. Kane refused to provide that information, insisting she had already provided enough, Ms. Ward approved and purchased the VoiceBuddy, in consultation with Dr. Kane. The VoiceBuddy was available for Dr. Kane on February 5, 2019, one month into Dr. Kane’s teaching semester.

[151] In the meantime, while Ms. Ward was waiting for further medical information, the College offered Dr. Kane options to rent equipment from the library or purchase the equipment directly and later seek reimbursement. While Dr. Kane elected not to avail herself of these options, I find they would have been reasonable solutions to the issue she had been raising. In that regard, the evidence does not support Dr. Kane’s bald assertion that the library equipment posed an unacceptable health risk and was not supported by her medical providers.

[152] After Dr. Kane reported that the VoiceBuddy was not working, the College acted promptly to take steps to purchase the Front Row System instead. There is no dispute that this system would have met Dr. Kane’s needs; the dispute is whether it was reasonable to expect Dr. Kane to transport the system on a cart or provide medical information about why she could not do so.

[153] Dr. Kane’s argument focuses on whether it would have been undue hardship for the College to keep the Front Row System in a classroom for her. However, I agree with the College that this argument overlooks whether its proposal was a reasonable one, based on the information it had. If the College proposed a reasonable accommodation, then its duties were discharged. In my view, the College’s proposal was reasonable given the information it had.

[154] There is no dispute that the Front Row System is portable and lightweight, and designed for use in multiple spaces. There is also no dispute that it was common practice at the College to use a cart to transport such devices, particularly for expensive equipment. Ms. Ward’s undisputed evidence was that four other employees had similar systems, and were able to store and transport them without issue.

[155] Dr. Kane initially told the College that she did not want to transport the Front Row System on a cart because it would be “very burdensome” to do so “along with the other things I carry to and fro to classes”. She also said she did not want to use a cart unless “absolutely necessary”. In light of the information it had, it was reasonable for the College to interpret these objections as preferences rather than disability-related barriers. The College is not required to accommodate preferences.

[156] I agree with the College that the issue was not, as Dr. Kane argues, whether it would be an undue hardship for the College to mount the Front Row System on the wall of a classroom. Without information that indicated Dr. Kane had a limitation that restricted her ability to push a cart around because of a medical condition, the College had no duty to provide Dr. Kane with an alternative accommodation to the one offered. As far as Ms. Ward understood at the time, Dr. Kane thought the cart would be “burdensome.” This statement did not trigger any obligation on the College to look for a less burdensome option. At this point, the College was not obligated to explore alternatives to the option proposed by Ms. Ward.

[157] At the same time, Dr. Kane was refusing to meet with Ms. Ward to discuss her accommodations. I agree with the College that, in doing so, Dr. Kane was not meeting her obligations to cooperate in the accommodation process. Ms. Ward was proposing a discussion to better understand Dr. Kane’s evolving requests for accommodation, identify information the College would require, and explore accommodation options. This is consistent with the dynamic, collaborative, nature of accommodation.

[158] The first indication to the College that Dr. Kane may have disability-related barriers to transporting the Front Row System was Dr. Arseneau’s August 7, 2019 letter, in which he said that Dr. Kane could not “carry a large cart with the voice amplifier to and from classes”. Dr. Kane argues that, at this point, the College should have implemented Dr. Arseneau’s recommendation that the system be wall-mounted in a suitable classroom for her. However, I agree with the College that it was reasonable to seek further medical information about the request.

[159] In particular, it was reasonable for Ms. Ward to have concerns that Dr. Arseneau did not understand the College’s proposal to have Dr. Kane transport the Front Row System on a cart with wheels; she was not being asked to carry anything. It was also reasonable for the College to want better information about Dr. Kane’s restrictions and limitations, particularly as it correctly perceived that those restrictions and limitations were now extending beyond a vocal disorder. Finally, I agree with the College that, as the employer, it was best placed to determine a reasonable accommodation. The role of Dr. Kane’s doctors was not to dictate accommodations but to provide the information that the College needed in order to understand Dr. Kane’s disability-related needs and identify reasonable accommodations.

[160] The College then sent Dr. Arseneau a detailed questionnaire setting out the information it required. I agree with the College that the information that Dr. Arseneau then provided was only partially responsive to its request.

[161] In her submissions, Dr. Kane argues that Ms. Ward’s rejection of the information provided by Dr. Arseneau was based on her personal dislike of him. She points to Ms. Ward’s evidence that she found Dr. Arseneau’s cover letter “ridiculous” and “strange”, and that Ms. Ward did not disagree with counsel’s suggestion in cross-examination that she disliked Dr. Arseneau. I accept that Ms. Ward was frustrated and unimpressed with the information provided by Dr. Arseneau. However, that does not make her assessment that she still needed more information unreasonable.

[162] I agree with Ms. Ward’s assessment that the lengthy report Dr. Arseneau had provided about “Recognizing and Improving Care for those with ME/CFS, FM and ES/MCS” was not helpful in circumstances where the College did not have Dr. Kane’s diagnoses and did not know how any of the information in the report may apply specifically to her. At the same time, Dr. Arseneau left the answers to important questions blank, and took issue with the College’s characterization of his role in relation to the accommodation process. This was not helpful in advancing the accommodation process. The information about Dr. Kane’s physical limitations was unclear, as was the information about conditions that could exacerbate any disabilities – including what constituted “excessive heat” and the extent to which Dr. Kane was completely restricted from working in environments with excessive heating, artificial lighting, without fresh air, or in which she was exposed to stress.

[163] I am satisfied that, in these circumstances, it was reasonable for Ms. Ward to refer Dr. Kane to OccuMed for medical case management. This option would have allowed an occupational health nurse to review Dr. Kane’s medical information in a confidential process and facilitate accommodation efforts. I find that Dr. Kane’s refusal to participate in this process was unreasonable, and a failure to cooperate in the accommodation process. In that regard, the evidence does not support Dr. Kane’s assertion that the occupational health nurse was unqualified to work on her case because she specialised in “substance abuse disorders” or that OccuMed may breach her privacy. Nor is it accurate to suggest that the College was sending her for medical evaluation by health care professionals without proper qualifications.

[164] Dr. Kane argues that the referral to OccuMed was unreasonable because it would have been less expensive to simply implement the accommodation she was seeking: a wall mounted Front Row System. Again, I find this argument misunderstands accommodation. The College is not obliged to do what Dr. Kane has asked for simply because it is affordable or could be done without undue hardship. Rather, it is obliged to propose reasonable accommodations that address Dr. Kane’s disability-related needs. Employers are entitled to the information that is required to formulate a reasonable accommodation: Flynn v. DF Architecture Inc. (No. 2), 2025 BCHRT 81 at para. 44. In response to Dr. Kane’s requests, the College was entitled to ask for “information about the employees’ medical condition, prognosis for recovery, ability to perform job duties, and capabilities for alternate work”: Gordy v. Painter’s Lodge (No. 2), 2004 BCHRT 225 at para. 84. Dr. Kane was required to cooperate in those requests for information and facilitate the implementation of reasonable proposals. I find she did not.

[165] Throughout this time, the College continued to offer Dr. Kane use of the Front Row System for her voice.

[166] Dr. Kane refused to meet with the College until March 3, 2020. At that meeting, she indicated she was “giving up” on her request for accommodation for her voice. Shortly after, the COVID-19 pandemic intervened and she began teaching online. At this point, she had no further voice-related barriers to accommodate.

[167] Viewing this matter holistically, I am satisfied that the College acted reasonably to implement accommodations for Dr. Kane’s voice disorder by purchasing the VoiceBuddy and offering to purchase the Front Row System. I find that Dr. Kane caused the accommodation process to fail by refusing or failing to meet with the College and provide the medical information it required to understand whether her request to have the Front Row System kept in a classroom for her was a personal preference or a disability-related need. Only the latter gives rise to obligations by the College, regardless of how expensive it would have been or whether there would otherwise be undue hardship to comply with Dr. Kane’s requests.

[168] I dismiss the allegations of discrimination arising from Dr. Kane’s requests for a vocal amplification system.

2. Classroom accommodations

[169] I reach the same conclusion about Dr. Kane’s requests for classroom accommodations.

[170] In making classroom assignments, the College has to balance and consider the needs of the whole Faculty. The Faculty had 12 departments, including the department of philosophy. Ms. David, who was responsible for classroom scheduling, estimated there were around 100 faculty members requiring space. The Faculty was assigned a “pavilion” of classrooms for her to use for scheduling. After she finishes scheduling the Faculty, free room time is released to “Room Bookings” and can be accessed by other faculties. Prior to the COVID-19 pandemic, Ms. David recalled the Faculty’s pavilion consisted of around 16 classrooms and two labs. Some but not all classrooms had windows. Lighting conditions varied. The New Westminster campus, where Dr. Kane worked, was the most difficult to schedule because it was highest in demand. These challenges were exacerbated by renovations between 2018 and 2020.

[171] The College’s duties respecting Dr. Kane’s classroom requests were triggered by her email on April 27, 2019, requesting a classroom with natural light that was “preferably not on the excessively HOT (in the summer) inner side of the building”. At that point, and throughout the months that followed, the College was entitled to sufficient information from Dr. Kane to understand the basis for her accommodation request, and to make its own determination of an appropriate accommodation that balanced all of the competing demands for space.

[172] Ms. Ward promptly responded to Dr. Kane’s email, reiterating her request for a meeting and indicating that she would require further medical information to support Dr. Kane’s new requests. Again, Dr. Kane refused to meet until she had gathered further medical information, notwithstanding Ms. Ward had explained that one of the purposes of the meeting was to discuss what information the College may need. In my respectful view, the College’s request to meet with Dr. Kane was met with an unreasonable refusal in the circumstances.

[173] In the summer of 2019, Dr. Kane was assigned to teach all her classes in N4215, which was a room she had previously requested. This was an exception to the College’s usual practice of assigning a combination of good and less-than-ideal rooms to each faculty member. As I understand it, Dr. Kane requested this room because she thought it would meet her disability related needs. When Dr. Kane determined N4215 was not going to meet her needs, she contacted Dean Flemming to ask if she could move to a classroom across the hall that appeared to be empty. Deam Flemming directed her to Ms. David.

[174] By this point the semester had already started. After checking with Room Bookings, Ms. David informed Dr. Kane that other options identified by Dr. Kane were not available. She informed Dr. Kane that they could look for alternatives but that her classes may end up scattered across campus. Ms. David also informed Dr. Kane that they were “currently scheduling for Winter 2020” and that if she had any special room requests, she should let her Chair know. In my view, this response was reasonable.

[175] Dr. Kane did not teach in the fall of 2019. She returned to the classroom in January 2020.

[176] During this period, the College was actively seeking medical information about Dr. Kane’s disability-related restrictions. For the reasons I have set out above, I am satisfied that it was reasonable to do so. I find that Dr. Kane’s refusal to meet in person and cooperate with the referral to OccuMed delayed and undermined the process.

[177] When the parties did finally meet in March 2020, progress was made. Dean Flemming suggested that Dr. Kane identify classrooms that would work for her. This was a practical response that allowed the parties to move forward. Dr. Kane later identified a single classroom, room N4370 at the New Westminster campus, that would be “adequate”. She said that the Anvil campus was beautiful and had some advantages, but she was concerned about long lineups for the elevator, and that there were no private faculty offices there. At this point, the parties were working to identify solutions. However, the progress was interrupted by the pandemic. At that point, Dr. Kane started teaching at home and no longer had classroom related needs.

[178] Viewing the matter holistically, I am satisfied that the College made reasonable efforts to accommodate Dr. Kane’s classroom-related needs. For significant periods following her request, Dr. Kane was assigned to teach in a classroom that she had specifically requested or not teaching at all. The College’s efforts to accommodate her classroom requests were delayed and undermined by the lack of responsive medical information, Dr. Kane’s refusal to meet, and her refusal to participate in the referral to OccuMed. I dismiss the allegations of discrimination relating to Dr. Kane’s classroom assignment requests.

3. Office accommodations

[179] Dr. Kane’s first request for an office relocation was in Dr. Arseneau’s August 7, 2019 letter. Dr. Arseneau identified that Dr. Kane had invisible disabilities that were sensitive to stress and that she found working near her colleagues in the philosophy department to be very stressful. Again, I find Ms. Ward’s assessment that further medical information was required to be reasonable. In response to the College’s medical questionnaire, Dr. Arseneau reiterated that a stressful work environment exacerbated Dr. Kane’s symptoms. From Ms. Ward’s perspective, it was unclear whether Dr. Arseneau was saying that Dr. Kane was restricted from being in any position she personally said was stressful.

[180] Again, I find that Ms. Ward’s decision to refer Dr. Kane to OccuMed was reasonable. Dr. Kane’s refusal to participate in that process undermined the accommodation process. At the same time, it provided a basis for the College’s view that her requests for an office relocation were grounded in interpersonal conflict rather than disability-related needs.

[181] Notwithstanding the limited medical information it had, in January 2020, the College did offer Dr. Kane other office options. In doing so, I find it was undertaking a practical approach to try and resolve Dr. Kane’s concerns, notwithstanding it still did not have medical information that allowed it to fully understand Dr. Kane’s disability-related restrictions. Those options would have reasonably removed her from daily proximity to Dr. Sobstyl and others, and addressed her needs. Dr. Kane rejected both options, and in doing so brought the accommodation process to an end.

[182] First, the College offered to move Dr. Kane to its David Lam campus. Dr. Kane refused this offer, on the basis that Dr. Sobstyl (who she accused of bullying) was frequently at the David Lam campus. At the hearing, Dr. Kane testified that she could not work at David Lam because the longer commute would be a burden. The David Lam campus was located about 12 km further from Dr. Kane than the New Westminster campus. Dr. Kane estimated that the commute would add an hour and a half to her daily commute, factoring in bad weather and putting gas in her car. The College took the position that the additional commute would have been up to 15 extra minutes a day. Regardless of how long it would take Dr. Kane to drive to the David Lam campus, in my view, this was a reasonable proposal which Dr. Kane unreasonably rejected. Accepting that Dr. Kane was stressed by proximity to Dr. Sobstyl, and that Dr. Sobstyl attended the David Lam campus, the evidence did not support that Dr. Kane would be frequently exposed to Dr. Sobstyl at the David Lam campus. In contrast, the office she was using at the time was in close proximity to Dr. Sobstyl’s office.

[183] Second, the College offered Dr. Kane a single office on a different floor at the New Westminster campus. Dr. Kane refused this office based on a concern that having a single office might “cause resentment”. In her testimony, she added a concern about the lighting. However, there is no evidence that she raised this with the College at the time. Again, I find this was a reasonable proposal which Dr. Kane unreasonably rejected.

[184] In their meeting on March 3, 2020, the College reiterated that it was willing to consider the request to relocate offices. Again, this was a practical approach and not an accommodation, given the College’s reasonable view that it did not have enough medical information about Dr. Kane’s disability-related office needs. However, any momentum was interrupted by the pandemic. Above I have found that Dr. Kane was not adversely impacted by her office location while she worked at home during the pandemic, and so the College’s accommodation duties did not arise.

[185] Viewing the matter holistically, I am satisfied that the College made reasonable requests for medical information to understand Dr. Kane’s disability-related office needs, while at the same time offering Dr. Kane reasonable solutions. By refusing those reasonable solutions, and not participating constructively in the process of gathering medical information, Dr. Kane caused the process to fail. I dismiss her allegations of discrimination arising from her office location.

D. Conclusion on Accommodation Allegations

[186] In summary, I find that Dr. Kane has not established that the College violated s. 13 of the Code in respect of her requests for accommodation arising from her vocal disorder and CSS. I dismiss this part of her complaint.

V DISCRIMINATORY HARASSMENT ALLEGATIONS

[187] In this part of her complaint, Dr. Kane alleges Dr. Sobstyl and other unnamed colleagues bullied and harassed her based on a perception that she had an alcohol use disorder. She further alleges that when she brought her allegations about Dr. Sobstyl and others to the College’s attention, it discriminated against her by failing to adequately address her allegations.

[188] As with other allegations of discrimination, to succeed with this part of her complaint, Dr. Kane must prove the three elements of the test for discrimination: Moore at para. 33. Respecting her allegations of discriminatory harassment, Dr. Kane must prove:

a. Her colleagues perceived her to have an alcohol use disorder. There is no dispute that addiction, including alcohol use disorder, is captured by the protection against discrimination based on disability: Stewart v. Elk Valley, 2017 SCC 30 at, para. 3; Handfield v. North Thomson School District (1995), 1995 CanLII 18183 (BC HRT), at para. 131. Further, it is well-established that the protection of the Code extends to those who are mistakenly perceived to have a disability: Gehman v. Seyffert, 2020 BCHRT 180 at para. 88.

b. Her colleagues engaged in harassing behavior that adversely impacted her in her employment; and

c. The harassing behaviour was connected to her perceived alcohol use disorder. The Code does not protect people from general bullying and harassment. The Code only protects individuals from bullying and harassment that is connected to a protected characteristic: Complainant v. Douglas College and another, 2019 BCHRT 57 at para. 40.

[189] To prove her allegation that the College failed to respond appropriately to her allegation of discriminatory harassment, the test is the same: Dr. Kane must prove that she was adversely impacted in her employment in connection with a perceived alcohol use disorder: Hale v. University of British Columbia, 2023 BCHRT 121 [Hale]at para. 13. This part of her complaint turns on whether the College took reasonable and appropriate steps to respond to Dr. Kane’s allegations of discriminatory harassment.

[190] For the following reasons, I find Dr. Kane has not proven this part of her complaint.

A. Events giving rise to Discriminatory Harassment Allegations

1. Harassment allegations

[191] Broadly speaking, Dr. Kane alleges that after she participated in a hiring committee in 2012, Dr. Sobstyl and others started to bully and harass her at work. She alleges Dr. Sobstyl made demeaning comments about her “purported alcoholism,” and perpetuated rumours that she was an alcoholic. She further alleges Dr. Sobstyl and others engaged in harassing behaviour in connection with her purported alcoholism. Dr. Kane submits that she gave evidence that she was subjected to harassment on the basis of purported alcoholism over many years. She says the harassment occurred in front of colleagues, in a context where mutual trust and respectful relationships are essential.

[192] To support her allegations, Dr. Kane relies on her testimony and a copy of her complaint to the College in the form of a detailed letter to Ms. Maurer dated April 8, 2019. Dr. Kane’s mother testified about what Dr. Kane told her at home after work. Aside from corroborating Dr. Kane’s version of events, I do not consider it particularly instructive. Ms. Kane is Dr. Kane’s mother and was hearing second hand information about her daughter’s difficulties at work. I have given Ms. Kane’s evidence little weight.

[193] Dr. Kane says that Dr. Sobstyl started referring to her as an “alcoholic” or “cynical alcoholic” in 2012. She says that, at a department meeting in 2012, someone asked whether anyone would volunteer to teach “three or maybe even four sections of Philosophy 1101 all in one semester.” Dr. Kane recalls how everyone was quiet until she said: “well, I did that once and look at me now!” She explains that this was a “bit of my customary, mildly self-deprecating Jewish humor to break the awkward silence, and people were laughing.” She says Dr. Sobstyl replied, “what, you mean a cynical alcoholic?” Dr. Kane describes that this was said in a loud, aggressive and hostile tone. Dr. Sobstyl denies calling Dr. Kane an alcoholic or cynical alcoholic.

[194] At the hearing, Dr. Kane testified that in addition to making the “cynical alcoholic” comment, Dr. Sobstyl started to corner her to talk about drinking. Dr. Kane did not provide dates or further details on what these conversations involved. In her submissions, Dr. Kane argues Dr. Sobstyl would bring up the subject of drinking in the halls of the College to “perpetuate rumors” that she was an alcoholic.

[195] Dr. Sobstyl does not deny that she spoke with Dr. Kane about alcohol when they worked together. Dr. Sobstyl’s evidence is that she openly shared with Dr. Kane and others that there were people close to her with alcohol use disorders. She denies that her conversations about alcohol were meant to perpetuate rumours about Dr. Kane and alcoholism. She says that she would not joke about this, or encourage someone to drink if she thought that they had an issue with alcohol.

[196] I prefer Dr. Sobstyl’s evidence on this point. To make this finding, I have considered my concerns about the reliability of Dr. Kane’s testimony, including her propensity to misinterpret or exaggerate events. I have found Dr. Sobstyl’s description of their conversations more plausible, given the context of their relationship, Dr. Sobstyl’s personal circumstances, and the evidence of the other witnesses that they never heard Dr. Sobstyl say anything about Dr. Kane having a problem with alcohol. I accept that when Dr. Sobstyl spoke about alcohol to Dr. Kane, she did so because of her own personal history and not, as Dr. Kane alleges, because she perceived Dr. Kane to have an alcohol use disorder.

[197] Dr. Kane’s first allegation of discriminatory bullying and harassment within the scope of the complaint occurred at a department meeting in or around February 2018.

[198] Dr. Kane’s evidence is that before she attended the meeting, she visited a spa with her mother. Dr. Kane recalls that she had an adverse reaction to some skincare products, which left her with a red rash around her eyes. This is not in dispute, and other witnesses agreed that Dr. Kane showed up to the meeting that day with a bad rash. John Bruin was at the meeting and testified that he offered Dr. Kane some Benadryl. Dr. Kane also testified, and I accept, that others told her to go to the hospital.

[199] In contrast, Dr. Kane’s evidence is that after seeing her, Dr. Sobstyl responded, “she just needs a drink, that’ll fix her, that’s her thing.”

[200] Dr. Sobstyl denies making this statement. Dr. Sobstyl testified that, before the department meeting, she asked Dr. Kane if she was joining their colleagues at the pub afterwards and, if so, she would get her a drink. Dr. Sobstyl recollected that Dr. Kane’s eyes were irritated and red and when Dr. Kane left the meeting early, she told her that she would get her a drink another time. Dr. Sobstyl also testified that, given her awareness of alcohol use disorders, she does not offer alcohol to someone who has an alcohol problem because it is “enabling and not done.” I found Dr. Sobstyl’s account of her comments more plausible than Dr. Kane’s, and I prefer her account.

[201] On February 4, 2018, a few days after the department meeting, Dr. Kane sent Dr. Sobstyl the following email:

Hi Edrie,

I was wondering if you might try to restrain yourself in future from making dim-witted, snide jibes about my drinking habits at department meetings etc.? I don’t make rude, belittling, mean-spirited, unprofessional comments about your drinking habits […]

I wouldn’t want to have to speak to the Union about personal harassment coming from you, but your bullying comments are truly starting to create a hostile work environment for me. […] Maybe you are not even aware of it, but your open display of hatred for me is quite shocking. Why the venom?! Whatever your reasons, I shouldn’t have to put up with verbal abuse from you or anyone at the place where I have taught, and indeed excelled at teaching, for two decades now.

Knock it off!

MK

[202] Dr. Sobstyl testified that she was upset and angry when she received Dr. Kane’s email. She felt like the accusations were rude and aggressive and did not match what she thought was a collegial gesture of inviting Dr. Kane to come out for a drink because they had not seen Dr. Kane at any department meetings for a while. Dr. Sobstyl’s evidence was that she did not know what Dr. Kane was talking about in the email. She recalled that she was “baffled.” Nonetheless, Dr. Sobstyl decided to respond with an apology, because, she explained, “if someone is angry at you, you apologize.” She says that she “was trying to bring the conversation to a close.” I accept this explanation, and do not regard Dr. Sobstyl’s subsequent apologies to Dr. Kane as an admission.

[203] Dr. Sobstyl replied to Dr. Kane’s email on February 6. That email in full is as follows:

Marilyn, I am so, so sorry!

First, I’m sorry to have taken so long to respond to your email – I gave myself a few days away from email to try to get some work done, and had I known this message was waiting for me, I would have leapt at it with all haste.

I in no way intended to make a jibe of any kind about your drinking habits at the department meeting; at most I was trying to entice you in a friendly way to come and join with us for a drink after the meeting, and nothing more. Truly, Marilyn, I was simply trying to make the gesture of offering to buy you a collegial drink, with no judgment made or implied as to your own habits, which I regard as none of my business. I am filled with remorse that I have offended you in this fashion, and regret it as deeply as I can regret anything.

I am horrified that my esteem and respect for you has not come through in my speech and actions, and I offer you my most sincere and heartfelt apologies for this. I am certainly not aware that I am guilty of open displays of hatred towards you because I promise you, I feel no such hatred. I would never wish to convey venom towards you that I do not feel, since I regard you as one of the established and valued members of the department. I am disgusted with myself for being so lacking in self-awareness that I have been offending you in this manner, and apparently have been doing it for some time now. I honestly believed that you and I had a friendly relationship and I am saddened to learn that this is not the case.

I am so dismayed to have caused you such anguish, I am indeed sorry and hope that, in time, you will feel that you are able to accept my apology. Your accusations are painful to me, but I take them seriously and will do my best to engage in some self-scrutiny and discipline as I never, ever want to be the source of such unhappiness for you again. I thank you for giving me this opportunity to see myself as you do, and to learn from it.

humbly and with deep regret,

edrie

[204] Dr. Kane regarded Dr. Sobstyl’s response as insincere and wrote a lengthy reply saying as much. That email starts “thanks for apologizing instead of denying your actions. But this is beyond mere insensitivity. This is verbal bullying, and it’s gone on too long.” Dr. Kane’s email continues, informing Dr. Sobstyl that she “can’t claim to fathom the exact cause(s) of [Dr. Sobsyl’s] overt aggression” towards her. Dr. Kane tells Dr. Sobstyl that she “surmise[s] that it may have become so normalized amongst some of you to vilify, slander and malign me behind my back that, to you, it may now seem natural and acceptable to openly verbally abuse me at department meetings too.” The email continues in a similar tone for a few more paragraphs.

[205] I pause here to observe that this email is an example of Dr. Kane’s tendency to interpret emails in a reactive and negative manner. It is also an example of where Dr. Kane’s interpretation of events does not line up with the evidence. It has supported my concerns about the reliability of her evidence, and my decision to prefer the evidence of others.

[206] Dr. Sobstyl replied that same day:

Marilyn,

thank-you for taking the time to write such a long and detailed response to my apology. You’ve given me a lot to think about, and I want to take the time to reflect on what you’ve said, because of the very grave and important nature of your message. You have asked that I immediately stop verbally abusing you, and I commit to making every effort to speak to you and around you with greater sensitivity and compassion. I will try to find a way to deal with the other problems that you have raised in an acceptable manner. I apologize again.

edrie

[207] Dr. Kane and Dr. Sobstyl did not interact much, if at all, after the above email exchange. Dr. Kane’s evidence is that although Dr. Sobstyl stopped making comments to her, Dr. Sobstyl’s “friends” continued to make comments to her. She testified:

Edrie’s friends started making little snips and comments and doing practical jokes and things too. So it definitely became a plural case of bullying and harassment or mobbing or whatever you want to call it. And it was mostly to the effect that I’m an alcoholic but Edrie also made comments about my weight … she made comments about … sedentary lifestyle which is kinda hard to take when you have chronic fatigue … and people just all sorts of ridiculous criticisms.

[208] Asked what she meant by “mobbing,” Dr. Kane described that this is “when a person in a position of power decides, we don’t like this person let’s make their life difficult, maybe they’ll quit or kill themselves or get fired by reacting”.

[209] I am not persuaded on balance that any of Dr. Sobstyl’s friends or Dr. Kane’s colleagues were bullying, harassing, or mobbing Dr. Kane. Dr. Kane did not provide sufficient detail on any alleged interactions for me to make such findings of fact. She did not identify who was involved, or what exactly they did. There was no evidence to support that she was being targeted for practical jokes. As evidence of practical jokes, Dr. Kane referred to an incident where she found a wine bottle in her cubby that was addressed to someone else, and another incident where she found something broken in her office after people had been in her office cleaning or working with the HVAC system. Neither of these examples, in my respectful view, support that Dr. Kane was being targeted or harassed by her colleagues. There is no evidence, beyond Dr. Kane’s bald speculation, that people were acting in concert to harass her. Furthermore, Dr. Kane’s evidence does not line up with the evidence of other witnesses who testified at the hearing.

[210] In or around early September 2018, Dean Flemming learned about the email exchange between Dr. Kane and Dr. Sobstyl. Dr. Sobstyl’s evidence is that she met with Dean Flemming to discuss her new role as Department Chair and that during their meeting, she brought up the email exchange because she and Dean Flemming were discussing the demands of being a Department Chair. After that meeting, Dr. Sobstyl wrote to Dean Flemming, attaching a copy of the email exchange. In her email, Dr. Sobstyl informed Dean Flemming that she did not want him to do anything about the emails. She testified that Dr. Kane had said it was behind them.

[211] Nothing of note happened until January 2019, when Dr. Kane says she had a “run in” with Dr. Sobstyl at a photocopier. Dr. Kane testified that she was in the photocopy room and Dr. Sobstyl “came in and looked angry at me and slammed the door”. Dr. Kane recalled thinking, “why am I being disrespected, I didn’t do anything wrong here.”

[212] Shortly after the photocopier incident, Dr. Sobstyl sent an email to the department regarding exam schedules. In response, Dr. Kane informed Dr. Sobstyl that she did not have final exams for her four classes that semester. Dr. Sobstyl then wrote “I need your course numbers and section numbers.” Dr. Kane replied with the numbers and included the following at the bottom of her email: “PS I still can’t understand the venom and hatred towards me! Such a nasty woman, for real!”.

[213] Around one week later, on January 14, Dr. Sobstyl sent a copy of Dr. Kane’s email to Dean Flemming, stating “I did not respond to this message and have no plans to do so. Thanks so much for your support, John.” This and other emails from Dr. Kane to individuals working at the College would prompt an investigation into Dr. Kane’s conduct. I address the College’s investigation into Dr. Kane’s emails in the section of this decision addressing Dr. Kane’s Retaliation Allegations below.

2. The College’s response

[214] On January 21, 2019, Dr. Kane attended a meeting with Ms. Maurer and Dean Flemming. The purpose of this meeting was to discuss the College’s concerns about the tone and conduct of some of Dr. Kane’s emails, including her emails to Dr. Sobstyl. During the meeting, Dr. Kane said that Dr. Sobstyl had been bullying her. In response, Ms. Maurer asked Dr. Kane to put her allegations regarding Dr. Sobstyl in writing.

[215] On April 8, 2019, Dr. Kane drafted a letter outlining allegations of bullying and harassment, which she emailed to Ms. Maurer and Mr. Millis on April 9. The letter sets out several allegations of bullying and harassment.

[216] The College contracted Paula Boddie & Associates Ltd. to investigate Dr. Kane’s allegations. At the time of the investigation, Ms. Boddie had over 35 years of experience as an HR professional, had conducted more than 150 investigations over 25 of those years, and had been a member of the BC Labour Relations Board for nine years. The College had used Ms. Boddie to carry out investigations for the College in the past.

[217] Ms. Boddie concluded her investigation on June 20, 2019. A copy of her investigation report [Report] is in evidence. In the Report Ms. Boddie explains how she conducted her investigation. In brief, she held face-to-face interviews with Dr. Kane and Dr. Sobstyl, and their respective DCFA representatives. She also interviewed four witnesses, who are anonymized in the Report. Ms. Boddie also reviewed the documentary evidence disclosed to her by those involved.

[218] Ms. Boddie’s Report is clear, thorough and detailed. It sets out applicable laws and policies and includes an account of how she approached issues of credibility. Ms. Boddie also explains how she made her findings of fact and how she went about deciding who she would interview. She addresses each of Dr. Kane’s allegations, concluding:

a. Dr. Kane’s first allegation about Dr. Sobstyl was unparticularized. The date and details of the alleged incident were unclear.

b. Dr. Kane’s allegation that Dr. Sobstyl called her a “cynical alcoholic” was “too old to be fairly addressed”.

c. Dr. Kane had withheld important evidence about her complaint that Dr. Sobstyl allegedly said “she just needs a drink; that’ll fix her up; that’s her thing”. In fact, Dr. Kane had already resolved that allegation informally in February 2018, and that should have been the end of the matter.

d. Dr. Kane’s allegation that Dr. Sobstyl continued to make alcohol-related comments to her was “unsupported and fails as being unfounded”.

e. Dr. Kane’s allegation that Dr. Sobstyl was staring and glaring at her and slammed a door, and otherwise treating her badly, was “unfounded”.

Ms. Boddie concludes on a balance of probabilities that each of Dr. Kane’s five allegations were “unfounded and without merit.”

[219] On June 26, 2019, Ms. Maurer wrote to Dr. Kane to inform her that Ms. Boddie had completed her Report and had determined Dr. Kane’s allegations were unfounded. Ms. Maurer notified Dr. Kane that she agreed with the findings of fact and conclusion reached by Ms. Boddie and therefore dismissed the complaint. Ms. Maurer then set out information on the College’s appeal process and invited Dr. Kane to contact her if she had any questions.

[220] On July 7, 2019, Dr. Kane submitted a letter listing eight grounds of appeal to President Denton. Ms. Denton dismissed the appeal on all eight grounds.

B. Allegation of discriminatory harassment

[221] I am not satisfied that any of Dr. Kane’s colleagues, including Dr. Sobstyl, perceived her to have an alcohol use disorder or harassed her based on that perception.

[222] I have not accepted Dr. Kane’s evidence that Dr. Sobstyl perceived her to be an alcoholic, spread rumours about her drinking, or made jokes that she had an alcohol use disorder. I have not accepted Dr. Kane’s evidence or allegations that she was the target of bullying, harassment, or mobbing by her colleagues.

[223] My finding is grounded in the consistent evidence of 14 current or former employees, including eight faculty. Their evidence was consistent that they never considered Dr. Kane to have an alcohol use disorder, and never heard anyone suggest that she did. Several witnesses testified about a propensity to joke about drinking, but this joking was not related to any perceptions abut Dr. Kane.

[224] I find that any discussion of drinking took place in the ordinary context of collegial banter and was not directed at Dr. Kane. Witnesses testified about conversations in the department about drinking generally. Some witnesses cited famous references to philosophers drinking, including Plato’s Symposium and Monty Python’s Philosopher’s Song. Faculty would sometimes joke that philosophers do their best philosophizing drunk, or that they needed a drink to get through grading. Aside from Dr. Kane, none of the witnesses said they heard comments about alcohol being directed at someone specific. Dr. Sobstyl’s offer to buy Dr. Kane a drink in 2018 is not evidence that she perceived Dr. Kane to have an alcohol use disorder; it is the opposite. In my view, these types of comments are typical of collegial banter and not evidence that Dr. Kane was being harassed based on a perception that she had an alcohol use disorder.

[225] I am not persuaded that Dr. Kane was harassed in connection with a perception that she had an alcohol use disorder. I dismiss this part of her complaint.

C. Allegation of inadequate employer response

[226] An employer must take steps to deal with issues of possible discrimination in the workplace: Jamal v. TransLink Security Management and another (No. 2), 2020 BCHRT 146 at para. 106. A failure to respond reasonably and appropriately to allegations of discrimination may amount to discrimination, even if the underlying conduct is not discriminatory: Employee v. The University and another (No. 2), 2020 BCHRT 12 at para. 272.

[227] In Hale, the Tribunal explained how a response to alleged discrimination fits into the human rights analysis. That case was about an allegation of sex discrimination in a university, but the same principles apply to cases, like this one, with an allegation of discrimination based on perceived disability in employment:

To begin, an effective response to an allegation of [discrimination] can mitigate or eliminate adverse impacts on a survivor and restore a discrimination-free environment. A response that effectively addresses any discrimination fulfills the purposes of the Code and may obviate the need for a human rights proceeding… For complaints that do proceed, a reasonable response can mitigate the impact on the complainant, reducing the overall harm and damage of discrimination… Finally, a response which takes all reasonable and practical steps to address allegations of discrimination may support a defence of bona fide reasonable justification….

On the other hand, a failure to reasonably respond can exacerbate the harms of discrimination or even cause further harms. …

In addition to the significant impacts of institutional betrayal, an unreasonable or ineffective response may generate further adverse impacts on a survivor as a result of an environment that continues to be poisoned by discrimination…

Finally, there are circumstances where, in its response, a respondent may engage in further discriminatory conduct or violate the protections afforded by s. 43 of the Code… [paras. 16-19, citations omitted]

[228] Ultimately, the effectiveness of an employer’s response is measured against the goal of a discrimination-free work environment: Hale at para. 25.

[229] Generally, the Tribunal considers three aspects of an employer’s response to allegations of discrimination: the conditions that allow a person to complain about discrimination, the response to that complaint, and the resolution of the complaint and restoration of a discrimination-free environment. The Ontario Human Rights Tribunal summarized these considerations in Laskowska v. Marineland of Canada Inc., 2005 HRTO 30 at para. 59:

(1)   Awareness of issues of discrimination/harassment, policy, complaint mechanism and training: Was there an awareness of issues of discrimination and harassment in the workplace at the time of the incident? Was there a suitable anti-discrimination/harassment policy? Was there a proper complaint mechanism in place? Was adequate training given to management and employees;

(2)   Post-complaint: seriousness, promptness, taking care of its employee, investigation and action: Once an internal complaint was made, did the employer treat it seriously? Did it deal with the matter promptly and sensitively? Did it reasonably investigate and act; and

(3)   Resolution of the complaint (including providing the complainant with a healthy work environment) and communication: Did the employer provide a reasonable resolution in the circumstances? If the complainant chose to return to work, could the employer provide her/him with a healthy, discrimination-free work environment? Did it communicate its findings and actions to the complainant?

Laskowska v. Marineland of Canada Inc., 2005 HRTO 30 at para. 59.

[230] I am satisfied that the College’s response to Dr. Kane’s allegations of discriminatory harassment was reasonable and appropriate.

[231] First, there is no dispute that the College is aware of discrimination and harassment, and has policies in place to address it. The College has a Respectful Workplace Policy, which commits to a workplace free of discrimination, bullying, and harassment, and sets out a procedure for dealing with complaints.

[232] Second, I am satisfied that the College responded promptly to Dr. Kane’s workplace complaint and took it seriously. As the caselaw explains, under the Code, the College’s duty is to treat complaints brought forward by employees seriously, promptly and sensitively. The College did so when Ms. Maurer listened to Dr. Kane’s allegations in the meeting where Dr. Kane’s own behaviour was at issue. Instead of dismissing Dr. Kane’s assertions about Dr. Sobstyl, Ms. Maurer informed Dr. Kane that she should put the allegations in writing. Next, the College hired an experienced external investigator to investigate, at Dr. Kane’s request. All of this was done in a relatively a short span of time.

[233] Dr. Kane makes three broad arguments about why the external investigation was not an appropriate response to her allegations. I consider each in turn.

1. Involvement of College administrators

[234] Dr. Kane argues that the investigation process was tainted by the involvement of Ms. Maurer and Dean Flemming, who were simultaneously investigating Dr. Kane and imposing discipline for her conduct.

[235] There is no dispute that, by January 2019, Ms. Maurer had concerns about Dr. Kane’s conduct. Dr. Kane points to an email exchange from early January 2019, in which Ms. Maurer describes Dr. Kane’s communications with Ms. Ward as “rude, disrespectful and questioning Laura’s abilities and credentials”. In response, the recipient said: “Jeezus- what’s wrong with these people. Spoiled and entitled”. Ms. Maurer responded, “Agreed. I think we need to bring the hammer down hard on this kind of behaviour”. The behaviour was Dr. Kane’s unprofessional emails.

[236] Dr. Kane argues that Ms. Maurer had a familiar relationship with Ms. Boddie, which meant the investigation was not neutral. In support, she points to evidence that Ms. Maurer had previously hired Ms. Boddie for workplace investigations and considered her report thorough. She refers to an email dated May 14, 2019, in which Ms. Boddie wrote to Ms. Maurer: “I will be at your office at 2pm for an interview today – I will look to see if you are around.” In direct, Ms. Maurer said her only dealings with Ms. Boddie connected to the investigation were emailing her about her availability and receiving Ms. Boddie’s report. In cross-examination, when that email was put to her, Ms. Maurer agreed that Ms. Boddie may have “popped in” to say hello during the investigation.

[237] Dr. Kane argues that Dean Flemming’s involvement in the investigation was also inappropriate. I take this argument to be based on the fact that Dean Flemming was involved in the disciplinary process with Dr. Kane. However, Dr. Kane has not explained what she means by Dean Flemming’s “involvement” in Ms. Boddie’s investigation. The evidence does not support the assertion that Dean Flemming was involved in the investigation. In fact, in Dr. Kane’s submission she notes “given that the Complainant had expressed concerns about Dean Flemming’s contact with the Complainant, Ms. Maurer dealt with the report.” In cross-examination, Ms. Maurer confirmed that in this case, the findings of Ms. Boddie’s report came to her. Ms. Maurer authored the decision letter informing Dr. Kane about the findings of the investigation and dismissing her complaint. Rather, it appears that Dr. Kane objects to Dean Fleming’s subsequent communication to Dr. Kane that her complaint of bullying had been “investigated by the College and dismissed”.

[238] Respectfully, this evidence falls far short of establishing that either Ms. Maurer or Dean Flemming interfered with or undermined Ms. Boddie’s investigation. I do not take Ms. Maurer’s comment about bringing “the hammer down hard” as evidence that Ms. Maurer or anyone else at the College was targeting Dr. Kane or unfair treatment or not taking her allegations against Dr. Sobstyl seriously. The evidence is to the contrary. As the Associate Vice-President of HR, it was appropriate for Ms. Maurer to be involved in responding to Dr. Kane’s complaint, including by appointing a qualified investigator and receiving their report. There is no evidence that Ms. Maurer ever discussed Dr. Kane’s allegations with Ms. Boddie or otherwise attempted to influence the outcome of the investigation. And there is no evidence that Dean Flemming was involved in the investigation at all.

2. Investigation process

[239] Dr. Kane argues Ms. Boddie did not keep notes from her investigation and is not subjected to any regulatory oversight. Neither of these facts are evidence that the College’s response to the complaint was inadequate. Employers are not obligated to contract external investigators to satisfy their obligations under the Code, let alone prove that investigators they hire are subject to regulatory oversight. Though large employers may hire lawyers who are subject to regulatory oversight to conduct investigations, they are not required to do so.

[240] Dr. Kane also argues Ms. Boddie asked her if she was an alcoholic several times during her investigation. Ms. Boddie’s evidence was that she did not ask Dr. Kane if she was an alcoholic. In my view, even if Ms. Boddie asked this question, it is not evidence of a flawed investigation, let alone evidence that the College did not satisfy its duty to respond. In context, while it may have felt insensitive, it was not inappropriate for Ms. Boddie to ask such a question in an investigation that included allegations that Dr. Sobstyl was harassing her based on a perception she had an alcohol use disorder.

3. Biased reasoning

[241] Dr. Kane argues that Ms. Boddie’s investigation relied on “biased reasoning”. She argues this is evident from (as she describes it):

a. Ms. Boddie’s conclusion that the Code did not apply;

b. Ms. Boddie’s failure to acknowledge that she first complained about Dr. Sobstyl in 2018, which had the effect of “obscuring the fact that the College had delayed in addressing her complaint”;

c. Ms. Boddie’s acceptance of Dr. Sobstyl’s assertion that Dr. Kane was “paranoid and delusional”, without considering that this was evidence that Dr. Sobstyl was bullying the complainant;

d. Ms. Boddie’s determination that Dr. Kane’s colleagues were “just joking” about drinking and this was a “full defence”; and

e. Ms. Boddie’s conclusion that it was “impossible” Dr. Kane’s complaints were true.

[242] These examples do not accurately reflect Ms. Boddie’s Report and do not support a finding that the Report was biased. I consider each briefly in turn.

[243] First, Dr. Kane submits Ms. Boddie dismissed the possibility that the Code had any application to her complaint. Though Dr. Kane did not direct me to the evidence, I infer that this submission is based on the following statement, that is made early in the Report:

C. The Code

Analysis & Findings

We did not find any application of the Code to this Complaint and while we kept it in mind, we focused on the Policy and WCB Standards that had clear application.

[244] I do not find the above conclusion supports Dr. Kane’s assertion that Ms. Boddie engaged in biased reasoning. Ms. Boddie’s report considered whether the Code applied and then determined it did not. That is not the same as “dismissing the possibility” of the Code applying. In section two of the Report, Ms. Boddie specifically states that while the terms of reference asked her to investigative the complaint under the College’s workplace bullying and harassment policy, Dr. Kane raised additional issues relating to the Code. While her conclusion that the Code did not apply is not expanded upon, it must be considered in the context of the Report overall, which concluded Dr. Kane’s allegations were unfounded. Having concluded the allegations involving comments of alcohol were unfounded, Ms. Boddie did not explicitly engage in an analysis of the legal test for discrimination. I do not consider this to be inappropriate in the context. Part of proving an allegation of discriminatory bullying and harassment, is proving the assertions of fact that give rise to the allegations.

[245] Second, Dr. Kane argues Ms. Boddie stated that she first complained in 2019, when in fact she complained in 2018, obscuring the fact that the College delayed addressing her complaint. This submission is not supported by the evidence before me. Dr. Kane submitted her complaint in writing on April 8, 2019, shortly after she divulged her allegations to Ms. Maurer on January 21, 2019 and was asked to put her allegations in writing, which is part of the College’s procedure for handling complaints of bullying and harassment. Dr. Kane’s own submissions date this event as January 21, 2019. The evidence does not support her assertion that she initially complained in 2018 and the College’s response was delayed.

[246] Third, Dr. Kane argues Ms. Boddie accepted Dr. Sobstyl’s assertion that she was “paranoid and delusional” as a reason to doubt her credibility, instead of treating this assertion as possible evidence that Dr. Sobstyl was in fact bullying Dr. Kane on a protected ground such as perceived mental disability. I do not find the wording in the Report supports this interpretation. Ms. Boddie agreed with Dr. Sobstyl’s assertion that Dr. Kane’s characterisation of Dr. Sobstyl’s behaviour as a “hate crime” was a “gross exaggeration” of events. There is nothing in the Report to suggest that Dr. Sobstyl referred to Dr. Kane as “paranoid and delusional”, or that Ms. Boddie took that view.

[247] Fourth, Dr. Kane submits that Ms. Boddie made a finding that her colleagues had made comments about alcoholism around Dr. Kane. Dr. Kane then says Dr. Boddie accepted their assertion that they were “just joking” as a full defense. As with other statements in Dr. Kane’s submissions, I do not find this to be an accurate reflection of what Ms. Boddie included in the Report. When discussing witness evidence about alcohol, Ms. Boddie states:

A common notion we learned from all those we interviewed was a connection (real or in jest) to the use of alcohol to help philosophers do their best philosophizing. Again, this is reflected in the good-natured banter in the Department.

[248] While Dr. Kane does not agree with this portrayal of the department, disagreeing with a finding of Ms. Boddie’s is not evidence of an inadequate response to a discrimination complaint. It was within Ms. Boddie’s discretion to reach the conclusions she did. I note I have reached the same conclusion in my decision.

[249] The other section in the Report where comments about alcohol are discussed is in reference a department meeting that took place approximately five years before the investigation. Ms. Boddie did not make a finding on this allegation because it was outside the limitation period of the Policy and “simply too old to be fairly addressed.” Ms. Boddie includes Dr. Kane’s recollections of the event and that of the other witnesses but does not accept any assertions as a “full defence.”

[250] Finally, Dr. Kane argues that the Report is biased because it ends by concluding that it was “impossible” that Dr. Kane’s complaints were true. Again, this is a misrepresentation of Ms. Boddie’s words. The conclusion in the Report reads:

In summary, our findings, based on a balance of probability, are that the five allegations contained within the Complaint are all unfounded and without merit. Therefore, the Respondent could not have violated the Policy.

None of Dr. Kane’s arguments support a finding that the investigation was biased against her. Rather, Dr. Kane’s arguments are further examples of her tendency to misinterpret evidence.

4. Conclusion on College response

[251] The College accepted the investigator’s findings that Dr. Kane’s allegations were unfounded. It communicated those findings to Dr. Kane, along with information on the appeal process. When Dr. Kane appealed, the appeal was decided by Ms. Denton, not Ms. Maurer. At every step, Dr. Kane was informed of the College’s findings, procedures, and actions.

[252] In my view, the College responded reasonably and appropriately to Dr. Kane’s complaint of discriminatory harassment. The College followed its own policy and procedures regarding discrimination complaints. Upon receiving Dr. Kane’s complaint, it promptly hired an experienced external investigator at Dr. Kane’s own request. The investigator conducted a thorough investigation and, while Dr. Kane does not agree with the results, her allegations of bias are not founded. In my view, it was reasonable for the College to accept the findings of the investigation. I am not persuaded that there were any further steps the College needed to take to restore a discrimination free environment, given the investigators’ finding – and my own – that her allegations of discriminatory harassment were unfounded. I dismiss this part of her complaint.

VI RETALIATION ALLEGATIONS

[253] Dr. Kane alleges that the College retaliated against her because it knew she might file a human rights compliant, in violation of s. 43 of the Code.

[254] Section 43 protects people who file human rights complaints from retaliation. At the same time, s. 43 does not prohibit all conduct that bears some connection to a human rights complaint: Birchall v. BCS 61 Strata Corporation and another, 2018 BCHRT 29 at paras. 67-69.

[255] To succeed with her Retaliation Allegations, Dr. Kane must prove:

a. The College was aware that she made or might make a human rights complaint at the time of the alleged retaliation;

b. The College intimidated, coerced, imposed a penalty on, denied a right or benefit to, or otherwise adversely treated her; and

c. There is a sufficient connection between the impugned conduct and the complaint or possible complaint. This can be established in two ways:

i. by proving the respondent intended to retaliate for the complaint; or

ii. by inference, where the respondent can reasonably have been perceived to have engaged in the conduct as retaliation for the complaint: Gichuru v. Pallai, 2018 BCCA 78 at para. 58 [Pallai].

[256] I begin by setting out the events giving rise to the Retaliation Allegations.

A. Events giving rise to Retaliation Allegations

[257] As I understand it, Dr. Kane alleges that the College retaliated against her, first, by denying her requests for accommodation. However, above, I have found that the College met its duties to accommodate Dr. Kane. I am not persuaded that in the course of the accommodation process, the College engaged or threatened to engage in conduct described in s. 43 of the Code. As should be apparent from my analysis of the Accommodation Allegations, I do not accept that the College approached the accommodation process with hostility, let alone a retaliatory animus. Rather, I am satisfied that they approached their duty in good faith and in light of the information available to them at the material time I do not consider this allegation further.

[258] Next, I understand that Dr. Kane alleges that the College retaliated against her by warning and then disciplining her for the content and tone of her email communications between 2018 and 2020. This is where I focus my analysis.

1. May 2018 warning

[259] On May 8, 2018, Dr. Kane sent an email to the general email address for Facilities Services at the College’s New West campus. In that email, Dr. Kane expressed her concern about a temporary classroom to which she had been assigned. Dr. Kane informed facilities that she was “stuck in the hellhole of a room, S1714, just temporarily during renovations, with a full class of 27 and only one door!” She then asked “would that be safe in the event of an emergency? I think not.” The email continues by describing other issues with the room and reiterates Dr. Kane’s concern about the “single door” as being a “serious problem.”

[260] The Site Services Supervisor of Facilities Services responded by assuring Dr. Kane that the spaces are built to “fire code regulations.” He also told her that he would contact Siemens about the room being too stuffy and hot. Finally, he informed Dr. Kane that another employee had provided him with a list of her classes and that he would attempt to move her classes to another location.

[261] Dr. Kane replied, saying:

But one door only, in an earthquake? In the event of an intruder? It just seems to me like with that many people in a room, there should be more than one way out. Just my two cents worth/safety suggestion. I will never teach in that classroom or any classroom like it if I can help it!

[262] Ms. David was copied on these emails. She forwarded them to Associate Dean Tyakoff, who found them to be disrespectful and inconsistent with the College’s expectation of how faculty would interact with facilities staff. Associate Dean Tyakoff personally apologized to the Site Supervisor and reported the issue to the Dean.

[263] Dean Flemming wrote to Dr. Kane about room assignments and the tone of her emails. He informed her that he and others had worked quickly to assign temporary classrooms after being informed of the renovations and would work with room bookings to find her another space. He ended his email by noting “I want to point out to you that I do not appreciate the tone of your email to facilities, which I found to be disrespectful.”

[264] Dr. Kane wrote back the following day. Her email reads:

Are you kidding? There was nothing disrespectful whatsoever in tone or content. Certainly, the fellow at facilities said nothing of the sort, and just replied cordially to my safety concern and suggestion!

[…]

I am very surprised by your reaction! Bizarre!

[265] Shortly after, Associate Dean Tyakoff wrote to Dr. Kane, stating that she had read her email to Dean Flemming and her first email to Facilities Services and found the tone of both emails disrespectful. Associate Dean Tyakoff stated she did not want to continue the conversation by email and said it would be better to meet. She then asked Dr. Kane when a good time would be.

[266] Associate Dean Tyakoff met with Dr. Kane, her union representative Mr. Millis, and an HR employee later that day – May 9, 2018. The parties characterise the meeting differently in their submissions. Dr. Kane characterizes it as a meeting that did not result in any discipline because her complaint about the room was valid. The College characterizes the meeting as a warning to Dr. Kane to be mindful of the tone of her emails. I find nothing turns on this difference.

[267] It is not entirely clear whether Dr. Kane alleges that this meeting was retaliation under the Code. If she does, I dismiss the allegation because, at this point, Dr. Kane had not contacted Ms. Ward regarding her accommodation requests. There is no evidence that suggests Dr. Kane was considering any legal actions against the College, including a possible human rights complaint, or that the College perceived her to be. However, the meeting and the College’s warning to Dr. Kane is important context for the discipline that followed.

2. First Discipline Letter (February 19, 2019)

[268] In January 2019, the College contacted Dr. Kane for a second time about the tone and language she used in some of her emails. By this point, Dr. Kane was having conversations with Ms. Ward about accommodating her voice disorder, and Ms. Maurer and others were aware of Dr. Kane’s emails. Dr. Kane had also spoken about Ms. Ward in her emails to others at the College. The problematic emails regarding Ms. Ward were:

a. The December 20, 2018 email to Ms. Ward, in which Dr. Kane referred to the disability management specialist as a “total ignoramus, medically speaking” and put Ms. Ward’s job title (disability management specialist) in quotes, implying a sarcastic tone;

b. The January 3, 2019 email to Ms. Constable, where Dr. Kane referred to the Accommodation Policy and Ms. Ward’s “medical advice” (that Dr. Kane consider renting a microphone from the library) as “idiotic”.

[269] During this same period, Dr. Kane was emailing Dr. Sobstyl about their interactions at the department meeting. Those emails are reproduced above in the section of this decision on Dr. Kane’s Discriminatory Harassment Allegations, and include an instance where Dr. Kane called Dr. Sobstyl a “nasty woman”.

[270] On January 21, 2019, Ms. Maurer and Dean Flemming met with Dr. Kane to discuss these emails. It was during this meeting that Dr. Kane alleged Dr. Sobstyl had been bullying her and Ms. Maurer provided her with information about how to make a complaint. Because of Dr. Kane’s allegations against Dr. Sobstyl, the College did not discipline her in connection with the emails to Dr. Sobstyl. I do not address those emails further in relation to the Retaliation Allegations.

[271] On February 19, 2019, the College issued Dr. Kane with a formal written reprimand for her emails about Ms. Ward [First Discipline Letter]. In that letter, Dean Flemming explained “Your conduct represents a breach of your duty as a faculty member to help create a working environment that is respectful and free from harassment”. He considered that Dr. Kane had previously been warned about the tone of her email communications and that she did not “acknowledge [her] behaviour was inappropriate nor express remorse for [her] actions”. The letter was subsequently revised on May 29, 2019, to remove the line that Dr. Kane had a “pattern of behaviour whereby [she used] rude and disrespectful language in emails to other College employees”.

[272] The DFCA did not grieve this discipline.

3. Second Discipline Letter (September 21, 2020)

[273] On August 21, 2020, Dr. Kane sent Acting Dean Tyakoff and Acting Associate Dean John Higgenbottom the Office Letter. It is a long email, and I only highlight the relevant parts. Overall, however, the tone is assertive, frustrated, and demanding.

[274] In the second paragraph of her letter, Dr. Kane summarizes its contents as follows:

In this email I simply note some relevant passages from [my doctor’s] letters attached; state what needs to be done by the College; and explain how I will proceed in the event that what needs to be done by the College does not occur.

[275] Dr. Kane states that her new office needs to be in the Social Sciences area (N3400) and requires six features to satisfy the medical accommodation. Those features are: a window, private desk, private computer, four-drawer locking filing cabinet, one bookcase (four shelves), and some wall-mounted shelving for books. She then asks that no one contact her about the contents of her email and states she should be contacted with the location of her new office by August 31, 2020.

[276] Dr. Kane’s email ends with the following passage:

If I do not receive this email concerning the location of my new office by August 31^st (2020), I will put together a package covering all the issues concerning my treatment by Douglas College, and deliver that package to the MLA for New Westminster. The MLA for New Westminster is Judy Darcy, and she is the Minster for Mental Health and Addictions. She has a keen interest in issues such as workplace bullying and its effects; medical accommodations in the workplace; etc. her office is a few blocks away from the college […] A covering letter will be added to the package concerning my case in which I ask her to contact Douglas College about how Douglas College deals with its employees who are in need of medical accommodations. Since my accommodations are so straightforward, inexpensive and easy to satisfy, I must confess I am at a loss to understand why nothing whatsoever has been done to help me.

Perhaps Judy Darcy who is an authority on such matters will be able to explain all of this to me after she asks Douglas College some questions on my behalf.

[277] Acting Dean Tyakoff was very frustrated with this email. She had stepped in to fill the role of Dean during the pandemic. She had worked tirelessly to implement safe work protocols, follow changing government directives, and manage faculty issues. She described her work in the summer of 2020 as “hell on earth”. She received Dr. Kane’s Office Email on a Friday afternoon after a long and stressful week.

[278] Acting Dean Tyakoff promptly reached out to Human Resources for support in responding to the email. She wrote to Dr. Kane, requesting a meeting. Dr. Kane responded the same date as follows:

Thank you for your email, Shaun.

Please be advised that I will not be attending any such meeting.

I will include a copy of this and your email in the package I provide to Judy Darcy concerning the college’s actions re. my medical accommodations, though.

Please do not respond to this email.

[279] Eventually, Dr. Kane agreed to meet by phone. She was accompanied by a DFCA representative. The meeting was on September 4, 2020. Acting Dean Tyakoff explained that she found the tone of Dr. Kane’s Office Email to be demanding, threatening, and intimidating. Dr. Kane disagreed with this characterisation, and said she was pleading for help with her requests for accommodation. She apologised for any personal upset she may have caused.

[280] On September 21, 2020, the College issued Dr. Kane a second formal written reprimand for her emails dated August 21 and 26, 2020 [Second Discipline Letter]. Acting Dean Tyakoff wrote that “the tone, content and language used in your messages was disrespectful, insubordinate and not in alignment with the attitude and behavior expected of a faculty member toward their Dean, or any colleague”. She went on: “Feeling frustrated with College processes is not an acceptable reason to communicate with a colleague or superior in such an unnecessarily aggressive, dismissive and directive matter”. She noted that the College had previously warned Dr. Kane about her communications, and that Dr. Kane continued to make excuses for her behaviour. Acting Dean Tyakoff concluded: “These behaviours demonstrate a continued, escalated pattern of failing to conduct yourself in a respectful and collegial manner with your colleagues, occurring within 14 months of the last written reprimand.” She noted that “further misconduct will result in further disciplinary action up to and including termination of your employment”.

[281] Before their meeting, the College had considered imposing a suspension on Dr. Kane, given she had previously been warned about her emails. However, it instead elected to impose another written reprimand, considering Dr. Kane’s apology and explanation that her conduct arose from the accommodation process.

[282] The DFCA grieved this discipline, but withdrew the grievance at Step One.

B. Retaliation Allegations

[283] I accept that, when the College issued the First and Second Discipline Letters, it was aware that Dr. Kane might make a human rights complaint. By November 2018, she had made a request for accommodation under the Accommodation Policy. While she had not specifically referenced the prospect of a human rights complaint before the First Discipline Letter, there is no doubt that she was raising issues about her accommodation and the College may reasonably have perceived that a complaint was possible. For the sake of this decision, I accept that it was aware of a possible human rights complaint before the First Discipline Letter.

[284] There is no dispute that, when the College issued the Second Discipline Letter, it was aware Dr. Kane might file a complaint against it under the Code. On December 10, 2019, she advised Dean Flemming that in addition to trying to work with Ms. Ward, she was also working with a union, a lawyer and the “human rights commission” among others because Ms. Ward was refusing to accommodate her. And in her August 21, 2020 email to Acting Dean Tyakoff, Dr. Kane expressed that she was contemplating escalating her complaints about accommodation to her MLA. When Acting Dean Tyakoff sought advice about responding to that email, Ms. Ward noted “She has (as you are likely aware) continued to make threats of legal action of some kind”.

[285] There is no dispute that discipline is the type of conduct engaged by s. 43 of the Code. I agree with Dr. Kane that disciplinary actions can be considered “a penalty” and satisfy the second element of the test for retaliation.

[286] Dr. Kane’s Retaliation Allegations turn on whether she has proven a sufficient connection between the prospect she might make a human rights complaint, and the College’s decision to impose two written reprimands for her email communications.

[287] As I have said, there are two ways to establish a sufficient connection. The first way is through direct evidence that “the respondent intended to retaliate”. This can be difficult to establish. As observed in C.S.W.U. Local 1611 v SELI Canada (No. 3), 2007 BCHRT 423 [C.S.W.U.] at para. 17, “[r]etaliation will rarely be acknowledged as such by a respondent, and will most often need to be inferred from a review of all the evidence”. In this case, there is no direct evidence that the College intended to retaliate against Dr. Kane.

[288] The second way of establishing a sufficient connection is by inference, namely by proving that “the respondent can reasonably have been perceived to have engaged in that conduct by retaliation”: Pallai at para. 58. “Reasonable perception” is assessed from the point of view of “a reasonable complainant, apprised of the facts, at the time of the impugned conduct”, and not from the point of view of the particular complainant who alleges retaliation: Pallai at paras. 58 and 66.

[289] Unlike other discrimination provisions under the Code, s. 43 does not contain a justification clause, meaning that the Code does not set out a statutory defense for retaliation. However, the Court emphasised that a respondent’s evidence is nevertheless important for assessing the context of the alleged retaliation; in particular, for assessing whether it is reasonable to perceive that a respondent’s actions amount to retaliation. The Court of Appeal held that a respondent’s explanation for their conduct “must be considered together with all of the evidence in assessing whether the requisite connection has been established”: Pallai at para. 59.

[290] Dr. Kane’s submissions about her retaliation allegations are not well developed. For the most part, she points to her emails that led to the discipline, and internal College emails about her, and then asserts that the College acted in retaliation. In any event, interpreting her submissions at their highest, I understand her to make three arguments about why a sufficient connection may be inferred. I address each in turn.

[291] First, Dr. Kane argues that a sufficient connection can be inferred because she was disciplined for emails in which she was requesting accommodation. Generally, I accept that in a case where discipline in response to an employee communication is alleged to be retaliatory, an inference of retaliation could be drawn from the subject matter of the communication, where the subject matter is the employee’s rights under the Code. However, I am not satisfied that is the case here.

[292] The Tribunal has recognized that an employer remains entitled to manage employees and investigate potential misconduct even where a complaint is pending, and that the prospect of a human rights complaint in the context of an ongoing employment relationship does not suspend the roles and responsibilities that go along with that relationship: Dhaliwal v. Burnaby Association for Community Inclusion, 2019 BCHRT 19 at para. 27, citing Smith v. Salt Spring Island Parks and Recreation Commission and Gibbon, 2009 BCHRT 89 at para. 84. The Tribunal affirmed this principle in Patrick v. B.C. Emergency Health Services (No.4), 2026 BCHRT 165 at para. 112.

[293] The fact that the First and Second Discipline Letters arose in connection with Dr. Kane’s requests for accommodation is, in my view, insufficient to support that a reasonable complainant, apprised of the circumstances, would view it as retaliatory. To the contrary, the letters addressed Dr. Kane’s conduct which, on its face, warranted a response from the employer. This was not the first time that Dr. Kane had been warned about her emails. I am satisfied on the evidence before me that for the purposes of its disciplinary decisions, the issue for the College was not the subject matter of her emails (accommodation), but the way she was communicating. The issue was her conduct – how she was communicating – not the underlying subject or topic of her communications. The discipline was proportionate to the issue being addressed, and does not invite an inference of retaliation.

[294] Second, Dr. Kane refers to internal College emails which refer to the “MK situation” and discuss the College’s strategy for responding to her accommodation requests, including to ensure they were tracked. She cites Mr. Odoom’s email observing that “all goodwill has been exhausted, to a point of downright hostility”. I addressed that email above.

[295] Dr. Kane also specifically cites the process leading to the Second Discipline Letter, in which Acting Dean Tyakoff consulted with Ms. Ward and Ms. Janssen, the Associate Director of Human Resources. In response, Ms. Ward, wrote:

I am out of the office for the next several days but Julia could assist you with reviewing the notes of our last accommodation meeting. We had agreed to look at classroom assignments not her office location was my recollection. She has (as you likely are aware) continued to make threats of legal action of some kind. Her request with a deadline is not reasonable at all at this point.

[296] Later, Ms. Janssen responded to Ms. Ward and others:

I wanted to give you a heads up that we will be initiating an investigation next week into the contents of this email from Marilyn Kane which is inappropriate. The plan is not to address her requests for a new office until the behaviour has been addressed.

[297] As I understand it, Dr. Kane’s argument is that a reasonable complainant apprised of these circumstances would perceive that the College’s discipline was retaliatory. Respectfully, I disagree.

[298] I recognize that the process of responding to Dr. Kane’s accommodation requests was difficult for everyone involved. Dr. Kane was the most directly and seriously impacted, and I accept that her health was deteriorating over the period of the complaint. However, and perhaps related, her communication style and refusal to engage collaboratively with the College also made the process difficult for the College participants. In this context, it is not surprising that there are internal College communications discussing and strategizing about how to respond to Dr. Kane, and that patience for Dr. Kane was wearing thin. However, none of these internal communications support that the College was motivated to retaliate against Dr. Kane for raising human rights issues. As I have said, the basis for the College’s discipline is clear on the face of the conduct it was responding to, and the discipline was measured and proportionate to the issues it was addressing. Nor do I find, if this is what Dr. Kane is suggesting, that the College was withholding accommodations as a punishment for her threats of legal action.

[299] Finally, I understand that Dr. Kane argues that retaliation could be inferred because the discipline imposed on her was harsher than consequences imposed on her colleagues for more egregious behaviour. In her closing submissions, she asserts “Many people in the College, including faculty like her, had done disrespectful things and not been disciplined. As an example, one person had had sex with a student and was then promoted… they were not disciplined”. The evidence before me simply does not support Dr. Kane’s assertions or allow me to make a comparison between the discipline imposed on her and other colleagues. In her evidence, she would not identify the faculty member she alleges was not disciplined. She did not offer any other particulars of this claim. It does not support an inference of retaliation.

[300] I find the circumstances here to be analogous to those Patrick v. B.C. Emergency Health Services (No.4), 2026 BCHRT 165 [Patrick]. In that case, the employer disciplined the complainant for conduct which it found had “contributed to an uncomfortable and inappropriate workplace”: para. 123. Part of the conduct underlying the discipline was that the complainant had made comments about her human rights complaint to her co-workers. The Tribunal determined the evidence did not support a finding that the complainant was disciplined for speaking out about her human rights complaint. The Tribunal made the following findings at para. 129:

The evidence does not bear out that BCEHS disciplined Ms. Patrick for speaking out about her human rights complaint. In fact, the evidence overwhelmingly demonstrates that Ms. Patrick was disciplined because she made disparaging comments to others about a fellow paramedic, insinuated she was out to get him fired, and shared confidential information, and that in doing so, she breached numerous BCEHS policies. The fact that Ms. Patrick referenced her human rights complaint when she was making negative comments about AB and sharing confidential information, is not enough to amount to a “sufficient connection” for the purposes of s. 43 of the Code.

[301] Similarly, in Dr. Kane’s circumstances, the evidence shows the College disciplined her for email communications which it reasonably determined were unprofessional, disrespectful, and insubordinate. The discipline was proportionate to the conduct being addressed. The fact that there was some connection between those emails and the human rights issues that Dr. Kane was raising does not amount to the “sufficient connection” required to trigger the protection of s. 43 of the Code.

[302] I dismiss Dr. Kane’s Retaliation Allegations.

VII CONCLUSION

[303] For the foregoing reasons:

a. I dismiss Dr. Kane’s allegations of discrimination under s. 13 of the Code.

b. I dismiss Dr. Kane’s allegations of retaliation under s. 43 of the Code.

Kylie Buday
Tribunal Member