Engelhardt v. Coast Mountain Bus Company and another, 2026 BCHRT 31
Date Issued: January 27, 2026
File: CS-006709
Indexed as: Engelhardt v. Coast Mountain Bus Company and another, 2026 BCHRT 31
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:
Richard David Engelhardt
COMPLAINANT
AND:
Coast Mountain Bus Company and Unifor Local 111
RESPONDENTS
REASONS FOR DECISION
APPLICATION TO DISMISS A COMPLAINT
Section 27(1)(c)
Tribunal Member: Jonathan Chapnick
On his own behalf: Richard David Engelhardt
Counsel for Coast Mountain Bus Company: Adriana Wills and Alyssa Paez
Counsel for Unifor Local 111: Toby Whitfield
I INTRODUCTION
[1] Richard David Engelhardt alleges that his former employer, Coast Mountain Bus Company [CMBC], and his former union, Unifor Local 111 [Unifor], discriminated against him based on mental disability. Mr. Engelhardt worked for CMBC for about six years, mostly as a conventional transit operator. During that time, he was a member of Unifor. His complaint relates to specific events that took place between October 2021 and March 2022. He says CMBC harassed, threatened, and mistreated him in connection to his chronic anxiety disorder. He says he went to Unifor for help, but received none.
[2] The Respondents each apply to dismiss Mr. Engelhardt’s complaint under s. 27(1)(c) of the Human Rights Code. Under s. 27(1)(c), the Tribunal can dismiss complaints that have no reasonable prospect of success and therefore do not warrant the time and expense of a hearing. This is part of the Tribunal’s gatekeeping function. The Tribunal’s task under s. 27(1)(c) is to look at the evidence provided to decide whether “there is no reasonable prospect that findings of fact that would support the complaint could be made on a balance of probabilities after a full hearing of the evidence”: Berezoutskaia v. British Columbia (Human Rights Tribunal), 2006 BCCA 95 at para. 22, leave to appeal ref’d [2006] SCCA No. 171.
[3] In relation to the events in question, CMBC says Mr. Engelhardt has no reasonable prospect of proving that he experienced an adverse impact in employment with a discriminatory nexus to his disability. Similarly, Unifor says the complaint against it should be dismissed because, while Mr. Engelhardt alleges that Unifor failed to help him, he fails to particularize how its conduct related to his disability.
[4] On December 18, 2021, Mr. Engelhardt informed CMBC that he was resigning from his employment, effective December 31, 2021. I acknowledge his evidence that the events in question in this complaint resulted in him feeling that he needed to leave his transit career for mental health reasons. Nevertheless, based on all of the materials before me, I am satisfied that he has no reasonable prospect of making his case against either Respondent. In my view, even accepting Mr. Engelhardt’s version of the relevant events, there is no reasonable prospect that the Tribunal could find discrimination. As a result, for the reasons that follow, the Respondents’ dismissal applications are granted, and Mr. Engelhardt’s complaint is dismissed.
[5] To make my decision, I have considered all the arguments and evidence filed. In my reasons, however, I only refer to what is necessary to explain what I decided. I make no findings of fact. I begin by considering the complaint against CMBC.
II DECISION REGARDING COMPLAINT AGAINST CMBC
[6] Mr. Engelhardt’s complaint against CMBC is in the area of employment under s. 13 of the Code. To succeed at a hearing, he would need to make his case by proving that (1) he had a mental disability, (2) he experienced an adverse impact in employment, and (3) his disability was a factor in the adverse impact: Moore v. British Columbia (Education), 2012 SCC 61 at para. 33. Mr. Engelhardt’s allegations against CMBC relate to four events between October and December 2021: an attendance meeting with his supervisor [Supervisor]; CMBC’s request for a review of his workers’ compensation claim for a shoulder injury; and two interactions with a CMBC benefits administrator, the latter of which occurred on December 15, 2021.
[7] I will consider the attendance meeting first, followed by the WorkSafeBC review, and then the two interactions with the benefits administrator.
A. Attendance Meeting
[8] CMBC has policies and procedures for managing employee attendance issues, which are reflected in an internal guidebook [Guide]. When there are concerns about an employee’s attendance, the employee’s supervisor will meet with the employee for a discussion. Depending on the circumstances, CMBC may put the employee in its “attendance program” for further management of the attendance issues through additional meetings, discussions, and reviews.
[9] Mr. Engelhardt went to an attendance meeting with the Supervisor on October 13, 2021 [Attendance Meeting]. His description of the meeting differs in many respects from the Supervisor’s. Mr. Engelhardt’s version of events is primarily set out in his complaint form:
[The Supervisor] began running through the script of the attendance management program for ‘informal discussion’. He was assessing my absences for patterns and questioning whether a WorkSafeBC absence should be included. I informed him most of my absences are a result of a reported chronic condition and that he should check with Occupational Health and Safety to proceed. He informed me that having a chronic condition is not a carte blanche to book off whenever I please. He doubted that my absences were a result of my chronic conditions. He stated that the employer was not required to accommodate Chronic Conditions because they weren’t actually disabilities. He asserted that any absence that resulted for any other illness would escalate me along the program, and complained about self diagnosis when I described how I manage my disorder.
[10] The Guide encourages supervisors to inform employees that their attendance record is a factor that may be taken into account when they are seeking promotions. The evidence indicates that the Supervisor brought this to Mr. Engelhardt’s attention during the Attendance Meeting.
[11] Mr. Engelhardt says he became agitated when the Supervisor accused him of absenteeism at the meeting. He says absenteeism “is the practice or regularly staying away from work or school without good reason” (reproduced as written). He says the accusation of absenteeism was inherently a challenge to the legitimacy of his absences, including those related to his chronic condition.
[12] Mr. Engelhardt says that during the Attendance Meeting, he told the Supervisor “that my health is not supporting my role as a transit operator, and that I’d like to explore other opportunities in the company.” He says this was a request for accommodation. He says the Supervisor responded by indicating satisfaction with Mr. Engelhardt’s job performance.
[13] The evidence shows a follow-up email exchange between Mr. Engelhardt and the Supervisor after the Attendance Meeting. An email from Mr. Engelhardt to the Supervisor, sent in the morning on October 18, 2021, states:
Hi Chris,
I’m going over my day and didn’t cancel the 1:30 meeting. I think we covered all of the topics I wanted to talk about last week, is there anything we should discuss at 1:30 or should we cancel?
Thanks!
[14] An email response from the Supervisor to Mr. Engelhardt, sent in the afternoon on October 19, 2021, states:
Sorry Richard, I ended up taking Monday off. I think we are good. The takeaway for you would be that another absence within the next 6 months could move you forward in the [attendance] program but of course it depends on what the situation is and circumstances and whether it is chronic or not etc etc.
Other than that I’ve paid you for [the] discussion and that won’t affect your current attendance.
Thanks.
[15] Mr. Engelhardt describes what happened as being threatening and amounting to harassment. He argues that CMBC viewed his absences as being without good reason, which he says was contrary to medical evidence. Mr. Engelhardt argues that CMBC gaslit him by trying “to get me to believe that I was doing something wrong even though I wasn’t.” He argues that he was forced to account for his medically explained absences, and he reasonably believed that further such absences would advance him through the attendance program and jeopardize his career.
[16] Citing Brito v. Affordable Housing Societies and another, 2017 BCHRT 270, Reilly v. City of Vancouver and another, 2024 BCHRT 81, and Gaucher v. Fraser Health Authority and others, 2019 BCHRT 243, CMBC argues that even if Mr. Engelhardt’s version of events is accepted, he has no reasonable prospect of proving that what happened amounted to a disability-related adverse impact within the meaning of the discrimination analysis under the Code. I agree with this argument.
[17] Accepting Mr. Engelhardt’s factual description of the Attendance Meeting for the purposes of this application, I can appreciate why it would have upset him. The Supervisor is alleged to have scrutinized Mr. Engelhardt’s legitimate medical leaves, including those connected to his disability. Mr. Engelhardt’s disability-related absences were allegedly challenged, and his disability and need for accommodation were allegedly questioned. In my view, however, viewed in context, this alleged exchange is not enough on its own to require the Tribunal’s intervention in this case. Not all negative treatment connected to a protected characteristic amounts to discriminatory harassment or otherwise violates the Code: Brito at para. 41.
[18] Mr. Engelhardt has not alleged – and the evidence does not support – that the Attendance Meeting was disciplinary. Beyond conveying CMBC’s concerns regarding Mr. Engelhardt’s absenteeism levels and telling him what could result (i.e., further attendance management; potential impact on promotion opportunities), the evidence shows no employment consequences imposed on Mr. Engelhardt at or after the meeting. On the contrary, the Supervisor’s follow-up email indicates that CMBC would consider Mr. Engelhardt’s individual circumstances, including his chronic condition, in addressing any future absences.
[19] While some of the Supervisor’s alleged comments at the meeting could be found to have been inappropriate, disrespectful, and inaccurate, in my view they cannot reasonably be characterized as being threats. Further, I note that the comments were allegedly made on a single occasion, and they are not alleged to have been made in an aggressive or abusive manner. Viewed in the context of the emails that followed and the lack of resulting employment consequences, on the evidence before me, I do not see any reasonable prospect that the Tribunal could objectively determine that the Attendance Meeting, on its own, amounted to harassment or any other form of discriminatory barrier to Mr. Engelhardt’s ability to participate fully and with dignity in his employment.
[20] Nor, in my view, is there any reasonable prospect of the Tribunal finding that Mr. Engelhardt’s alleged reference at the meeting to a health-related interest in exploring other job opportunities amounted to a request for accommodation. In any event, an allegation that an employee requested accommodation, without more, is not an allegation of discrimination.
[21] I acknowledge Mr. Engelhardt’s concerns regarding the word “absenteeism,” but I do not accept his characterization of the term. I see no inherent negative connotation on a plain reading of it, nor is there anything in the record to support that CMBC used the term in any way other than to describe the state of being absent from work. While the Guide contemplates there being illegitimate types of absences (“misuse of sick leave benefits”), it states that attendance discussions are non-disciplinary and its attendance program is fundamentally aimed at managing “non-culpable absenteeism” – i.e., absences that are legitimate, but still concerning to CMBC due to their length, frequency, disruptiveness, or other factors.
[22] Finally, I acknowledge Mr. Engelhardt’s allegation that CMBC’s actions aggravated his anxiety disorder. However, even if he can prove that the Attendance Meeting caused him to experience stress and anxiety, that would not, on its own, amount to discrimination. Behaviour that causes or contributes to a disability is not, in itself, discrimination: Basi v. District of Saanich and another, 2018 BCHRT 7 at para. 134, citing Vandale v. Town of Golden and others, 2009 BCHRT 219at para. 43. I appreciate that attendance management meetings can be distressing for an employee, and that the Supervisor’s alleged comments at the Attendance Meeting would have made a difficult situation worse. Despite how these types of meetings may make employees feel, however, in general, “it is not adverse treatment for an employer to alert an employee that their level of absenteeism is of concern, and to advise of potential consequences if their attendance does not improve”: McBride v. Orca Sand & Gravel L.P. (No. 2), 2010 BCHRT 190 at 127.
[23] In sum, on the information before me, I am satisfied that Mr. Engelhardt’s allegation of discrimination at the Attendance Meeting has no reasonable prospect of success.
B. Request for review of WorkSafeBC claim
[24] Mr. Engelhardt’s next allegation of discrimination relates to a workers’ compensation claim for a shoulder condition, which he filed in July 2021 [Shoulder Claim]. The following relevant background is reflected in the documents before me and does not appear to be in dispute:
a. CMBC objected to the Shoulder Claim when it was filed, raising questions regarding the mechanism of the injury and causative significance, and whether it was medically supported. Despite CMBC’s objection, a WorkSafeBC case manager decided to accept the Shoulder Claim in mid-September 2021 [Shoulder Claim Decision].
b. On October 25, 2021, Mr. Engelhardt filed a workers’ compensation claim for a mental health injury related to the Attendance Meeting [Mental Injury Claim]. CMBC objected to the claim, stating that it was in the process of investigating what happened. WorkSafeBC subsequently denied the Mental Injury Claim.
c. Within a few days of Mr. Engelhardt filing the Mental Injury Claim, a CMBC representative [CMBC Rep] asked WorkSafeBC to review the Shoulder Claim Decision [Request for Review].
[25] A Workers’ Compensation Appeal Tribunal [WCAT] decision provided by Mr. Engelhardt gives additional background related to the Request for Review. The WCAT decision indicates that: in March 2022, a review officer referred the Shoulder Decision back for further investigation and a new decision regarding the compensability of the Shoulder Claim; in May 2023, a case manager denied the Shoulder Claim; in June 2023, Mr. Engelhardt asked WorkSafeBC to review the decision to deny the Shoulder Claim; in February 2024, a review officer confirmed the decision to deny the Shoulder Claim; Mr. Engelhardt subsequently appealed the review officer’s decision to WCAT; and in October 2024, WCAT allowed Mr. Engelhardt’s appeal.
[26] Mr. Engelhardt says he felt afraid that the Request for Review was retribution for his submission of the Mental Injury Claim. He asserts that the CMBC Rep could reasonably be expected to have been aware of his anxiety disorder. From these submissions, I understand Mr. Engelhardt to be claiming that CMBC deliberately discriminated against him based on mental disability by filing the Request for Review to punish him for making a workers’ compensation claim related to his anxiety disorder. To succeed in making this claim at a hearing, Mr. Engelhardt would need to prove that he was negatively impacted by the Request for Review and his mental disability was one factor in CMBC’s decision to file it: see Kondolay v. Pyrotek Aerospace Ltd., 2020 BCHRT 208 at para. 105.
[27] CMBC denies discriminating. It puts forward several arguments for dismissing the allegation that the Request for Review was discriminatory, including arguing that its decision to file the request was unrelated to Mr. Engelhardt’s mental disability. In support of this argument, CMBC’s workplace management advisor [Management Advisor] provides a non-discriminatory explanation for the decision to file the Request for Review. Her evidence is that the request was filed “because management was concerned that WorkSafeBC did not have all of the information necessary to make a decision on the [Shoulder] Injury Claim and because of the nature of the injury.” The Management Advisor states that “[o]nly approximately 5% of shoulder injury claims are accepted by WorkSafeBC for CMBC employees” because risk factors for shoulder injuries are not generally present in their work. She states that, “[t]herefore, requests for reviews for shoulder injury claims are routine” at CMBC.
[28] On the surface, the Request for Review appears to bear no connection to Mr. Engelhardt’s anxiety disorder, the Mental Injury Claim, or the Attendance Meeting; it is explicitly about the Shoulder Claim. At a hearing, then, the question would be whether an inference of discrimination is more likely than CMBC’s explanation for its decision to file the Request for Review. Mr. Engelhardt would need to persuade the Tribunal that the circumstantial evidence supporting such an inference renders it more probable than CMBC’s non-discriminatory explanation: Kondolay at paras. 108 and 124, citing Vestad v. Seashell Ventures Inc., 2001 BCHRT 38 at para. 44. For the following reasons, I am satisfied that he has no reasonable prospect of doing so.
[29] Accepting for the purposes of this application that the CMBC Rep was aware of Mr. Engelhardt’s anxiety disorder, the only other circumstantial evidence that could potentially support Mr. Engelhardt’s claim is the timing of the Request for Review: Parry v. Vanwest College, 2005 BCHRT 310 at paras. 62-74. CMBC does not explain its timing in the materials before me. There is no explanation as to why CMBC appears to have waited over a month to seek a review of the Shoulder Claim Decision, only to file it within days of the Mental Injury Claim. In my view, the CMBC Rep’s awareness of Mr. Engelhardt’s anxiety disorder, coupled with the timing of the Request for Review, would be factors that favour an inference of discrimination in this case. However, at a hearing, the Tribunal would weigh these factors against the countervailing evidence supporting CMBC’s non-discriminatory explanation for the Request for Review. That evidence includes the following:
a. Documentary evidence of CMBC’s objection to the Shoulder Claim when it was originally filed, which pre-dated the Attendance Meeting and the Mental Injury Claim.
b. The Management Advisor’s evidence regarding the routine nature of requests for reviews of shoulder claims, and the low acceptance rate for such claims for CMBC employees.
c. WCAT’s summary of CMBC’s submission in support of the Request for Review, which describes CMBC as arguing that: the investigation of the Shoulder Claim was not thorough or complete; the original case manager did not complete an activity-related soft tissue disorder assessment; and key determinations were made without the benefit a medical opinion.
d. Evidence that somewhat validates the Request for Review, in the form of the March 2022 decision to refer the Shoulder Decision back for further investigation and the May 2023 denial of the Shoulder Claim, which was confirmed by a review officer in February 2024.
[30] I also note that the evidence indicates that CMBC maintained its objection to the Shoulder Claim long after Mr. Engelhardt resigned, including making submissions to WCAT on the matter in July 2024. In addition, I find the evidence regarding the nature of the dispute over the Shoulder Claim to be noteworthy. The documentary evidence indicates that the compensability of the Shoulder Claim turned on provisions of the Workers Compensation Act that establish a special presumption of compensation for Mr. Engelhardt’s shoulder condition in relation to processes or industries where certain shoulder actions are determined to be a significant component of the worker’s employment.
[31] Based on my assessment of all the materials filed, I am persuaded that the evidence overwhelmingly supports CMBC’s explanation for the Request for Review, as being about the nature of the injury in question and the nature and quality of the original case manager’s investigation. In my view, on balance, the evidence strongly suggests that the Request for Review was not a vexatious or spur-of-the-moment, punitive response to the Mental Injury Claim. As a result, on the whole of the evidence before me, I am satisfied that Mr. Engelhardt has no reasonable prospect of persuading the Tribunal that the limited circumstantial evidence favouring an inference of discrimination renders it more probable than CMBC’s non-discriminatory explanation for the Request for Review. The evidence does not take Mr. Engelhardt’s claim of disability-related retribution “out of the realm of conjecture”: Workers’ Compensation Appeal Tribunal v. Hill, 2011 BCCA 49 at para. 27.
C. Interactions with Benefits Administrator
[32] Finally, Mr. Engelhardt alleges discrimination in two interactions with a CMBC benefits administrator [Benefits Administrator] regarding his sick leave coverage. Sick leave benefits for CMBC employees are provided through Canada Life.
[33] Mr. Engelhardt’s evidence regarding the interactions is as follows:
a. On or around November 15, 2021, he received conflicting information from Canada Life and CMBC regarding his sick leave coverage for certain absences, and the Benefits Administrator “refused to verify the information with [Canada Life], demanded written proof of a discrepancy, created a new discrepancy, and informed [him] that it was [his] responsibility to sort it out.”
b. On or around December 15, 2021, Canada Life inquired regarding his sick absences “and reported [that] their records again differed from that of [CMBC].” He contacted CMBC and the Benefits Administrator again “denied the error and informed me of my ineligibility for sick day coverage.” He subsequently involved a Unifor representative and a supervisor, and the Benefits Administrator “was able to contact Canada Life, verify the error, and correct it.”
[34] Based on his submissions, I understand Mr. Engelhardt to be alleging that the Benefits Administrator mistreated him, including by refusing to correct attendance records related to his disability-related absences. He says he felt gaslit by the Benefits Administrator. He says she knew about his anxiety disorder, and their interactions were very stressful and caused him further anxiety.
[35] CMBC denies any discrimination in these interactions. It argues that Mr. Engelhardt has no reasonable prospect of proving a disability-related adverse impact in the interactions. Even accepting Mr. Engelhardt’s version of events, I agree.
[36] Mistreatment in relation to an employee’s access to disability-related benefits is not necessarily discrimination. The disability-related nature of the benefits does not, on its own, establish the type of connection required to prove that the mistreatment violated s. 13 of the Code: Lesnikov v. Anglo American Exploration (Canada) Ltd., 2024 BCHRT 245 at para. 77; see generally Ingram v. Workers’ Compensation Board and others, 2003 BCHRT 57 at paras. 16-22. In the materials before me, there is no direct evidence that Mr. Engelhardt’s disability was a factor in the Benefits Administrator’s alleged denials, demands, refusals, or other actions. Nor is there circumstantial evidence from which the Tribunal could reasonably infer such a connection. For these reasons, and because behaviour that causes a person stress and anxiety is not, in itself, discrimination, I am satisfied that this part of Mr. Engelhardt’s complaint has no reasonable prospect of success.
D. Events in their totality
[37] I am mindful that harassment and other forms of discrimination can be subtle, and their impact can be cumulative over time. In this regard, I note Mr. Engelhardt’s submission that:
After the harassment and threats my resilience to the employer’s usual callous treatment was terribly diminished. Between [the Benefits Administrator’s] refusal to correct my attendance records and the employer’s appeal of my shoulder injury – just because they could my situation became hopeless. The knowledge that I would be unable to advance in my career the moment I took the inevitable next absence I knew I had to resign for both my own psychological safety and due to the safety sensitive nature of the transit operator position.
[38] In the workplace context, unequal power dynamics may contribute to an employee feeling harassed or mistreated by the people exercising power over all aspects of their employment. However, those subjective feelings are not enough to prove discrimination: Gaucher at para. 62. Considering the relevant events in this case in their totality, and despite Mr. Engelhardt’s stated, cumulative experience of those events, on the whole of the evidence before me I am persuaded that there is no reasonable prospect that his complaint against CMBC will succeed. The complaint against CMBC is dismissed: Code, s. 27(1)(c).
III DECISION REGARDING COMPLAINT AGAINST UNIFOR
[39] Mr. Engelhardt’s complaint against Unifor is in the areas of employment and union membership under ss. 13 and 14 of the Code. To succeed at a hearing, he would need to make his case by proving that he experienced a disability-related adverse impact in employment or union membership, and that the union was liable for the discrimination.
[40] Mr. Engelhardt’s allegations against Unifor relate to two events: a meeting with Unifor Local 111’s 2nd vice-president [Local VP] in October 2021, and an email to Unifor Local 111’s president on March 8, 2022 [Local President]. His evidence is that he met with the Local VP to discuss his Mental Injury Claim, and told her that his human rights had been violated. He says “she didn’t seem to care” and told him that challenging the Attendance Program was not in his interests or Unifor’s. He says he subsequently kept the Local VP apprised of his struggles to correct discrepancies between his attendance records with Canada Life and CMBC. His evidence is that she was uninformed and unhelpful.
[41] After resigning in December 2021, Mr. Engelhardt emailed the Local President and other union executives on March 8, 2022. In the email, he described the Attendance Meeting and stated that he had left his employment at CMBC “due to discriminatory treatment of my chronic medical condition and the attendance management program.” He stated that the Attendance Meeting exacerbated his chronic anxiety disorder, and that subsequent stressors – including the Request for Review and CMBC’s “refusal to correct inaccurate information at Canada Life” – left him fearing for his psychological safety, as a result of which he resigned. He asked the Local President if Unifor would file a grievance on his behalf to address the discriminatory treatment he endured, and requested a response by April 15, 2022. Mr. Engelhardt’s evidence is that Unifor did not respond to his email.
[42] Based on his evidence, Mr. Engelhardt asserts that Unifor failed to protect him from CMBC’s discrimination. He says “[t]he union failed to represent me … because my medical condition was not as bad as other harms that could be suffered.” Citing a text message in which the Local VP allegedly asked another Unifor representative if Mr. Engelhardt “was a millennial,” he alleges that she refused to advocate for him, and says her refusal was “because she didn’t accept that the employer’s abuse was harmful, and because she thought I was being too sensitive.” He says the word millennial “was used as a dog whistle at the time for younger people who were more sensitive to abuse.”
[43] Unifor argues that the complaint against it should be dismissed because Mr. Engelhardt fails to particularize a discriminatory connection between his disability and the union’s alleged conduct. Unifor’s account of the relevant events differ in some respects from Mr. Engelhardt’s. In my view, however, the differences are not foundational and do not require a hearing to resolve. As I explain below, even accepting Mr. Engelhardt’s version of the facts, his complaint against Unifor has no reasonable prospect of success.
[44] Depending on the circumstances, a union respondent may be liable for discrimination under s. 13 or s. 14, or both: see Ferris v. Office and Technical Employees Union, Local 15, 1999 BCHRT 55 at paras. 79-80; Basi at paras. 124-125. Section 13 is generally engaged where a union’s discrimination against its member “touches on the employment relationship” or otherwise “has a sufficient nexus to the employment context”: Ferris at para. 79; British Columbia Human Rights Tribunal v. Schrenk, 2007 SCC 62 atpara. 38. For example, where a union participates with an employer in the formulation of a discriminatory work rule, it becomes a party to the workplace discrimination and may be liable for a failure to accommodate in the workplace: Central Okanagan School District No. 23 v. Renaud, [1992] 2 S.C.R. 970 at paras. 32-36 [Renaud]. Or, even if the union did not participate in formulating the discriminatory work rule, if it blocks the employer’s efforts to remove or alleviate the discrimination, then “it becomes a party to the discrimination” and has a duty to accommodate: Renaud at para. 37. Ultimately, a union is a “person” under the Code and is subject to the prohibition against “discrimination against a person with respect to employment or any term or condition of employment without differentiating between direct and adverse effect discrimination”: Renaud at para. 32; Code, s. 1. Accordingly, “a union which causes or contributes to the discriminatory effect incurs liability,” subject to any justification defence: Renaud at para. 32.
[45] Section 14 of the Code is different from s. 13, but the two provisions are not mutually exclusive: Ferris at para. 80. Section 14 is generally engaged where a union “discriminates against a member as a member rather than as an employee”: Ferris at para. 80. For example, s. 14 may be breached where a union provides inadequate or inappropriate representation to its member, and the member’s protected characteristic is a factor in the poor representation: see Graham v. School District No. 38 (Richmond) and CUPE Local 716, 2005 BCHRT 520 at para. 59; Waters v. Coca-Cola and Teamsters Local 213, 2005 BCHRT 557 at para. 18; Basi at para. 125.
[46] Regardless of whether a complaint against a union is filed under s. 13 or s. 14, or both, it cannot succeed unless there is evidence of a nexus between the complainant’s protected characteristic and what the union allegedly did that negatively impacted them. It is not enough for a complainant to say they had a protected characteristic and their union represented them in a way that was inadequate or inappropriate. The complainant must also allege and be able to prove a connection between their protected characteristic and the union’s poor representation: Badour v. Provincial Health Services Authority and others, 2012 BCHRT 112 at para. 29; Mohr v. Power Flagging & Traffic Control Inc. (Power Earth) and others (No. 2), 2025 BCHRT 13 at para. 12. In my view, this is where Mr. Engelhardt’s complaint against Unifor falls particularly short.
[47] Even accepting Mr. Engelhardt’s description of what happened (i.e., Unifor did not respond to his March 2022 email seeking representation; and the Local VP was unhelpful, asked if he was a millennial, did not care about him, advised against challenging the Attendance Program, and refused to advocate for him), the evidence filed does not support a discriminatory connection to his mental disability. Mr. Engelhardt’s allegation that Unifor failed to pursue his claim of workplace discrimination – without more – is not an allegation of discrimination: Redmond at para. 72; Mohr at para. 12; see Badour at para. 29. The assertion that Unifor failed to represent him because it viewed his condition as being “not as bad as other harms that could be suffered” is conclusory, and not supported in the materials before me. Even if the evidence could support that the Local VP viewed Mr. Engelhardt as being too sensitive and did not think CMBC’s conduct was harmful, the suggestion that those alleged perceptions were based on or connected to his disability is entirely speculative. Overall, Mr. Engelhardt has not provided evidence upon which the Tribunal could find or infer that Unifor represented him worse than it would have represented another member in the circumstances, or that his mental disability was a factor in the alleged inadequacy of its representation. The evidence before me does not take his allegations of discrimination against Unifor out of the realm of conjecture.
[48] For these reasons, I am satisfied that Mr. Engelhardt’s complaint against Unifor has no reasonable prospect of success. The complaint against Unifor is dismissed: Code, s. 27(1)(c).
IV CONCLUSION
[49] Mr. Engelhardt spent over half a decade at CMBC, and was working towards a career building transportation infrastructure. Unfortunately, the events in question in this complaint led him to feel that he could not continue forward; he felt he had to leave and start again. I am sorry that this happened. My decision to dismiss Mr. Engelhardt’s complaint is not meant to minimize his experience of what happened.
[50] The Respondents’ dismissal applications are granted. The complaint is dismissed: Code, s. 27(1)(c).
Jonathan Chapnick
Tribunal Member