McRae-Chalus v. City of Burnaby (No.2), 2026 BCHRT 239
Date Issued: November 10, 2026
File: CS-002828
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:
Candace McRae-Chalus
COMPLAINANT
AND:
City of Burnaby
RESPONDENT
REASONS FOR DECISION
Tribunal Member: Andrew Robb
On their own behalf: Candace McRae-Chalus
Counsel for the Respondent: Gabrielle Scorer, Kate Dueck, and Alie Teachman
Date of Hearing: February 9 to 27, 2026; May 8, 2026
Location of Hearing: By video conference
I INTRODUCTION
[1] This decision explains why I have decided to dismiss Ms. McRae-Chalus’s human rights complaint against the City of Burnaby [the City].
[2] Ms. McRae-Chalus was an employee of the City. She says the City discriminated against her based on her physical disability, contrary to s. 13 of the Human Rights Code, by failing to reasonably accommodate her vocal cord dysfunction, between September 2019 and January 2021. She was on disability leave throughout this time. She says the City unreasonably refused to allow her to return to her pre-disability position as a Bylaw Enforcement Coordinator [BEC], and did not reasonably respond to information she provided about her disability and her restrictions during the accommodation process. In particular she complains about the City’s conduct during a meeting on September 18, 2020, regarding her possible return to work [the RTW meeting].
[3] The City denies discriminating. It says Ms. McRae-Chalus has not proven the elements of her case, including that she had a disability within the meaning of the Human Rights Code. In the alternative, the City says its conduct was justified under the Code, as it fulfilled its duty to reasonably accommodate Ms. McRae-Chalus. The City says it maintained Ms. McRae-Chalus’s employment and provided disability benefits throughout the period of her complaint, and it acted reasonably upon learning of her medical restrictions, by investigating and assessing whether she could be accommodated in her role as a BEC or in a different position with the City.
[4] I heard this complaint over three weeks. In making this decision, I have considered all the evidence admitted at the hearing and all the information in the parties’ written arguments. In these reasons I only refer to the information necessary to explain my decision.
[5] I dismiss the complaint for the reasons set out below. I find Ms. McRae-Chalus has established that she had a disability, during the time period relevant to her complaint, and that her disability was a factor in adverse impacts she experienced as a result of going on extended leave from her employment with the City. However, I find the City has proven that its conduct was justified under the Human Rights Code.
[6] The City’s accommodation process was not perfect. The City did not consistently take a proactive approach to obtaining information about Ms. McRae-Chalus’s restrictions, and took an unhurried approach to her desire to return to work except at times when it appeared she was about to lose her disability benefits. However, I find these problems did not affect the ultimate outcome of the accommodation process, and considering the process as a whole I find the City met the standard of accommodation to the point of undue hardship.
[7] When she filed this complaint, Ms. McRae-Chalus was still employed by the City, while she was on long-term disability leave. The City later terminated her employment, while she was still on leave. After her employment was terminated, she filed two additional human rights complaints, one alleging the termination was retaliation for filing this complaint, and another alleging the termination was discriminatory. Those complaints are proceeding separately in the Human Rights Tribunal process. This decision is about the accommodation process that occurred before the termination, from 2019 to early 2021. I make no findings about the termination of Ms. McRae-Chalus’s employment.
II BACKGROUND, WITNESSES, AND PRELIMINARY ISSUES
[8] I begin by giving some background information, to put my decision in context, including information about several organizations involved at various stages of Ms. McRae-Chalus’s complaint. I will then introduce the witnesses I heard from, and I will address two preliminary issues arising from Ms. McRae-Chalus’s evidence, before setting out my findings of fact.
[9] Ms. McRae-Chalus’s position with the City was unionised. She was a member of CUPE Local 23 [the Union]. Her employment was subject to a collective agreement between the City and the Union. In 2020, the Union filed a grievance alleging the City failed to reasonably accommodate her disability, and treated her in a demeaning manner during the accommodation process. In 2021, the Union withdrew the grievance. The Tribunal previously dismissed the City’s application to dismiss the complaint on this basis, finding the withdrawal of the grievance did not resolve Ms. McRae-Chalus’s allegations about the accommodation process in her human rights complaint: McRae v. City of Burnaby and others, 2025 BCHRT 88 at paras. 110 to 124.
[10] Under the collective agreement, Ms. McRae-Chalus had access to disability benefits. These benefits were administered by Burnaby Municipal Benefit Society [BMBS], in accordance with the collective agreement and the benefits plan document. BMBS was a non-profit society governed by a board of directors comprised of City and Union appointees. Its purpose was to administer employment benefits to City employees.
[11] BMBS contracted with Manulife Financial [Manulife] to evaluate City employees’ claims for disability benefits. Manulife’s role included reviewing medical information and making recommendations to BMBS about whether employees should be approved to receive disability benefits. The City says this process permitted a review of employees’ disabilities and their fitness to return to work while ensuring employees’ confidential medical information was not disclosed to the City.
A. Witnesses
[12] I now turn to introducing the witnesses who testified at the hearing. I want to thank all the witnesses for their testimony. Some of them are now retired, and others had to take time away from important work to participate in the hearing. I appreciate their taking the time to assist the Tribunal to make a decision about this case, and their flexibility about the timing of their testimony, during the hearing.
[13] Ms. McRae-Chalus testified at the hearing and called five additional witnesses:
a. Andy Chalus, Ms. McRae-Chalus’s husband. He testified about his observations of how Ms. McRae-Chalus was affected by her vocal cord dysfunction, and by the events described in her human rights complaint. He also testified about the RTW meeting, which he attended as a support person for Ms. McRae-Chalus.
b. Dino Echelli, a City employee who previously served as a Union representative, initially as a steward, and then as a vice-chair of the Union. Ms. McRae-Chalus says Mr. Echelli was involved in her accommodation grievance. However, Mr. Echelli testified that he could not recall being involved with Ms. McRae-Chalus’s request for accommodation or her grievance. He said the Union’s chair or president would normally be involved in those matters.
c. Bruce Campbell, a City employee who served as president of the Union in 2020. He represented Ms. McRae-Chalus in her accommodation grievance, and in the RTW meeting.
d. Mike Hurley, the Mayor of Burnaby, and Chad Turpin, the Mayor’s adviser at the time, who both met with Ms. McRae-Chalus in December 2020, after she requested a meeting to discuss how the City was responding to her request for accommodation.
[14] The City called six witnesses:
a. Pat Tennant, the City’s director of human resources in 2019 and 2020. She gave advice to other human resources staff but had little direct involvement with Ms. McRae-Chalus. She testified about City policies and practices relating to disability leaves and accommodation, including the relationship between the City, BMBS, and Manulife.
b. Angela Harris, a labour relations adviser in the City’s human resources office in 2019 and 2020. She was responsible for addressing human resources issues in Ms. McRae-Chalus’s department until 2019, when her portfolio changed and she became responsible for different City departments. She testified about her involvement with Ms. McRae-Chalus’s file before and after her portfolio changed, and about the grievance process in general.
c. Marilian Rosas, a labour relations adviser who became responsible for human resources in Ms. McRae-Chalus’s department after Ms. Harris’s portfolio changed. She led the RTW meeting. She testified about her involvement with Ms. McRae-Chalus’s file, including what happened at the RTW meeting.
d. Justyna Czerniej, the City’s assistant director of human resources in 2019 and 2020. She was Ms. Rosas’s direct supervisor, and advised Ms. Rosas on matters related to the accommodation process for Ms. McRae-Chalus. She attended the RTW meeting, and she testified about the meeting and her involvement with Ms. McRae-Chalus in general.
e. Peter Kushnir, the City’s deputy chief building inspector, and Ms. McRae-Chalus’s direct supervisor in 2016 and 2017. He testified about the role and responsibilities of BEC’s, and his involvement in the City’s accommodation process for Ms. McRae-Chalus.
f. Lambert Chu, the City Manager and chief administrative officer in 2020. He testified about his role in the accommodation grievance.
[15] I have accepted most of the evidence given by the witnesses, about the issues relevant to my decision. I have not found it necessary to make credibility findings, except in relation to Ms. McRae-Chalus’s testimony about her disability. I explain these findings below, in my decision about whether she had a disability.
B. Admissibility of medical records and other documents
[16] There is an issue about medical records and letters from health providers that Ms. McRae-Chalus sought to admit as evidence at the hearing. Nothing in my decision about the complaint turns on this issue, but I describe it briefly here, to put my findings in context.
[17] Before the hearing, Ms. McRae-Chalus indicated she planned to call additional witnesses including Dr. Angela Hutchinson, Ms. McRae-Chalus’s family doctor; Dr. Zameel Dewji, a specialist doctor who assessed her; Sherri Zelazny, a speech language pathologist who treated her; and Antoinette Gussenhoven, an independent rehabilitation consultant who contracted with BMBS as part of its management of disability benefit claims by City employees. Ultimately Ms. McRae-Chalus did not call any of these witnesses, but she sought to rely on documents they created, as part of her evidence.
[18] The City objected to the admission of most records created by the doctors and Ms. Zelazny, on the basis that they constitute expert opinion and hearsay evidence, and Ms. McRae-Chalus did not comply with the Tribunal’s rules regarding the admission of expert evidence, or establish the necessity of admitting the medical records without making their authors available for cross-examination.
[19] At the end of the hearing, before the parties filed their final written arguments, I made a decision about the City’s objection to the medical records. I found that, in the circumstances of this case, it would be unfair for me to consider the medical records for the truth of their contents, in deciding whether Ms. McRae-Chalus proved the elements of her case. But I found I could consider the information available to the City during the accommodation process, including medical records and letters created by Ms. McRae-Chalus’s doctors, in my assessment of that process.
[20] As I said above, nothing in my decision turns on the admissibility of the medical records. I have found Ms. McRae-Chalus established the elements of her case—including that she had a disability, and it was a factor in her long-term leave from her employment—without relying on the medical records. I have considered the medical records that were available to the City during the accommodation process, to understand the City’s conduct during that process, and I have concluded that the City satisfied its duty to reasonably accommodate Ms. McRae-Chalus. My decision not to admit the medical records for the truth of their contents had no impact on my decision to dismiss the complaint.
[21] There is a different issue regarding records created by Ms. Gussenhoven. She was not a health provider but an external contractor of BMBS, who worked with City employees on disability leave. Part of her role was to facilitate communications between the City, BMBS, Manulife, and Ms. McRae-Chalus, and ensure each of these parties had the information they needed—and were entitled to—from the others. From 2017 until August 2020, most of Ms. McRae-Chalus’s communications with the City about matters related to her leave and the accommodation process went through Ms. Gussenhoven.
[22] The City objected to the admission of records created by Ms. Gussenhoven on the basis that she was not called as a witness, to speak to these records. During the hearing, Ms. McRae-Chalus requested an order for Ms. Gussenhoven to attend and testify at the hearing, but I denied the request. Ms. McRae-Chalus first made the request after the hearing started and I found that granting it at that point would not promote the just and timely resolution of the complaint. Despite this, I have considered the records created by Ms. Gussenhoven that Ms. McRae-Chalus sought to admit.
[23] Although Ms. Gussenhoven did not testify at the hearing, most of the records she created that Ms. McRae-Chalus sought to admit were emails to City employees in the human resources department, in most cases to Ms. Rosas and Ms. Harris. The City did not deny that the records Ms. McRae-Chalus sought to admit were genuine copies of the correspondence between Ms. Gussenhoven and human resources staff and other people involved in the accommodation process. Some of these records are necessary for me to understand the timeline of events relevant to the complaint, and the dates when the City obtained information about Ms. McRae-Chalus’s medical condition or restrictions. I find it would not be unfair to the City to admit the records created by Ms. Gussenhoven, and I have considered them for these purposes.
C. The City’s access to Ms. McRae-Chalus’s medical information
[24] There is an issue about whether the City had access to the information that Manulife and BMBS received about Ms. McRae-Chalus’s medical condition. Again, nothing in my decision about the complaint turns on this issue, but I describe it briefly here, to put my findings in context.
[25] While Ms. McRae-Chalus was on leave from her employment, BMBS and Manulife regularly required her to provide updated medical information, including reports from her doctors, to confirm her continued eligibility for disability benefits. In some of Ms. McRae-Chalus’s statements at the hearing, and in interim applications filed before the hearing, she took the position that the City had authority over BMBS, and access to all the medical information she provided to BMBS.
[26] I do not accept this argument. Ms. McRae-Chalus did not pursue it, in her final written argument about the complaint, and she did not point to any evidence that could support a finding that the City had access to all the medical information that BMBS and Manulife received about her. While there is evidence that could suggest the City had access to some information received by BMBS, I do not accept that the City’s human resources staff, or anyone else who made decisions about the City’s accommodation of Ms. McRae-Chalus, had access to all the medical information Ms. McRae-Chalus provided to BMBS or Manulife. Ms. Tennant testified that the City could not access that information without formal consent from Ms. McRae-Chalus. This is supported by evidence provided by Ms. McRae-Chalus about Ms. Gussenhoven’s communications with the City: in an email dated August 25, 2020, Ms. Rosas asked Ms. Gussenhoven for a copy of a medical report about Ms. McRae-Chalus, and Ms. Gussenhoven declined to provide it without Ms. McRae-Chalus’s consent.
[27] As I said, nothing in my decision turns on this issue. As I explain below, even if the City had access to the same medical information that BMBS and Manulife received about Ms. McRae-Chalus, I would have still found the City acted reasonably in the accommodation process, and fulfilled its duty to accommodate her.
III FACTS
[28] I will now set out my findings of fact about the relevant issues in Ms. McRae-Chalus’s human rights complaint, based on the evidence that was admitted at the hearing.
A. The Bylaw Enforcement Coordinator role
[29] Ms. McRae-Chalus started working for the City in 2013. In June 2016 she started working full-time as a BEC in the City’s Building department, which was later known as the Planning and Building department. The department normally employed a total of four BEC’s.
[30] BEC’s spend most of their time sitting at a desk, using a computer work station. They work at City Hall, although some of them worked remotely, part of the time, during the COVID pandemic. They occasionally perform site inspections at properties in Burnaby, along with City inspectors. Their role includes facilitating compliance with City building bylaws. This involves communications with City staff, property owners, contractors, individuals who complain about possible bylaw violations, and other stakeholders.
[31] Each BEC was responsible for a number of files related to possible bylaw violations. Ms. McRae-Chalus testified that she had around 70 files at a time, when she worked as a BEC. In theory a single BEC was responsible for each file, from file opening to closing. Ms. McRae-Chalus testified that this was preferable, to ensure that the BEC responsible for each file had a complete understanding of the file. However, some files dragged on for years, and would be reassigned to different BEC’s over time, due to employee turnover or if the BEC who was originally assigned to a file became overwhelmed with their case load.
[32] Ms. McRae-Chalus testified about her process for investigating files. She said that when she received a file for a reported or suspected bylaw violation, she would first collect all the records and documents about it, especially inspector reports. This would involve communicating with other City staff, and possibly going to the records room at City Hall. She would then communicate about the bylaw issue with the property owner and other stakeholders, such as contractors and neighbouring owners, sometimes in person but more often by phone or in writing. She documented these steps in various ways. Some investigations would require going to the site of the suspected bylaw violation and meeting with the owner or other stakeholders to inspect and discuss the issue.
[33] Most reported bylaw violations were addressed through voluntary compliance, after discussions with the property owner. Occasionally bylaw violations would lead to fines. More rarely, they could lead to litigation. Ms. McRae-Chalus was involved with a file that appeared to be going to litigation at the time when she began her disability leave, in 2017.
[34] The degree of verbal and in-person communication required by the BEC job is relevant to Ms. McRae-Chalus’s human rights complaint. Mr. Kushnir testified that verbal communications were a key component of the job. He said BEC’s may be required to speak to property owners directly, as it was a “customer-facing” role, and customers sometimes preferred to communicate verbally, by phone or in person. Many property owners were not familiar with relevant bylaws, so there was often a need for discussion with them to ensure they understood the issues. BEC’s might also have to speak with City inspectors “on the fly”, since inspectors were usually involved in bylaw violation files, but they had their own tasks to attend to, so meetings sometimes needed to be set up quickly. BEC’s might also have to speak to lawyers or adjudicators, in cases where bylaw violations led to enforcement action or litigation.
[35] In her testimony, Ms. McRae-Chalus said most communications with BEC’s was in writing, usually by email, but she did not dispute that verbal communications were a normal part of the job. She said BEC’s were expected to be able to communicate with property owners and others verbally, and to attend site inspections involving in-person meetings with City inspectors, property owners, and others. In an email to Ms. Gussenhoven, on March 18, 2020, Ms. McRae-Chalus said that when she worked as a BEC, she was required to be available to talk at any time, and there was never a period of even 30 consecutive minutes when she was not required to talk, for work-related reasons. In her testimony at the hearing, Ms. McRae-Chalus affirmed this statement. She said she made the statement in an effort to have the City take her restrictions seriously and consider a return to work.
B. Beginning of disability leave in 2017
[36] Although Ms. McRae-Chalus’s human rights complaint only alleges discrimination in 2019 and 2020, some events that happened before that period are relevant to the complaint.
[37] Ms. McRae-Chalus went on disability leave in August 2017, when she was experiencing difficulty and pain from speaking. This was the vocal cord dysfunction that she says the City later failed to accommodate. She says that in August 2017 she was under a lot of stress, and she initially thought she had laryngitis. She believed the problem would go away once she had rested her voice, but she continued to have pain and difficulty from speaking. She testified this pain has never entirely gone away.
[38] After August 2017, Ms. McRae-Chalus never returned to work with the City except on brief occasions in October and November 2017, described below. After going on leave, Ms. McRae-Chalus received disability benefits from BMBS. By October 2017, BMBS had contracted with Ms. Gussenhoven to work with Ms. McRae-Chalus, and by November 2017 Ms. Gussenhoven advised the City’s human resources department that Ms. McRae-Chalus had medical restrictions on speaking. In response, the City advised Ms. Gussenhoven that the BEC role required the ability to speak.
[39] In October 2017 and again in November 2017, Dr. Hutchinson cleared Ms. McRae-Chalus to return to work briefly, for just one day in each month, and Ms. McRae-Chalus briefly returned to work on a specific task related to the file that appeared to be going to litigation. In November 2017, Dr. Hutchinson wrote a note saying Ms. McRae-Chalus could attend the workplace for one day, as long as she could work in a private office, and avoid talking as much as possible. However, Ms. McRae-Chalus says the City could not find a private office for her, so she was seated at the same desk she usually worked at before she went on leave, and some of her coworkers approached her and tried to engage her in conversation. She says she had to tell them she was supposed to be resting her voice. She later cited this incident as evidence that the City could not accommodate her.
[40] In September 2018, BMBS decided, based on a recommendation from Manulife, that Ms. McRae-Chalus was eligible for long-term disability benefits [LTD] for a maximum of 24 months from the commencement of her disability. This was later extended to 36 months from the commencement of her disability, or approximately September 2020.
C. Discussions about return to work in 2019
[41] I do not understand the City to dispute that it knew, at all relevant times, that Ms. McRae-Chalus wanted to return to work. The City says it did not consider returning her to work until 2019 because her physicians had not cleared her to return, with or without accommodations. Ms. McRae-Chalus testified that she asked the City’s human resources staff about the possibility of working remotely, starting in 2018. However, in her final argument she did not point to any evidence that her physicians recommended that she return to work, with or without accommodations, before June 2019.
[42] In early 2019, the parties expected Ms. McRae-Chalus’s LTD would expire in September 2019, and the City started considering how it could accommodate her return to work. In January 2019, Ms. Gussenhoven asked Ms. Harris about the possibility of Ms. McRae-Chalus returning to work while working from home and with restrictions on the use of her voice. Ms. Harris then met with Mr. Kushnir and another manager in Ms. McRae-Chalus’s department, to discuss the requirements of the BEC role, and whether the department could accommodate these restrictions. They told Ms. Harris the role required a significant amount of speaking, in person and on the phone, for various reasons. They said each BEC had their own files and needed to understand everything about the file, so they could not carve out non-verbal tasks to give to Ms. McRae-Chalus.
[43] On May 6, 2019, Ms. Harris told Ms. Gussenhoven that Ms. McRae-Chalus would not be able to work remotely. On June 5, 2019, Ms. Gussenhoven emailed Ms. Harris and said there was new medical information indicating Ms. McRae-Chalus could return to work if she was not required to speak. Around this time, Ms. McRae-Chalus’s file was transferred from Ms. Harris to Ms. Rosas, in the City’s human resources office. Ms. Rosas spoke to Mr. Kushnir in June 2019, and he told her the BEC role required speaking. Ms. Rosas passed this on to Ms. Gussenhoven. Ms. Rosas told Ms. Gussenhoven a clerical role may be available, which required less speaking, but she suggested they should wait for more information about whether Ms. McRae-Chalus’s restrictions were permanent, before investigating alternative positions for her. Ms. Rosas followed up with Ms. Gussenhoven, seeking updated medical information, in August and September 2019.
[44] On September 19, 2019, Ms. Gussenhoven sent the City a proposed gradual return to work [GRTW] plan for Ms. McRae-Chalus. The plan said she would work from home to begin with, with no more than 12 hours of work per week, no talking, and “communication 100% digitally, no person-to-person direct interaction physically.”
[45] On the same day, September 19, 2019, Ms. Rosas responded to Ms. Gussenhoven and said Ms. McRae-Chalus’s position as a BEC required speaking and personal interaction. She said the City could look for other types of work for her, but could not guarantee there would be no person-to-person interaction. Ms. Rosas testified that she made this statement based on information from Mr. Kushnir. She testified that she investigated the possibility of accommodating Ms. McRae-Chalus by placing her into a clerical role that required minimal verbal communication, but even that role would likely require some person-to-person interaction. Additionally, the City’s witnesses said the GRTW plan was not acceptable because it contemplated Ms. McRae-Chalus working limited hours without any progression towards full-time hours. They testified that a GRTW plan generally includes ramping up hours over time, so that an employee can eventually return to their previous role. If this is not possible, the City considers placing them in a different role.
[46] Email correspondence between Ms. Rosas and Ms. Gussenhoven shows the City remained open to the possibility of placing Ms. McRae-Chalus in a clerical position that might accommodate her restrictions, after September 2019. Ms. Rosas told Ms. Gussenhoven the City could consider that option if the GRTW plan included a timeline and progression of hours. However, Ms. Gussenhoven did not submit a revised GRTW plan, and the City apparently did not consider it any further until Ms. McRae-Chalus’s LTD was coming to an end, in 2020.
[47] Shortly after Ms. Rosas informed Ms. Gussenhoven that the City could not accommodate the proposed GRTW plan, BMBS decided Ms. McRae-Chalus would be eligible for LTD for up to one more year—until September 2020—under a provision of the benefits plan for employees who were engaged in a rehabilitation program.
[48] In October 2019, Manulife recommended an independent medical examination [IME], to better understand Ms. McRae-Chalus’s condition and the possibility of a return to work. The IME took place in December 2019. The doctor who carried out the IME recommended vocal therapy. Ms. McRae-Chalus had previously tried vocal therapy without much benefit, but she agreed to try it again, starting in 2020.
D. Discussions about return to work in 2020
[49] The City says it did not receive any further information about Ms. McRae-Chalus’s medical condition or the possibility that she could return to work from January to June 2020. During this time Ms. McRae-Chalus was in contact with the Union, BMBS, Manulife, and Ms. Gussenhoven. She told them she was stressed about the risk of losing her income if she ceased to be eligible for LTD in September 2020. Manulife told her it would soon make a decision about whether she would continue to be eligible for LTD.
[50] In July 2020, a BMBS representative told Ms. Harris that Ms. McRae-Chalus’s LTD was likely to expire in September 2020. After that, the City took a more urgent approach to her case. In July and August 2020, Ms. Czerniej and Ms. Rosas met with Mr. Kushnir again to discuss the Planning and Building department’s capacity to accommodate her, and Ms. Rosas repeatedly asked Ms. Gussenhoven for updated information about her restrictions.
[51] The email correspondence between Ms. Rosas and Ms. Gussenhoven shows Ms. Gussenhoven was uncertain about Ms. McRae-Chalus’s restrictions. On July 22, 2020, Ms. Gussenhoven emailed Ms. Rosas and said there was updated medical information about Ms. McRae-Chalus. The email described the information as follows:
It was recommended that initial consideration for gradual return to work include accommodations for no voice use with exception of emergency and working remotely to avoid unnecessary voice use that can result in an office with others.
[52] Ms. Gussenhoven’s email said this seemed to be a permanent restriction, and asked Ms. Rosas if it could be accommodated. In response to follow-up questions from Ms. Rosas, Ms. Gussenhoven said Ms. McRae-Chalus could not use her voice even if she had a microphone or other device.
[53] After receiving this information, Ms. Rosas spoke to Ms. Czerniej, Mr. Kushnir, and the City’s chief building inspector, to discuss Ms. McRae-Chalus’s restrictions and possible accommodations. Ms. Rosas’s notes from their meeting were entered into evidence at the hearing. They show Mr. Kushnir said the BEC role required interacting with the public by phone, and he had concerns about whether Ms. McRae-Chalus could do the job without speaking. In a follow up email, Ms. Rosas asked Mr. Kushnir to provide details about how often a BEC must communicate verbally, and whether some communications could be done in writing.
[54] On August 6, 2020, Ms. Rosas emailed Ms. Gussenhoven and asked if Ms. McRae-Chalus could attend a meeting to talk about her skills, work duties, and her training.
[55] Later in August, Mr. Kushnir responded to Ms. Rosas’s request for further details about the BEC role. He explained why verbal communications were a large part of the job. Ms. Rosas then had a meeting with Ms. Czerniej and the City’s Director of Building and Planning, to discuss options for Ms. McRae-Chalus’s return to work.
[56] On August 21, 2020, Ms. Gussenhoven emailed Ms. Rosas and said, “Manulife’s standpoint is that the only restriction is that [Ms. McRae-Chalus] is unable to speak unless in emergency situations.” The email went on to say Ms. McRae-Chalus was comfortable with meeting in person, and wanted to know if the City was open to her working remotely.
[57] On August 25, 2020, Ms. Rosas requested a redacted copy of the IME report from late 2019, and Ms. Gussenhoven said she could not share it without consent from Manulife and Ms. McRae-Chalus, and anyway it was outdated. Ms. Gussenhoven said she was still waiting for medical information about whether Ms. McRae-Chalus could only work remotely, or if she could work in the office as long as she was not asked to speak.
[58] By September 2, 2020, Manulife recommended that Ms. McRae-Chalus’s eligibility for long-term disability benefits should expire on September 13, 2020. BMBS then notified Ms. McRae-Chalus that her benefits would expire on that date. Ms. McRae-Chalus appealed this decision. After a formal appeal hearing with BMBS directors on October 8, 2020, BMBS approved her continued LTD benefits for the period September 14, 2020, to January 3, 2021.
[59] At some point in August 2020, Manulife asked Dr. Dewji for further information about whether Ms. McRae-Chalus could only work remotely. In response, on or about September 8, 2020, he wrote a note saying:
If [the] City of Burnaby provides appropriate [triple underlined in the original] accommodation that does not require this [patient] to be verbal at work, then there would be no contraindication to her returning. However, this has been attempted multiple times and failed as her workplace did not follow direction. Thus, it is my opinion that she [should] work solely from home instead of returning to her physical work location.
[60] In cross-examination, Ms. McRae-Chalus said she understood Dr. Dewji’s reference to the multiple failed attempts to accommodate her was based on his understanding that she attempted to return to work multiple times, but the City did not accommodate her restrictions. There is no dispute that the only times she returned to work at the office, after August 2017, were when she went to the office for one day at a time in October and November 2017, to work on the file that appeared to be going to litigation.
[61] On September 14, 2020, Ms. McRae-Chalus emailed Ms. Czerniej, providing a copy of Dr. Dewji’s note. Her email said, “the medical recommendations over the last 3 years have been consistent and continue to include 1) working remotely and 2) not being required to speak except in case of emergencies.”
E. RTW meeting
[62] At the RTW meeting on September 18, 2020, Ms. McRae-Chalus met with Ms. Rosas, Ms. Czerniej, and Mr. Kushnir, to discuss a possible return to work. Also present at the meeting were Mr. Campbell, representing Ms. McRae-Chalus on behalf of the Union, and Mr. Chalus, as a support person. The purpose of the meeting was to discuss a possible return to work and the accommodations required by Ms. McRae-Chalus. Ms. Rosas led the meeting. Mr. Chalus recorded the audio of the meeting, without informing the other parties present. A copy of the recording was admitted into evidence at the hearing.
[63] During the meeting, Ms. Rosas said the City understood that Ms. McRae-Chalus had only one restriction—she could not speak except in emergencies—and Mr. Kushnir said that accommodating that restriction in the BEC job would be difficult. Ms. Rosas said the City needed more information about Ms. McRae-Chalus’s condition and restrictions, before it could make a decision about whether she could return to the BEC job, or a different role. The City proposed a new IME, to obtain that information, and offered Ms. McRae-Chalus a temporary clerk job at City Hall, at the BEC rate of pay, pending the IME.
[64] Ms. McRae-Chalus was frustrated by this, as she had already provided ample information about her condition to Manulife and BMBS. She said that in addition to the restriction on her speaking, she was restricted from working outside her home, so she was unable to take the temporary clerk job. She said the City should have known of this restriction, since her doctors had communicated it to Manulife and BMBS repeatedly. Ms. Rosas told her the City did not receive all the information Ms. McRae-Chalus provided to Manulife and BMBS.
[65] Although Mr. Campbell did much of the talking on behalf of Ms. McRae-Chalus, at the RTW meeting, Ms. McRae-Chalus also spoke on her own behalf. In explaining why the City needed more information about her restrictions, Ms. Rosas said that as she understood Ms. McRae-Chalus’s restrictions, Ms. McRae-Chalus should not have been talking during the meeting. Ms. McRae-Chalus responded that she had recently received treatment for her vocal cord dysfunction, namely Botox injections, and these temporarily helped the pain from speaking.
[66] Since Ms. McRae-Chalus’s LTD was apparently coming to an end, and it appeared she would not be able to take the temporary clerk job, Mr. Campbell said it was important to ensure she continued to receive an income. He and Ms. McRae-Chalus both expressed frustration that the City did not attend to this issue sooner, to avoid the risk of an interruption in her income.
[67] At the end of the meeting, Mr. Campbell summarised the take-aways: Ms. McRae-Chalus could not return to work as a clerk at that time; the City would take steps to schedule the IME and consider whether she could return to work as a BEC; and the City would consider whether it could make an exception to its normal policies so that Ms. McRae-Chalus could continue receiving some form of income in the meantime.
[68] Ms. McRae-Chalus testified about her frustration at the meeting. She said she felt isolated by being referred to in the third person, during the meeting, and she was offended when Ms. Czerniej laughed about an email Ms. McRae-Chalus sent. She was shocked that the City’s human resources staff did not seem familiar with the recommendations and restrictions outlined by her physicians, especially the recommendation that she work remotely. She said the meeting had a negative impact on her, and left her with the impression that the City did not want to support her.
F. After the meeting
[69] On September 22, 2020, the Union filed a grievance alleging the City failed to accommodate Ms. McRae-Chalus. The next day, September 23, Ms. Rosas emailed Ms. McRae-Chalus and asked her to sign forms authorising the release of her information and medical records to a third party contractor hired by the City, for the purpose of the IME.
[70] On September 28, 2020, Ms. McRae-Chalus sent Ms. Rosas a letter from Dr. Hutchinson which included the following 12 recommendations for Ms. McRae-Chalus’s return to work:
1. She should not be required to speak except in emergencies;
2. Her workplace should have updated air circulation;
3. She should have a private office to limit the possibility of interruption or in person interaction with others;
4. She should not be placed in a position to be at risk of contagions from others;
5. She should have a low stress environment, as stress has an effect on her condition;
6. She should have private washroom facilities to limit interactions with others;
7. She should have private or separate access to the workplace to limit interactions with others;
8. She should have flexible hours to reduce travel time, to limit exposure to environmental irritants;
9. She should have micro breaks as needed;
10. She should have time for voice exercises throughout the day;
11. She should not work in an open environment; and
12. “In the event that items 2-11 cannot be satisfied in the physical workplace, exclusively working from home (remote working is a satisfactory alternative to those medical recommendations.)”
[71] In October 2020, the City arranged for a formal job demands analysis for the BEC role, by an occupational therapist, to help the City decide whether it could accommodate Ms. McRae-Chalus’s restrictions in that role. The City received the job demands analysis report in December 2020. Among other things, it said verbal communication was an important requirement of the job.
[72] In November 2020, Ms. McRae-Chalus decided to contact Mayor Hurley. He had an open door policy for City residents and employees who had concerns they wanted to discuss. Ms. McRae-Chalus contacted his office and set up a meeting to discuss her concerns about the City’s accommodation process. Mr. Turpin attended the meeting, which took place on December 3, 2020. Mayor Hurley told Ms. McRae-Chalus that he and Mr. Turpin would look into her concerns. Ms. McRae-Chalus testified that this was meaningful to her, and she felt heard. However, it does not appear that the Mayor’s office or Mr. Turpin had any further involvement in events related to Ms. McRae-Chalus’s human rights complaint.
[73] On December 15, 2020, Ms. McRae-Chalus filed this human rights complaint.
[74] In December 2020, the Union and the City made submissions to Mr. Chu about the accommodation grievance. This was a normal part of the grievance process, when the City and Union are unable to agree on how to resolve a grievance. Part of Mr. Chu’s role as City Manager involved hearing submissions from the Union and the City’s representatives, and then providing a written decision about the grievance. Under the collective agreement, the Union and the City each have a right to proceed to arbitration, if they are unsatisfied with the City Manager’s decision.
[75] On December 30, 2020, Mr. Chu issued his decision about the grievance. He found the City had not failed to accommodate Ms. McRae-Chalus and had not engaged in abusive or demeaning behaviour towards her during the accommodation process. He said the accommodation process should continue, and Ms. McRae-Chalus should participate in a medical review to confirm her restrictions and accommodation options. Mr. Chu ‘s letter said her LTD was set to expire on January 4, 2021, but he had decided to extend it for a further two weeks, while the City reviewed accommodation options. The City later placed her on paid administrative leave, at 100% of her normal salary, pending further discussion about the accommodation grievance.
[76] The City continued to investigate options for accommodating Ms. McRae-Chalus, after Mr. Chu issued his decision. In early January 2021, Ms. Rosas, Ms. Czerniej, and Mr. Kushnir discussed the most recent medical information about her restrictions and whether the Building and Planning department could offer a position that accommodated those restrictions. In an email to Ms. Rosas on January 7, 2021, Mr. Kushnir identified roles within the department that could be done remotely and/or without speaking. He noted that all these roles would require changes to the department’s normal processes, and even with those changes, the department might not be able to offer Ms. McRae-Chalus full-time employment, in light of her restrictions.
[77] Around this time, Ms. McRae-Chalus’s health worsened. She testified that this was due to stress caused by the City’s conduct, including at the RTW meeting, and by Mr. Chu’s decision.
[78] On January 8, 2021, in a letter co-signed by Dr. Dewji and Dr. Hutchinson, they reported that Ms. McRae-Chalus’s condition had worsened and her prognosis for returning to work in the foreseeable future was poor.
[79] On January 15, 2021, Ms. McRae-Chalus filed an amendment to her human rights complaint, regarding the accommodation process.
[80] The parties later agreed to a new IME for Ms. McRae-Chalus, which took place in September 2021. Based on a review of her medical documents, the physician who carried out the IME found Ms. McRae-Chalus was totally and permanently disabled from working in any occupation, as of January 12, 2021. The City then reinstated her LTD benefits. The Union withdrew the accommodation grievance in or around November 2021.
IV ANALYSIS AND DECISION
[81] Section 13 of the Human Rights Code prohibits discrimination against a person regarding employment or any term or condition of employment because of the person’s physical disability.
[82] To prove her case, Ms. McRae-Chalus must establish 1) she had a disability; 2) she experienced an adverse impact in her employment; and 3) her disability was a factor in the adverse impact: Moore v. British Columbia (Education), 2012 SCC 61 at para. 33. Under the Moore framework, the issues I need to decide are:
a. Did Ms. McRae-Chalus have a disability, between September 2019 and January 2021?
b. Did she experience an adverse impact in her employment, during this time period?
c. If so, was her disability a factor in the adverse impact?
[83] If Ms. McRae-Chalus proves these elements of her case, the burden shifts to the City to justify the impact as a bona fide occupational requirement. If the City proves the impact was justified, there is no discrimination.
[84] I will first address the elements of Ms. McRae-Chalus’s case, before turning to the City’s justification defence.
A. Did Ms. McRae-Chalus have a disability within the meaning of the Code?
[85] Ms. McRae-Chalus says her vocal cord dysfunction was a disability, within the meaning of the Human Rights Code. She says the evidence shows this condition affected her functioning, especially her ability to speak. She also argues that the City has already accepted that she has a disability, by putting her on disability leave and providing disability benefits, so the City cannot now argue, in response to her human rights complaint, that she does not have a disability.
[86] The City says Ms. McRae-Chalus has not proven she had a physical disability during the period of her human rights complaint. Since I did not admit the medical records for the truth of their contents, the City says the only admissible evidence relevant to this issue is the testimony of Ms. McRae-Chalus and Mr. Chalus, but this evidence is not sufficient to prove she had a disability, within the meaning of the Code, on a balance of probabilities.
[87] The Code does not define “disability”. As with all terms in human rights legislation, it is interpreted liberally in a manner that best achieves the broad public purposes of the Code: BC Human Rights Tribunal v. Schrenk, 2017 SCC 62 at para. 31. In Granovsky v. Canada (Minister of Employment and Immigration), [2000] 1 SCR 7, the Supreme Court of Canada recognized that disability “may grow more or less severe as time goes on”: para. 27. The concept of disability, viewed through a lens of equality, must “accommodate a multiplicity of impairments, both physical and mental, overlaid on a range of functional limitations, real or perceived, interwoven with recognition that in many important aspects of life the so-called ‘disabled’ individual may not be impaired or limited in any way at all”: Granovsky at para. 29.
[88] To decide whether a specific medical condition is a disability within the meaning of the Human Rights Code, the Tribunal generally considers factors including:
a. the degree of impairment and functional limitations associated with the condition; and/or
b. the degree of severity, permanence, and persistence of the condition; and/or
c. the social perception and response to that condition, such as stigma, taking into account human rights principles.
Morris v. BC Rail, 2003 BCHRT 14 at paras. 211 and 214; Québec (Commission des droits de la personne et des droits de la jeunesse) v. Montréal (City); Québec (Commission des droits de la personne et des droits de la jeunesse) v. Boisbriand (City), 2000 SCC 27 at paras. 39 and 76-77.
[89] For the purposes of this decision, I find Ms. McRae-Chalus’s vocal cord dysfunction was a disability within the meaning of the Code. I have not considered the medical records created by Ms. McRae-Chalus’s doctors and health providers, in deciding this issue. I have considered the issue based mainly on Ms. McRae-Chalus’s own testimony, and that of Mr. Chalus.
[90] The City suggests that calling Ms. McRae-Chalus’s condition “vocal cord dysfunction” indicates a medical diagnosis, which has not been established. Although I refer to her vocal cord dysfunction in this decision, I make no finding about whether she has been diagnosed with any particular condition. Rather, I use this term to indicate the symptoms Ms. McRae-Chalus describes, based on her own experience of her condition.
[91] Ms. McRae-Chalus testified that, as a result of her condition, it is painful for her to speak, and she has a constant feeling of tension in her throat, which she described as like having a razor against her vocal cords. She said she always feels like she has a lump in her throat, and speaking normally causes her physical pain. She says her voice has been impaired since 2017, and it often sounds “gravelly” (i.e. like gravel), as though she was a long-time smoker or she has been abusing her voice. She says she has more pain if she speaks slowly, so she tends to speak too fast. She says the tension in her vocal cords causes tension in other parts of her facial area, including her teeth, forehead, and neck, which leads to additional pain from headaches. She testified that she received treatment for her vocal cord issues, namely Botox injections, and these temporarily helped the pain from speaking, but they had negative side effects, including pain at the injection sites. She participated in vocal therapy with Ms. Zelazny, the speech language pathologist, but she says she still has pain from speaking, despite the therapy.
[92] The City says Ms. McRae-Chalus’s credibility must be considered carefully, in light of her animosity towards the City, her unreasonable beliefs about the intentions and conduct of City staff, and the inconsistency between her appeal of the termination of her LTD in September 2020, in which she claimed she was unable to work in any occupation, and her assertion that she could have returned to work with certain accommodations.
[93] I agree with the City that some of Ms. McRae-Chalus’s statements at the hearing reflect unreasonable beliefs about the intentions of City staff. But even if, as the City argues, she cannot be objective about how the City treated her, I do not find this is relevant to the credibility of her evidence about her disability. The evidence shows Ms. McRae-Chalus has been consistent in describing the symptoms of her condition since 2017, and continuing through the period of her complaint, in 2019 and 2020.
[94] I do not accept that the apparent inconsistency between Ms. McRae-Chalus’s claim for disability benefits and her requests for accommodations in her employment affects the credibility of her testimony about her disability. I understand the City’s argument that her claim for LTD, on the basis that she could not work in any occupation, was not consistent with her position that she could return to the BEC job, if she had appropriate accommodations. However, in circumstances where an employee is facing both the end of their disability benefits and difficulties in getting the accommodations they believe they need to return to work, it is not contradictory or surprising that the employee would take all possible steps to try to ensure they have some form of income.
[95] I find that Ms. McRae-Chalus’s testimony about how her vocal cord condition affects her is sufficient to prove the condition is involuntary and has a degree of permanence. I accept, based on her testimony, that her condition has caused her to experience pain from speaking since 2017, and affected her ability to engage in verbal communications in the workplace.
[96] Even so, the City says, Ms. McRae-Chalus’s evidence is essentially that it was uncomfortable for her to speak at times, but she could do so when she chose to. The City says this is insufficient to support a finding that she had a disability.
[97] Ms. McRae-Chalus acknowledged in cross-examination that she was able to shop, travel, and go out for dinner, during the period of her complaint, and she was not restricted from interacting with other people in person every day, or in every context. Additionally, there is no dispute that she was able to speak during the RTW meeting, although she says that was because she had recently received treatment that provided temporary relief from the pain from speaking.
[98] The question of how Ms. McRae-Chalus’s pain affected her is complicated. There is evidence that Ms. McRae-Chalus could still speak when she wanted to, in 2019 and 2020, even if she received medical advice to restrict her speaking. As the City points out, she continued to engage in many of her normal activities during the period of her complaint. Considering the evidence that Ms. McRae-Chalus could speak when she chose to, it appears her pain from speaking was not persistently debilitating. But this is not required, to prove a disability within the meaning of the Human Rights Code. I accept that she experienced the pain as severe, and that it had significant impacts on her life, even if it did not prevent her from engaging in some of her normal activities.
[99] While I have not considered the observations or opinions of Ms. McRae-Chalus’s doctors and health providers, I find I can consider the fact that she sought medical assistance and treatment regarding her vocal cord dysfunction, on many occasions. This finding is not determinative, but it is relevant to how she responded to the pain she said she was experiencing. Her efforts to find a solution, over many years, reflect the seriousness with which she treated her pain.
[100] There is no dispute that Ms. McRae-Chalus was on an approved leave of work, and in receipt of disability benefits, from 2017 to 2021, based on a condition that affected her ability to speak. While being on disability leave may be evidence of a disability, under the Moore test, the burden remains on Ms. McRae-Chalus to prove she had a disability. Even if the fact that she went on long-term disability leave and received benefits is not determinative of whether she had a disability, within the meaning of the Code, it is still relevant to that question. It shows that her condition affected her ability to work, over a lengthy period.
[101] I am satisfied that I can determine this issue without medical or expert evidence. Although Ms. McRae-Chalus’s pain did not completely prevent her from speaking, it was severe enough that it impaired her ability to function normally, on a long-term basis. I find her vocal cord dysfunction was a disability within the meaning of the Human Rights Code, between September 2019 and January 2021. She has established the first element of the Moore test.
B. Adverse impact and connection to disability
[102] Ms. McRae-Chalus says she experienced an adverse impact on her employment by being excluded from work. She also says the City’s accommodation process itself had an adverse impact on her, as she was excluded from the process and treated as an object of the process rather than a participant in it. In particular, her complaint alleged that remarks made by Ms. Rosas during the RTW meeting had an adverse impact on her. However, Ms. McRae-Chalus did not pursue this argument in her final submissions.
[103] I will address Ms. McRae-Chalus’s allegations about the accommodation process below, in my analysis of whether the City has established a defence based on a bona fide occupational requirement. Since Ms. McRae-Chalus did not argue, in her final submissions, that Ms. Rosas’s remarks at the RTW meeting were a distinct form of discrimination, I find it appropriate to address them within the context of my decision about accommodation, rather than as a separate allegation of discrimination. In this section I focus on whether Ms. McRae-Chalus has established that her exclusion from work was an adverse impact on her employment and whether her disability was connected to that adverse impact.
[104] The City says that between September 2019 and January 2021, there were only two brief periods when Ms. McRae-Chalus’s doctor had cleared her to return to work, in September 2019 and again in September 2020, both times subject to restrictions. The City says that at all other times Ms. McRae-Chalus cannot establish an adverse impact because she was not fit to work, she was on a medical leave approved by the City, and she was in receipt of disability benefits. The City relies on Mahowich v. Westgate Resorts and others (No. 2), 2009 BCHRT 247, where the Tribunal found an employer did not treat an employee adversely by refusing to allow her to work at times when the employee was not medically cleared to return to work, while the employee was on an approved leave and in receipt of WorkSafeBC benefits.
[105] I find Ms. McRae-Chalus experienced an adverse impact on her employment, in which her disability was a factor. She took an extended leave from work for reasons related to the pain from her vocal cord dysfunction, which affected her ability to speak. Although she received disability benefits throughout the period of this complaint, I accept that the fact that she was unable to work, for an extended period of time, was an adverse impact on her employment.
[106] I am not persuaded that the decision in Mahowich means Ms. McRae-Chalus cannot establish the second step of the Moore test because I am not satisfied that Ms. McRae-Chalus was only medically cleared to work at brief points in time, in September 2019 and September 2020, as the City argues. As I describe below, in my analysis of whether the City fulfilled its duty to reasonably accommodate her, the medical information relied on by the City for the position that Ms. McRae-Chalus was not fit to return to work after September 2019, when considered as a whole, does not support the City’s position. The medical information relied on by the City says she could not return to work without accommodations, after September 2019. It does not say she could not return at all.
[107] Additionally, I note that Mahowich was decided before Moore, and said the complainant had to prove she “suffered adverse treatment in her employment” (at para. 61 of Mahowich), whereas Moore says the question is whether a complainant “experienced an adverse impact” with respect to employment. An employee’s treatment by their employer may be relevant to whether they experienced an adverse impact, but even when an employee’s absence from work is through no fault of the employer, this does not mean they cannot establish that they experienced an adverse impact on their employment. I find Ms. McRae-Chalus experienced an adverse impact as a result of being on an extended leave from her employment. This meant she could not gain experience, advance in her career, or enjoy all the well-established benefits of employment for her identity, self-worth, and emotional well-being.
[108] In any event, I do not understand the City to deny that Ms. McRae-Chalus experienced an adverse impact on her employment in September 2019 and September 2020, when her doctor cleared her to return to work with restrictions. As I understand the City’s position, it acknowledges that if Ms. McRae-Chalus was unable to work due to a disability at those times, the City’s duty to accommodate her was engaged.
[109] I find Ms. McRae-Chalus’s disability was a factor in her going on leave from her employment, since her disability affected her ability to speak, and she went on leave for reasons related to her restrictions on speaking. This was an adverse impact on her employment. She has established the elements of her case under the Moore test.
C. Bona fide occupational requirement
[110] Since I have found Ms. McRae-Chalus experienced an adverse impact, in which her disability was a factor, as a result of being unable to work, the onus shifts to the City to establish the impact was justified as a bona fide occupational requirement, under s. 13(4) of the Human Rights Code. If the City establishes a bona fide occupational requirement defence, then there is no contravention of the Code.
[111] To prove a bona fide occupational requirement, an employer must establish (1) it applied a standard that was adopted for a purpose rationally connected to the performance of the job; (2) the standard was adopted in a good faith belief it was necessary to fulfill that purpose; and (3) the standard was reasonably necessary, in the sense that the employer could not accommodate the employee without undue hardship: British Columbia (Public Service Employee Relations Commission) v. BCGSEU, [1999] 3 SCR 3 [Meiorin] at para. 54. Under the Meiorin framework, the issues I need to decide are:
a. Did the City apply a standard that was adopted for a purpose rationally connected to the performance of Ms. McRae-Chalus’s job?
b. Was the standard adopted in a good faith belief that it was necessary to fulfill that purpose?
c. Was the standard reasonably necessary to the accomplishment of that valid purpose, in the sense that the City could not accommodate Ms. McRae-Chalus without undue hardship?
[112] I will address each of these issues in turn.
a. Did the City apply a standard that was rationally connected to the performance of Ms. McRae-Chalus’s job?
[113] In its final argument, the City says it applied a standard requiring BEC’s to be medically fit and able to engage in a substantial amount of verbal communication, and to work outside of their homes at least part of the time, in order to perform their assigned duties. The City says this standard was rationally connected to the role of a BEC.
[114] Ms. McRae-Chalus says the City did not clearly articulate the standard it relied on. She says the City’s witnesses described the requirements of the BEC role in different ways, in their testimony, and did not present a consistent or precise standard. She says the standard is unclear because the City’s witnesses variously described the requirements of the role as including a frequent need to speak or communicate verbally, a requirement for in-person interaction, attending at the City’s office and the locations of alleged bylaw infractions, and conflict resolution skills.
[115] In my view, the City’s description of the standard it relies on, in its final argument, is sufficiently clear and precise. All the requirements of the BEC role listed by the City’s witnesses are consistent with the standard articulated by the City in its final argument, namely a standard requiring BEC’s to able to engage in verbal communication, and to work outside of their homes at least part of the time.
[116] I accept that the City’s purpose, in adopting this standard for the BEC role, was to ensure BEC’s could perform their duties. There was ample evidence at the hearing showing that BEC’s were often required to engage in verbal communications, as part of their job. There was also evidence that they needed to work outside their homes at times, particularly during inspections at the sites of suspected or reported bylaw violations. The purpose of the standard was to ensure the efficient performance of the job.
[117] The City has established the first element of the Meiorin test.
b. Was the standard adopted in good faith?
[118] The City says it adopted its standard requirements for the BEC job in good faith. Ms. McRae-Chalus says the City cannot establish good faith because, after February 2019, it adopted an inflexible position that she could not work as a BEC if she could not speak or work outside her home. She says these requirements were treated as non-negotiable, whereas good faith requires a willingness by the employer to consider whether workplace standards can be applied flexibly, or whether valid purposes can be achieved by different means.
[119] I am not persuaded that Ms. McRae-Chalus’s arguments mean the City cannot prove it adopted its standards in good faith. The evidence shows the City considered whether the requirements for BEC’s to engage in verbal communications and to occasionally work outside their homes were necessary, and whether the public—including property owners and other stakeholders who needed to communicate with BEC’s—could be served just as well by relaxing or changing these requirements.
[120] There is no evidence that the City did not have a good faith motivation for requiring BEC’s to engage in verbal communication, and to work outside of their homes at least part of the time. I will address Ms. McRae-Chalus’s argument about whether the City reasonably applied this standard at the next step of the Meiorin analysis, but at this stage the question is only whether the City adopted it in good faith. I accept that the City believed in good faith that its requirements for BEC’s were necessary for the performance of the job. The City has established the second element of the Meiorin test.
c. Did the City fulfill its duty to accommodate Ms. McRae-Chalus?
[121] The City says it accommodated Ms. McRae-Chalus while she was unable to work by allowing her to go on leave and providing her with employment and disability benefits. At times when it had medical information saying she could return to work with restrictions, the City says it took all reasonable and practical steps to accommodate her.
[122] Ms. McRae-Chalus says the accommodation process was unreasonable and harmful to her. In general, she says the City did not make a timely and good faith effort to assess her ability to return to work, and did not take its obligation to accommodate her seriously. She says the City did not engage with her collaboratively and respectfully in the accommodation process, especially at the RTW meeting.
[123] For the following reasons I find the City satisfied its duty to reasonably accommodate Ms. McRae-Chalus. I will first set out the relevant legal principles about the duty to accommodate, and then describe my findings about how the City fulfilled its duty.
i. General principles about accommodation
[124] 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 employées de techniques professionnelles et de bureau d’Hydro-Québec, section locale 2000 (SCFP-FTQ), 2008 SCC 43 at para. 14. This purpose informs the scope and content of the duty to accommodate, expressed through the interrelated 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 at para. 25.
[125] The concept of “reasonable accommodation” requires employers to take reasonable and practical steps to assess whether working conditions can be changed to allow employees to do their work and, if not, whether there is other work that they could do: Hydro-Québec at para. 17. It is an exercise in common sense and flexibility, in which both the process and substance of the accommodation are relevant: Meiorin; Kelly v. University of British Columbia (No. 3),2012 BCHRT 32 at para. 527.
[126] 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. Employers are required to consider options that may result in some hardship: Council of Canadians with Disabilities v. VIA Rail Canada Inc., 2007 SCC 15 at para. 122. It is only when the hardship becomes “undue” that the duty ends. What is reasonable, and what hardship is undue, will vary “according to the characteristics of each enterprise, the specific needs of each employee, and the specific circumstances in which the decision is to be made”: McGill University Health Centre (Montreal General Hospital) v. Syndicat des employés de l’Hôpital général de Montréal, 2007 SCC 4 at para. 22.
[127] In Thanh v. BC Ministry of Public Safety and Solicitor General, 2020 BCHRT 15, the Tribunal explained:
There may be a point at which it would be unreasonable to pursue an accommodation option. This may arise in circumstances where measures have little or no likelihood of success. That an accommodation option is “possible” does not mean that it must be done: Dunkley [v. UBC and another, 2015 BCHRT 100] at para. 423. In cases where good faith and reasonable inquiries have been made, that lead to a conclusion of undue hardship, then the fact that there might be further inquiries which could be made is not relevant: Dunkley at para. 423.
[128] In assessing the City’s accommodation process, I do not assess each individual incident in isolation from the bigger picture. Rather, I take a global approach, considering the entire history of the matter: Hydro Quebec at para. 21; Buchner v. Emergency and Health Services Commission (No. 2),2008 BCHRT 317 at paras. 401-404. I consider the City’s efforts to accommodate Ms. McRae-Chalus against a standard of reasonableness, not perfection: Central Okanagan School District No. 23 v. Renaud, [1992] 2 SCR 970 [Renaud]; Klewchuk v. City of Burnaby (No. 6), 2022 BCHRT 29 at para. 425.
[129] Accommodation should be a collaborative process, requiring active participation and cooperation by the employee, employer, and union. As the employee, Ms. McRae-Chalus’s obligation in the accommodation process was to bring forward the “facts relating to discrimination”, to facilitate implementation of reasonable proposals, and to accept reasonable accommodation: Renaud.
ii. Findings about the accommodation process
1. August 2017 to September 2019
[130] Although Ms. McRae-Chalus’s human rights complaint only covers the period from September 2019 to January 2021, the parties gave evidence about events going back to Ms. McRae-Chalus initially going on leave, in August 2017. I address that evidence here, as it is relevant to some of my findings about events within the temporal scope of the complaint.
[131] The evidence before me does not support that Ms. McRae-Chalus was able to return to work, with or without accommodations, between November 2017 and June 2019. Ms. McRae-Chalus says she requested to return to work during this time, and the City refused to consider accommodating her, but she does not point to any evidence that her physicians approved a return to work, even with accommodations, before June 2019. Even if I had considered Ms. McRae-Chalus’s medical records for the truth of their contents, the records she relies on do not suggest that her physicians would have cleared her to return to work during this period. In terms of the information available to the City, there is evidence that Ms. Gussenhoven advised the City’s human resources staff on several occasions that Ms. McRae-Chalus’s physicians had not cleared her to return to work, including in December 2017, January 2018, August 2018, January 2019, and May 2019. Although Ms. McRae-Chalus wanted to return to work, it is understandable that the City did not consider this when there was medical information that she was not fit to return.
[132] In June 2019, Ms. Gussenhoven told Ms. Harris there was now medical information saying Ms. McRae-Chalus could return to work if she was not required to speak. By late June 2019, Ms. Rosas spoke to Mr. Kushnir about whether she could return to her role as a BEC, or another position in the same department, with this restriction. Mr. Kushnir advised that they could not accommodate her in the BEC job, and Ms. Rosas told Ms. Gussenhoven the City preferred to wait for more information about her restrictions, before searching for alternative positions. Ms. Rosas followed up with Ms. Gussenhoven in August 2019, and Ms. Gussenhoven provided the GRTW plan in September 2019.
[133] I do not accept the City’s submission that it only had a duty to accommodate Ms. McRae-Chalus at specific points in time, in September 2019 and September 2020, because she was not medically cleared to return to work at all other times relevant to the complaint. The evidence relied on by the City to establish that she was not medically cleared to work at other times includes records from Dr. Hutchinson and Dr. Dewji, where they connect their opinions to their understanding of the accommodations offered by the City. For example, the chart note from Dr. Hutchinson dated August 27, 2019, says “no RTW at this point as far as I can see” but then goes on to say what accommodations Ms. McRae-Chalus would need if she did return to work; the January 17, 2020, report from Dr. Hutchinson to Manulife says Ms. McRae-Chalus was not fit to return to work but goes on to say, “Any attempts in part to have accommodations for any RTW have been declined or denied by employer”.
[134] I am not considering the doctors’ opinions for the truth of their contents, out of fairness to the City. But this does not mean the City can selectively rely on the parts of the opinions that support its case, without addressing the information in the physicians’ records that suggests Ms. McRae-Chalus could have returned to work, if certain accommodations were in place.
[135] Despite the City’s position that it had no duty to accommodate Ms. McRae-Chalus except in September 2019 and September 2020, the City was considering how it could accommodate her by early 2019, when Ms. Harris spoke to Mr. Kushnir about whether Ms. McRae-Chalus’s department could accommodate her working from home and her restrictions on speaking. In other words, the City had started investigating whether she could return to her job as a BEC, even before she was cleared to return. The City did not have full or final knowledge about her disability-related restrictions but it began taking steps to determine whether it could accommodate her. This demonstrates a degree of good faith in the City’s accommodation process, before the time period covered by Ms. McRae-Chalus’s human rights complaint.
2. September 2019 to June 2020
[136] The first relevant incident within the temporal scope of the complaint was the City’s rejection of the September 2019 GRTW plan proposed by Ms. Gussenhoven. I find this incident does not mean the City did not fulfill its duty to accommodate her.
[137] The GRTW plan provided that Ms. McRae-Chalus could not talk at all, and could have no physical interaction with anyone, in any circumstances. The plan also said it was unknown if or when she could return to work without restrictions. By September 2019 the City had already considered whether the BEC role could be done without speaking, in early 2019 and again in June 2019, and concluded that it could not. The City says it would have been undue hardship to return Ms. McRae-Chalus to the BEC job, while accommodating her no-speaking restriction, in September 2019. I agree. The City’s evidence, particularly the testimony of Mr. Kushnir, establishes that the job required extensive communications with co-workers and stakeholders. I accept that this communication, especially with stakeholders who were members of the public, could not always be done in writing and remotely.
[138] BEC’s could not always choose how they would communicate with members of the public. Property owners and other members of the public were a BEC’s “customers”, and could not always communicate in writing. In her testimony, Ms. McRae-Chalus acknowledged that members of the public who were involved in investigations of bylaw violations sometimes had to communicate verbally, for various reasons. She also acknowledged that, when she worked as a BEC, she was expected to speak very frequently. Additionally, the BEC job required occasional attendance and meetings at sites where bylaw violations were reported or suspected. This would often lead to further follow-up with City staff and stakeholders, much of which was done verbally.
[139] BEC’s could not always work remotely, since they sometimes had to go to the sites of reported bylaw violations. In her final argument, Ms. McRae-Chalus said Mr. Kushnir confirmed, in his testimony, that other BEC’s employed by the City worked remotely during the period of her complaint, including during the COVID pandemic. I disagree. Mr. Kushnir’s evidence was that BEC’s never worked fully remotely. He said all BEC’s were required to be in the office at least once a week during the pandemic, and they continued to attend in-person site inspections as necessary. He was firm about this under cross-examination. I do not accept that, just because BEC’s worked partly remotely during the pandemic, this means Ms. McRae-Chalus could have done the job fully remotely, while working from home.
[140] I accept that it was not feasible to carve out parts of the BEC role that did not require verbal communications or in-person interactions, because it was important for the BEC responsible for a file to know everything relevant about the file. Returning Ms. McRae-Chalus to the BEC role, without speaking or in-person interactions, would have required fundamentally changing the nature of the job. The duty to accommodate does not require this.
[141] I acknowledge there were additional steps the City could have taken, in 2019, to investigate whether it could accommodate Ms. McRae-Chalus’s restriction on speaking. In 2020, the City obtained a formal job demands analysis that addressed this issue. The City did not explain, in its final argument, why it could not have done so sooner. However, nothing turns on when the City took this step, as I have found the City’s position on whether it could accommodate Ms. McRae-Chalus’s restrictions was reasonable.
[142] Further inquiries into how to accommodate Ms. McRae-Chalus may have been warranted if there was evidence the restriction on speaking was permanent—and in fact the City did undertake further inquiries into the possibility that the BEC role or other jobs in her department could be done without speaking, in 2020, after the City received medical information confirming the restriction on speaking was permanent. But in circumstances where the GRTW plan would have required fundamental changes to Ms. McRae-Chalus’s normal duties as a BEC, it was reasonable for the City to decline to make those changes, especially considering that the medical information was unclear about whether her restrictions were permanent.
[143] In any event, while the City said it could not accommodate Ms. McRae-Chalus’s return to the BEC role without speaking, in September 2019, it did not refuse to consider returning her to work at all. Ms. Rosas’s email correspondence with Ms. Gussenhoven shows the City was open to the possibility of returning her to a different job at that time.
[144] Between October 2019 and June 2020, it appears the City made no further inquiries about accommodating Ms. McRae-Chalus. I understand this was because Manulife was in the process of obtaining an IME, and then Ms. McRae-Chalus was participating in vocal therapy. It appears the onset of the COVID pandemic, in early 2020, may have also contributed to delays in the City’s accommodation process.
[145] During this period, Ms. McRae-Chalus was frustrated with what she perceived as a lack of urgency about her case. I understand this frustration, and I agree that the City’s conduct during this period did not reflect any sense of urgency. However, considering the fact that steps were being taken that could potentially clarify her restrictions and support her return to work, in late 2019 and early 2020, and considering the onset of the COVID pandemic, the City’s conduct from September 2019 to mid-2020 was not inconsistent with its duty to accommodate her.
3. July 2020 until RTW meeting
[146] In the months leading up to the RTW meeting, after learning that Ms. McRae-Chalus’s LTD was likely to expire soon, the City took a more urgent approach to her case. Ms. Czerniej and Ms. Rosas met with Mr. Kushnir again to discuss the department’s capacity to accommodate her, and Ms. Rosas repeatedly asked Ms. Gussenhoven for updated information about her restrictions. Their email correspondence shows Ms. Gussenhoven was uncertain about the restrictions until September 15, 2020. Her conclusion that Ms. McRae-Chalus had one permanent restriction—“Should not be required to speak except for emergency situations”—was apparently based on information from Manulife and Dr. Dewji’s note from September 8, 2020, saying she could return to work if she was not required to be verbal. The City received that note around the time of the RTW meeting.
[147] Although the City made efforts to try to get certainty about Ms. McRae-Chalus’s restrictions from Ms. Gussenhoven and BMBS, starting in July 2020, it appears the City did not contact Ms. McRae-Chalus herself. The City received information about her indirectly, through Ms. Gussenhoven. While I understand why the City preferred to receive information about an employee’s medical restrictions through a third party, to protect the employee’s confidentiality, I also understand how this made Ms. McRae-Chalus feel disconnected from the accommodation process. However, there is no evidence that anything would have been different if the City contacted her directly. What the City needed most was information from her medical providers, not from Ms. McRae-Chalus herself.
[148] I do not accept Ms. McRae-Chalus’s argument that the City’s conduct in and around the RTW meeting reflected a discriminatory approach to her case. The meeting was a necessary part of the accommodation process, to give all parties a chance to discuss options and weigh in on the next steps in the process.
[149] I find the City’s conduct in the RTW meeting was reasonable. I have listened to the recording of the meeting in full. The tone used by City staff was professional. Ms. McRae-Chalus objects to being referred to in the third person, and I agree this was not ideal, considering she was in the room. But the City employees at the meeting did not refer to her in the third person in a repetitive or abusive way. It appears that when they did so, they were talking to Mr. Campbell.
[150] Ms. McRae-Chalus says the City’s employees, especially Ms. Czerniej, seemed to laugh at her during the meeting. Ms. Czerniej and Ms. Rosas did laugh at times during the meeting, as did Mr. Campbell. But in the context of the meeting, the laughter appeared to reflect a nervous uncertainty about how to respond to information City staff were receiving for the first time, and an attempt to release the tension in a serious meeting. There is nothing in the recording of the meeting that indicates it was mocking or dismissive.
[151] The City’s approach to accommodating Ms. McRae-Chalus, at the meeting, was practical. Contrary to her argument, City staff were open to input from her and the Union, about her medical condition and her restrictions and the next steps in the accommodation process. The City’s plan to try to get more medical information, and continue exploring options for accommodation, was reasonable in light of the information available to the City.
[152] In her closing argument, Ms. McRae-Chalus did not pursue her allegation that Ms. Rosas’s comments during the meeting were offensive or that they were evidence of intentional discrimination. She says she experienced the meeting as silencing and dehumanizing, but she does not refer to anything Ms. Rosas said in particular. In the absence of any argument about this issue specifically, I find Ms. Rosas’s comments were not discriminatory.
[153] There is no dispute that Ms. Rosas made the statement alleged in Ms. McRae-Chalus’s human rights complaint: “Your medical recommendations say that you shouldn’t be required to talk except for emergency situations, and you’re talking now, and I don’t think this is an emergency.” I understand Ms. McRae-Chalus perceived the comment as hurtful, and Ms. Rosas could have possibly phrased it differently. However, in the context of the meeting, it was reasonable for Ms. Rosas to have questions about Ms. McRae-Chalus’s restrictions. She did not ask those questions in a dismissive, disrespectful, or inappropriate way. When Ms. McRae-Chalus explained that she was able to speak in the meeting because she recently had Botox treatment, Ms. Rosas did not question this or persist in saying Ms. McRae-Chalus should not be speaking.
[154] In summary, the evidence about the RTW meeting does not support Ms. McRae-Chalus’s argument that the City failed to accommodate her and treated her disrespectfully during the accommodation process, or that the City did not reasonably respond to information she provided.
4. After the RTW meeting
[155] After the RTW meeting, the City took additional steps to fulfill its duty to accommodate Ms. McRae-Chalus. Her LTD was extended to January 2021. I have no doubt that the last-minute nature of the decisions about extending her LTD—in 2019 and 2020—were stressful for her, as they would be for anyone. Some of this stress could likely have been avoided if the City started taking a more proactive, urgent approach to investigating her restrictions before it found out her LTD was probably going to expire. But ultimately she did not experience any significant interruption in her income, during the period of her complaint.
[156] It was reasonable for the City to request a new IME, at the RTW meeting, and to request Ms. McRae-Chalus’s consent to release her medical information for the purpose of the IME. The medical information received by the City at the time of the RTW meeting still left questions about the nature of her restrictions and how they could be accommodated, considering that she was able to speak at the meeting. The need for further information was reinforced by the letter from Dr. Hutchinson on September 28, 2020, which identified a series of detailed restrictions. It is difficult to reconcile Dr. Hutchinson’s letter with Dr. Dewji’s note from September 8, 2020, which seems to say Ms. McRae-Chalus could return to work in the office if she did not have to speak. It is understandable that the City had questions about this.
[157] I note that even if the City had access to all the same information that Manulife and BMBS had about Ms. McRae-Chalus’s medical condition, there were still reasonable questions about the nature of her restrictions and how they could be accommodated. Ms. McRae-Chalus’s submissions focus on the City’s position that it did not know she was restricted from working outside her home, even though Dr. Hutchinson had recommended this, in her letters to Manulife. But it appears the no-speaking restriction was a more significant obstacle to Ms. McRae-Chalus’s return to work, in some capacity. The medical information she provided to BMBS and Manulife shows this restriction was in place, and known to the City, throughout the period of her human rights complaint. Even if the City received all relevant medical information, before the RTW meeting, the City’s request for a new IME would still have been reasonable.
[158] From October to January 2021, the City took reasonable steps to explore other positions that Ms. McRae-Chalus could do, in the Planning and Building department. Mr. Kushnir’s testimony, and the information he provided to Ms. Rosas at the time, shows that he turned his mind to whether the City could create a position that accommodated Ms. McRae-Chalus’s restrictions. I accept that the City was willing to consider this option, after the RTW meeting, subject to a new IME.
[159] At the same time, the City returned to the question of whether Ms. McRae-Chalus could perform the BEC job, with accommodations, when it obtained a job demands analysis for the position. The occupational therapist who conducted the analysis did not testify at the hearing, and the City does not ask me to consider the analysis for the truth of its contents, but I can still consider the fact that the City took this step as reflecting a good faith effort to explore accommodation. The City’s decision to obtain a job demands analysis is evidence that the City had not closed its mind to accommodating Ms. McRae-Chalus within her previous position, even as it considered whether there was another position in her department that could better accommodate her restrictions.
[160] The City’s efforts to find a position in Ms. McRae-Chalus’s department that could accommodate her restrictions continued into January 2021. However, the letter from Dr. Dewji and Dr. Hutchinson, dated January 8, 2021, suggested Ms. McRae-Chalus could not return to work, with or without accommodations. I do not understand Ms. McRae-Chalus to argue that the City should have considered returning her to work after that.
iii. Conclusion on accommodation
[161] I find it was reasonable for the City to decide Ms. McRae-Chalus could not return to the BEC job while working from home, and without verbal communications. The City repeatedly considered whether the job could be done with those restrictions, starting in early 2019 when it first began to consider returning her to work, continuing around June 2019 after Ms. Gussenhoven said Ms. McRae-Chalus could return to work if she did not have to speak, and again in 2020, before and after the RTW meeting. In each case, the City reached the same conclusion: the BEC role required some degree of verbal communication and in-person interaction, and it was not possible to eliminate those aspects of the job without fundamentally changing the role. The City has proven that it would have been undue hardship to return her to the BEC job, with her restrictions on verbal communications and working outside her home.
[162] I do not accept Ms. McRae-Chalus’s argument that the City refused to accommodate her or return her to work. Although the City rejected Ms. Gussenhoven’s GRTW plan and Ms. McRae-Chalus’s preferred option of returning to work as a BEC while working from home, without speaking, this did not mean the City would not accommodate her at all. The City was open to placing her in a different position, in September 2019, and offered her a temporary job as a clerk in 2020. When she said her restrictions made that impossible, the City reasonably sought additional medical information to clarify her restrictions, and to facilitate a possible return to work. The City was trying to find a way to accommodate her.
[163] Ms. McRae-Chalus argues that the City did not fulfill its duty to accommodate her because there were extended periods, while she was on leave, when discussions about accommodation did not meaningfully progress. I agree with her argument that the City’s communications with her were intermittent and reactive. The City’s conduct after July 2020—when Ms. Rosas repeatedly followed up with Ms. Gussenhoven about Ms. McRae-Chalus’s restrictions and set up a meeting to discuss a possible return to work—reflects an urgency that did not exist before the City learned that Ms. McRae-Chalus’s LTD was likely coming to an end. This does not reflect best practices. The duty to accommodate is best served when employers take a proactive approach to seeking options for accommodations, rather than waiting until an employee’s disability benefits are expiring.
[164] However, the City’s conduct from late 2019 to June 2020 is understandable considering it had previously decided it could not accommodate a no-speaking restriction in the BEC role, and there was reason to believe the City would receive updated information about Ms. McRae-Chalus’s restrictions, after the IME in 2019 and the vocal therapy in 2020. I also note that, even if the City had more proactively reached out to Ms. McRae-Chalus and her medical providers, and sought information about her restrictions and whether they were permanent, there is no evidence that this would have changed anything, considering that Ms. Gussenhoven, who had access to all relevant medical information, was still struggling to determine the nature and permanence of the restrictions until September 2020.
[165] I agree with Ms. McRae-Chalus that the City did not always act with urgency, in considering her desire to return to work. I also agree the City could have made more of an effort to work with her. The City does not explain why it could not have contacted Ms. McRae-Chalus directly, before the RTW meeting, to try to clarify any confusion about her restrictions, or to get consent to obtain information from her doctors, rather than relying solely on BMBS and Ms. Gussenhoven for this information. Contacting her directly may have helped her understand what information the City needed, and may have made her feel more involved and valued, in the context of a long leave from her employment and a complicated accommodation process.
[166] However, even if the City had taken a more proactive or collaborative approach, I find the outcome of the accommodation process would have been the same. The information that Ms. McRae-Chalus’s physicians provided about her restrictions was not clear on the issue of whether she could return to work at the office, if she was not required to speak. On the evidence before me, I do not see how this uncertainty could have been resolved even if the City was more proactive about seeking medical information or contacting Ms. McRae-Chalus.
[167] In any event, although I understand Ms. McRae-Chalus’s frustration with the slow pace of the accommodation process, a slow process is not unusual, and is not necessarily unreasonable or indicative of resistance to accommodation. The Tribunal has noted that accommodation often takes time, as “medical information is obtained, assessments are done, work sites are investigated, and job functions researched”: Graham v. Richmond School District No. 38,2005 BCHRT 520 at para. 42.
[168] Ms. McRae-Chalus says the City’s approach to accommodation was not collaborative, and the City did not engage with the Union in a timely or meaningful way. I do not find this reflects any fault in the City’s conduct during the accommodation process. The Union was aware of Ms. McRae-Chalus’s situation, as Ms. McRae-Chalus copied Mr. Campbell or other Union representatives on many of her communications with Ms. Gussenhoven. There is no evidence that the City discouraged or resisted the Union’s involvement. In any event, I find that engaging with the Union sooner or in more depth would not have changed the outcome of the accommodation process. The City still would have come up against the uncertainty about her restrictions, based on the information it received from her medical providers.
[169] Ms. McRae-Chalus says the City did not attempt or trial her proposed accommodation. I understand her to argue that the City should have attempted to allow her to work as a BEC from home, for a trial period, before determining she could not do so. However, I do not accept that the duty to accommodate required this.
[170] Where reasonable inquiries have been made into whether an accommodation can be offered, and they lead to a conclusion of undue hardship, then the fact that there might be further inquiries which could be made is not relevant: Dunkley at para. 423. By late 2020, the City made inquiries into whether it could accommodate Ms. McRae-Chalus’s restrictions on several occasions, and concluded that it could not, without fundamentally changing her job. In my view, the fact that the City did not trial her proposed accommodation does not mean the City did not fulfill its duty to accommodate her. Contrary to Ms. McRae-Chalus’s submission in her final argument, the City did conduct a functional analysis of her duties. The analysis consisted of a series of events, including Ms. Harris’s discussions with Mr. Kushnir in early 2019, Ms. Rosas’s discussions with him in September 2019 and August 2020, and the steps taken by the City after the RTW meeting, including the job demands analysis obtained by the City in December 2020. The City made reasonable inquiries into whether it could offer Ms. McRae-Chalus the accommodations she sought.
[171] I do not agree with Ms. McRae-Chalus’s argument that the City’s approach to accommodation was not respectful. While a more proactive approach may have made her feel more respected and heard, and may have reduced her stress at times when it appeared her LTD was expiring, the City generally took an open-minded and professional approach to her case. In particular, I find the City’s conduct during the RTW meeting was reasonable and not disrespectful.
[172] In summary, although the City could have acted with more urgency at times between September 2019 and July 2020, and could have communicated more directly with Ms. McRae-Chalus, this would not have changed the outcome of the accommodation process. I find the City’s conduct during the accommodation process, considered as a whole, was reasonable. The City satisfied its duty to accommodate Ms. McRae-Chalus.
V CONCLUSION
[173] The City has established a bona fide occupational requirement defence. Ms. McRae-Chalus’s complaint is dismissed under s. 37(1) of the Human Rights Code.
Andrew Robb
Tribunal Member