Hewitt v. City of Coquitlam, 2026 BCHRT 45
Date Issued: February 5, 2026
File: CS-006266
Indexed as: Hewitt v. City of Coquitlam, 2026 BCHRT 45
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:
Lee Hewitt
COMPLAINANT
AND:
City of Coquitlam
RESPONDENT
REASONS FOR DECISION
APPLICATION TO DISMISS A COMPLAINT
Section s. 27(1)(c)
Application for Further submissions
Rule 28
Tribunal Member: Kathleen Smith
Counsel for the Complainant: Fred Wynne and Ryan Sissons
Counsel for the Respondent: James D. Kondopulos and Jaime H. Hoopes
I INTRODUCTION
[1] In this decision, I provide my reasons for dismissing the complaint without a hearing.
[2] Lee Hewitt worked for the City of Coquitlam [City] for twenty-seven years. He brought a human rights complaint alleging discrimination during his employment based on family status and disability. Regarding family status, Mr. Hewitt alleges he was disciplined “collectively” along with his nephew because of their family relationship. Regarding disability, Mr. Hewitt claims that he developed a mental disability due to bullying and harassment by his supervisor and the City failed to accommodate his return to work, forcing him to retire. Mr. Hewitt asserts that the City’s conduct is a violation of s. 13 of the Human Rights Code.
[3] The City denies discriminating. The City asserts that Mr. Hewitt was not disciplined on account of his family relationship, or at all. The City also asserts that it was committed to supporting Mr. Hewitt’s return to work by offering reasonable accommodations but Mr. Hewitt frustrated the process then elected to retire.
[4] The City applies to dismiss the complaint on the basis that it has no reasonable prospect of success at a hearing: Code, s. 27(1)(c). Mr. Hewitt opposes the application.
[5] For the following reasons, I am persuaded the complaint has no reasonable prospect of success and dismiss it. The parties provided extensive materials. To make this decision, I have considered all the information filed by the parties. In these reasons, I only refer to what is necessary to explain my decision.
II Preliminary Issue: Application for further submissions
[6] After the City filed a reply to the dismissal application, Mr. Hewitt brought an application seeking permission to file to a further submission, also known as a sur-reply. In brief, Mr. Hewitt objects to certain evidence and submissions provided by the City as part of its reply. He argues that the impugned material is improper for a reply and asks the Tribunal to disregard it.
[7] The City opposes the application for a sur-reply. First, the City argues that the Tribunal ought to reject the application outright because it is late filed by over ten weeks and not compliant with Rule 28(5) of the Tribunal’s Rules of Practice and Procedure [Rules]. Additionally, the City argues that the application is without merit because the impugned material is appropriate and relevant to the issues in dispute.
[8] The Tribunal’s process regarding applications usually involves three rounds of submissions: the application, the response, and the reply: Rule28(2). However, the Tribunal has discretion to accept further submissions where fairness requires that a party be given an opportunity to respond to new issues raised in a reply: Kruger v. Xerox Canada Ltd (No. 2),2005 BCHRT 24; Rule 28(5). A party who wants to apply to make further submissions is required to immediately notify the Tribunal and file the application within one week of the reply: Rule 28(5).
[9] I begin with the timing of the application. Rule 28(5) requires a party seeking to file a sur-reply to address a new issue raised in a reply submission to:
a. immediately notify the Tribunal and other participants of their intention to apply to file a further submission; and
b. apply within one week of receiving the reply submission.
[10] In this case, the City filed its reply to the dismissal application on March 24, 2025. One week later, on March 31, 2025, Mr. Hewitt sent a 3-page letter to the Tribunal stating his objections to the City’s reply. He did not use a Form 7.1 general application form. He did not state that he intended to apply to file a further submission to address a new issue raised in the reply. He also did not seek an extension of time to do so.
[11] On April 1, 2025, the City wrote to the Tribunal expressing the view that Mr. Hewitt’s March 31, 2025, letter is an improper application for sur-reply and asked the Tribunal to disregard it. Mr. Hewitt responded on the same day. His communication to the Tribunal stated that he does not consider the letter a sur-reply, but rather “an objection to improper reply and inadmissible evidence submitted by the respondent at the reply stage.” Mr. Hewitt further stated that it would be unfair to disregard his objection to the reply since there is no mechanism in the Tribunal’s Rules to address this situation.
[12] On June 9, 2025, the Tribunal’s Case Manager wrote to Mr. Hewitt and confirmed that the objections raised in his March 31, 2025, letter constitute a “further submission” and advised that the Tribunal will not consider it, absent a successful application to file a further submission under Rule 28(5). The next day, on June 10, 2025, Mr. Hewitt, filed an application for further submissions using a Form 7.1 and attaching his March 31, 2025, letter.
[13] To be timely, Mr. Hewitt had to file his application by no later than March 31, 2025. Mr. Hewitt filed his application ten weeks later.
[14] In the application, Mr. Hewitt asserts that he has complied with the timeline in Rule 28(5) because he raised his objection to the reply on March 31, 2025. I disagree. As set out above, Mr. Hewitt’s March 31, 2025, letter is not an application. The letter also does not include any notification that he intends to apply to file a further submission. In fact, his subsequent communication on April 1, 2025, suggests that his intention on March 31, 2025, was not to apply to file a sur-reply.
[15] Ten weeks is a significant delay, and I am not persuaded that fairness requires that the Tribunal consider the application. In reaching this conclusion, I gave considerable weight to the fact that this is not a situation where Mr. Hewitt was self-represented and did not understand the Tribunal’s process. Rather, Mr. Hewitt has been represented by experienced counsel throughout yet only filed his application after the Tribunal directed him to do so.
[16] Before moving on, I pause to address Mr. Hewitt’s assertion that the Rules do not provide a mechanism for a complainant to object to improper reply and inadmissible evidence submitted by the respondent at the reply stage. I reject this argument. In the circumstances described by Mr. Hewitt the appropriate mechanism is to apply to file a further submission and attach the further submission that sets out the new issue and why fairness requires that the Tribunal consider a further submission. Ultimately, this is what Mr. Hewit did, albeit late. In my view, there is no uncertainty that Rule 28(5) contemplates circumstances where a new issue is raised in a reply and the other party seeks to address it by way of a further submission.
[17] I deny the application for a further submission and have not considered Mr. Hewitt’s March 31, 2025, letter in reaching my decision on the dismissal application.
[18] Even if I had considered Mr. Hewitt’s sur-reply, I would not be persuaded that the Tribunal ought to disregard the evidence provided by the City in its reply. As I understand it, Mr. Hewitt takes issues with three paragraphs in an affidavit and the exhibit attached to it. I observe that the impugned paragraphs in the affidavit begin with the statement, “To clarify matters raised at paragraphs 14 to 20 of the Response…” In my view these three paragraphs respond directly to issues raised in the response, including Mr. Hewitt’s assertion that what the City provided in the application must represent the entirety of its investigation. While I agree that the exhibit contains significant redactions and cannot be relied on for the truth of its contents, it is nevertheless relevant and constitutes proper reply in the circumstances.
III BACKGROUND
[19] In this section I provide background information to put this decision in context. I make no findings of fact.
[20] The City is a municipal government located in the Lower Mainland. It provides a wide range of services to its residents.
[21] Mr. Hewitt worked for the City in the position of Facilities Management Coordinator in the Facilities Division, Civic Lands and Facilities. This is a supervisory role which involves overseeing the operation of City facilities, working closely with City Management, and assigning work to, directing, and supervising other staff. Mr. Hewitt was a Union member and the terms and conditions of his employment were governed by a collective agreement between the City and the Union. Mr. Hewitt reported to the Supervisor who reported to the General Manager.
[22] Mr. Hewitt’s nephew worked for the City part-time. In July 2020, the City started an investigation into suspected wrongdoing on the part of the Nephew. The City ultimately terminated the Nephew’s employment for misconduct.
[23] The City says that during the events related to the Nephew it learned that Mr. Hewitt may have leveraged his supervisory role and knowledge to coach the Nephew during the investigation into the Nephew’s misconduct. On this basis, the City launched an investigation into suspected wrongdoing on the part of Mr. Hewitt [the Investigation].
[24] The City requested Mr. Hewitt to attend a meeting on July 10, 2020, to address its concern that he may have improperly involved himself in the investigation regarding the Nephew contrary to the City’s Code of Conduct. As I understand it, Mr. Hewitt, the Supervisor, and the Senior HR Advisor attended the meeting.
[25] Mr. Hewitt says that during and following the July 10 meeting his health deteriorated.
[26] The City says that Mr. Hewitt left the meeting abruptly after accusing the Supervisor of engaging in various kinds of misconduct and creating a toxic work environment. The City says that Mr. Hewitt had not previously raised any similar concerns regarding the Supervisor.
[27] A few hours after the meeting, Mr. Hewitt emailed the City a medical note from his doctor and a brief complaint about the Supervisor. The July 10, 2020, medical note states, “Due to medical reasons, I have suggested that Mr. Hewitt take a leave of absence for the next four weeks at which point I will review and advise.” Mr. Hewitt’s written complaint about the Supervisor states:
On this day Friday July 10, 2020, I am officially advising the City of Coquitlam that my manager [name redacted] has inappropriately used City funds. In such, has broken the Respectful Workplace Policy, through breaking down the dignity and self esteem of myself and fellow staff members.
This has been an extremely stressful and a toxic work environment for me. This type of mismanagement along with [the Supervisor’s] bullying tactics have gone on for many years. Examples of these accusations can be supported.
At this time, I feel comfortable discussing my concerns with [name redacted], my General Manager, should he wish to inquire.
[28] On July 14, 2020, the City’s Senior HR Advisor asked Mr. Hewitt to provide more information about the medical leave and the complaint about the Supervisor. Around the same time, the Senior HR Advisor went on leave and handed conduct of the Investigation to the HR Manager.
[29] Regarding the medical leave, the City asked Mr. Hewitt to have his doctor fill out a medical questionnaire. The questionnaire asks the doctor to address the nature of Mr. Hewitt’s condition/illness that is preventing him from reporting to work; how long he has suffered from the current medical condition/illness; whether the events of July 10 were a contributing cause to Mr. Hewitt’s current absence from work; what current restrictions/limitations are preventing him from returning to work in any capacity; and his prognosis for full or partial recovery and return to work.
[30] Regarding the complaint about the Supervisor, the City asked Mr. Hewitt to provide specific details regarding his allegations in writing, and to contact the General Manager to discuss his concerns further.
[31] On July 31, 2020, the doctor provided a response to the medical questionnaire. Below, I reproduce key statements in his response.
Mr Hewitt is experiencing anxiety secondary to a hostile work environment precipitated by his concerns that contracts have been awarded for ulterior motives.
Mr Hewitt’s current medical condition was abruptly precipitated by circumstances at the meeting on 10 July when he realized that his concerns were being used against him.
The events of the July 10 meeting were definitely contributory but the circumstances leading up to the July 10 meeting had been brewing for over 8 years since the facility operations manager’s activities came to his attention.
Mr Hewitt is presently overwhelmed by the circumstances that have led to him taking a leave of absence. He is unfocused and unable to concentrate and would be a liability under the circumstances to be operating in the capacity that he usually holds. I appreciate that in the past he has served this position exceptionally well, as you have noted, but the circumstances have changed and he would no longer be able to serve his position with the same ability.
Mr Hewitt’s prognosis is dependent on circumstances at Civic Lands and Facilities, City of Coquitlam being reviewed and his concerns being answered.
Presently Mr Hewitt is unable to return to work and the City can expect him to return when the environment in which he was working has been rectified.
[32] The City says that it reviewed the Doctor’s response to the questionnaire and determined that it could reasonably accommodate Mr. Hewitt’s return to work. The City invited Mr. Hewitt to attend a meeting at the HR offices to discuss the details in person. The City provided Mr. Hewitt one day’s notice. Mr. Hewitt advised the City that he would discuss the invitation with the Doctor and his lawyer.
[33] The City’s next email to Mr. Hewitt advised that the meeting had been rescheduled to September 3, 2020, to give him more notice. The City provided an agenda for the meeting that included the medical questionnaire, return to work, reporting relationship to the Supervisor, and the pending Investigation and expected outcome. On the same day, September 1, 2020, Mr. Hewitt indicated that he is not well and “in no condition to return to work,” that the Doctor is monitoring his treatment, and he has scheduled counselling services.
[34] Meanwhile, on August 16, 2020, Mr. Hewitt provided the City with more details regarding his complaint about the Supervisor. In his thirty-eight-page formal complaint, Mr. Hewitt cites a violation of the City’s Respectful Workplace Policy that prohibits personal harassment and bullying, other concerns, and wrongdoing on the part of the Supervisor including “questionable dealings” and refers to himself as a whistleblower.
[35] On August 27, 2020, the General Manager wrote to Mr. Hewitt and advised that he had read the complaint regarding the Supervisor and will investigate “with careful attention and in confidentiality.” He also noted that it would be handled separately from any ongoing issues involving HR.
[36] On September 2, 2020, the City’s HR Manager wrote to Mr. Hewitt as follows,
The medical information we have received in response to our medical questionnaire indicates your absence is in relation to workplace issues, stemming in part from your letter of complaint to [General Manager]. While I can appreciate this took a lot of courage for you to forward to [General Manager], there does not appear to be a clear connection to your continued leave due to sick. In addition, you left abruptly following an investigative meeting without notice or having previously disclosed an underlying medical condition. At this time, the medical information we have is insufficient to continue paid sick leave benefits without 1) further and better medical which at the City’s discretion, may include an independent medical examination; and 2) a meeting with the City where we can better understand your concerns and how the City is able to support your return.
[as written]
[37] The HR Manager further advised Mr. Hewitt that the City expects him to attend a meeting to discuss his concerns and support his return to work. The City suggested that Mr. Hewitt consult with the Union and requested that a Union representative attend the meeting. The same day, Mr. Hewitt advised that he did not feel well enough to attend the meeting due to anxiety and mild depression. At the same time, he indicated that he would be willing to participate in an independent medical examination.
[38] On September 4, 2020, Mr. Hewitt provided the City with an update. He wrote:
I understand that you are trying to support my return. Unfortunately, I’m not ready at this time, just the thought of coming in exacerbates my anxiety. My health is my main priority and I’m working on it. I hope the attached letter (below) from my doctor supports continued sick leave benefits.
[39] The Doctor’s September 4, 2020, medical note states:
This gentleman has ongoing anxiety secondary to a work environment in which he found himself to be at odds.
He is presently on medication but the overriding factor in his treatment is distancing himself from the environment which precipitated his condition in the first place.
It is my advice that he seek counselling, continue with the medication and refrain from exposing him to the environment at which he is at odds. Returning him to said environment will only set him back.
I believe that you wish him to see another physician for his or her assessment. I have no problem with that suggestion as the mood assessment scores that I have conducted will be replicated by another physician.
In summary then, I am advocating very strongly that he does not return to the workplace until he has confirmation that the work environment has been remedied.
[as written]
[40] The City’s Disability Manager says that he subsequently referred Mr. Hewitt’s medical situation to a registered psychologist for an independent medical evaluation because the information received up to that point was, in his view, brief, vague, and did not identify what the workplace issues or barriers were or how they should be remedied. On September 13, 2020, the psychologist prepared a report that recommended encouraging Mr. Hewit to begin counselling. He also noted that, “… I do not know of any successful treatment of anxiety that involves wholescale avoidance of the feared stimulus (workplace). This, however, appears to be a significant part of his current treatment.”
[41] The HR Manager says that she completed the Investigation into Mr. Hewitt’s conduct in September 2020 and concluded that he had coached the Nephew which placed him in a conflict of interest based on the City’s Code of Conduct. The HR Manager says she consulted with the General Manager about the appropriate course of action, and he decided to give Mr. Hewitt the benefit of the doubt with respect to his intentions. The City issued Mr. Hewitt a non- disciplinary letter of expectations on September 16, 2020. The City denies that the decision to issue a letter of expectations had anything to do with Mr. Hewitt’s relationship with the Nephew. The City says that the Union did not grieve the letter of expectations.
[42] I reproduce the closing paragraph of the letter of expectations for context,
Lee, I choose to believe you were unaware of the inappropriateness of your actions and had no ill intent when discussing a pending investigation with an employee of which you have a personal relationship with. I trust you now understand the perception of your actions and the precarious position that management could be put into should the integrity of an investigation be called into question.
[43] Mr. Hewitt denies engaging in inappropriate conduct and disagrees with the conclusion of the Investigation. He asserts that the Investigation itself was without justification and that he was being punished due to his family relationship with the Nephew.
[44] The City’s communication to Mr. Hewitt on September 16, 2020, also stated that the City considered the matter related to the Nephew concluded and that it was prepared to take certain steps to support his return to work. Specifically, the HR Manager proposed that, upon his return to work, Mr. Hewitt would report to a different manager [Manager] while his complaint about the Supervisor was being investigated by the General Manager. The Manager was situated in a different building, which the City believed would significantly reduce the likelihood that Mr. Hewitt would come into contact with the Supervisor. The City also expressed hope that Mr. Hewitt’s counselling sessions were helpful and would put him in a better position to return to work.
[45] On September 28, 2020, Mr. Hewitt advised the City that his first counselling session was postponed and that he had an unrelated surgery scheduled for October 6, 2022. He also asked about forms to file a WorkSafeBC claim. Mr. Hewitt says he was not ready to return to work.
[46] On October 25, 2020, the City followed up on the anticipated a two-week recovery period for the surgery. The HR Manager wrote,
…we have removed the workplace issues that you have cited as being barriers to your return. We have work available for you and would request that you report for work for the start of your shift Wednesday, October 28, 2020. Should you have any prolonged limitations or restrictions due to your surgical procedure that we should be aware of, please let me know…
[47] In response, Mr. Hewitt advised that he would not be reporting to work on October 28 because he is still dealing with anxiety and depression and cannot function appropriately to complete work tasks at this time. He asked about the progress of the investigation into his complaint about the Supervisor and stated that “no one can expect myself to functionally do my job with this hanging over my head.” He also stated that reporting to the Manager “would be better” but that he would not feel safe to return to work because he might run into the Supervisor or attend a meeting with him. In short, Mr. Hewitt did not believe the City had sufficiently answered his concerns or rectified the working environment to allow him to return to work.
[48] Mr. Hewitt’s next communication to the City was sent by counsel on his behalf. On December 16, 2020, counsel advised the HR Manager that he had been retained to assist Mr. Hewitt in resolving issues around his medical leave and accommodations. Counsel stated that a significant medical barrier to Mr. Hewitt’s return to work remains unaddressed, meaning the complaint about the Supervisor. Counsel and the HR Manager exchanged several emails. Ultimately the HR Manager wrote directly to Mr. Hewitt on January 25, 2021, and advised that she would not be communicating with him via counsel any further and reminded him that while he remains a City employee, the Union represents him. The City invited Mr. Hewitt to a meeting the next day to discuss his return to work. The HR Manager described it as “simply a conversation and an opportunity to hear from you any concerns you may have and for us to lay out the plan to support your return.” She also repeated the City’s view that it had removed any workplace barriers.
[49] A meeting took place on January 26, 2021, to discuss the outcome of Mr. Hewitt’s complaint about the Supervisor and his return to work. The HR Manager, Disability Manager, Mr. Hewitt, a Union representative, and the Manager were in attendance. The parties have divergent perspectives on what happened.
[50] Mr. Hewitt says that the City pressured him to return to work but refused to provide him with any information about the workplace environment or any steps the City had taken to address the complaint about the Supervisor. Mr. Hewitt says that he continued to advise the City that he did not feel it was safe to return to work.
[51] The City says that during the meeting, Mr. Hewitt demanded to know the outcome of the investigation into the Supervisor, and the HR Manager explained that Mr. Hewitt would not be privy to this information because it was the personal and confidential information of another City employee. The City says that Mr. Hewitt suggested that as long as the Supervisor remained employed by the City he could not return to work. Mr. Hewitt denies this. The City says they discussed the option of relocating Mr. Hewitt’s physical workspace to minimize or eliminate contact with the Supervisor. However, Mr. Hewitt maintained his view that the barriers remained, and he would not return to work.
[52] On January 29, 2021, Mr. Hewitt wrote to the HR Manager and provided a new medical note from the Doctor. Mr. Hewitt wrote, “In my opinion, the workplace barriers have not been removed. My medical ability to return to work is dependent on my concerns about [the Supervisor] being addressed.” Mr. Hewitt expressed concerns including about how certain workflows, decisions, and meetings would work without involvement of the Supervisor. He further indicated that that he had applied for Employment Insurance [EI] and was proceeding with a human rights complaint with the support of his counsel to address his concerns.
[53] The Doctor’s January 28, 2021, note attached to the email was prepared to support Mr. Hewitt’s application for EI. It states:
This gentleman has not worked at the city of Coquitlam since July 10, 2020 due to a work environment in which he found himself at odds because of alleged and strongly suspected managerial financial inconsistencies.
He has worked for the city of Coquitlam for 26 years and has been a highly respected and conscientious worker in the civic lands and facilities department. He presented his allegations to the board who have subsequently declined this to date. Needless to say, the situation has caused a lot of anxiety, depression and insomnia for my patient. Subsequently he is unable to work in this hostile work environment as they have taken no concrete measures to correct the situation, suggesting that he return to work still working in the same department as the manager he has accused of misappropriating city funds.
This is presently being reviewed by human resources and a legal advisor but in the interim he requires El to bridge the time between now and a conclusion to this unfortunate situation.
[54] In January 2021, Mr. Hewitt moved from being on a sick leave to leave without pay.
[55] On February 8, 2021, the City’s HR Manager sent a letter to Mr. Hewitt as a follow-up to the January 26 meeting and the January 28 medical note. The City advised that it has taken “extraordinary steps” to remove the workplace barriers that have impeded his ability to return to work, including temporary reporting to the Manager and moving his physical workspace while the complaint about the Supervisor was under investigation. The letter further advised that the General Manager had completed his investigation into Mr. Hewitt’s complaint about the Supervisor in February 2021. The City says that, after speaking to various City employees and witnesses, Mr. Hewitt’s allegations were not substantiated. In his affidavit, the General Manager provides details on how he reached his conclusion.
[56] Regarding the investigation, the HR Manager wrote,
Due to privacy reasons, we are not at liberty to discuss the specific steps associated with your complaint, we can tell you that we have taken a thoughtful and thorough review and have concluded no wrongdoing on the part of [the Supervisor]. We consider this matter concluded.
[57] The City also indicated that, although there continues to be “no substantive medical information” to support Mr. Hewitt’s continued absence due to medical reasons, they agreed to grant him a three-month unpaid leave of absence. The City says they agreed to grant the leave because Mr. Hewitt had indicated during the January 26, 2021, meeting that he needed time to consider his options.
[58] Mr. Hewitt responded on February 11, 2021. It is apparent that he disagreed with the outcome of the Investigation. For example, he asserted that the Investigation was “not completed” and “not thorough.” He also concluded the email by stating that, “For my health, I must depart. For my conscience, I have informed the City. My only course of action is to now consider retirement and proceed with a complaint to the Human Rights Tribunal.”
[59] The parties exchanged further emails and on February 19, 2021, the City asked Mr. Hewitt to clarify his intention to 1) retire; 2) resign; 3) return to work; 4) remain on leave of absence without pay for three months as outlined in the City’s February 8 letter. On February 19, 2021, Mr. Hewitt advised the City that he did not plan on resigning or retiring and that his comment that he “must depart” was in reference to staying away from work and dealing with his health. He concluded his email by stating, “I’m dealing with my health and would appreciate if you left me alone.”
[60] On April 14, 2021, Mr. Hewitt provided the City with notice of his resignation effective May 1, 2021. He stated that he felt he was forced to retire because he could not return to a toxic work environment that has not been resolved. Mr. Hewitt also wrote that he was facing financial challenges due to no employment income and his benefits expiring and had no choice but to access retirement benefits in circumstances where the City was not accommodating him.
[61] The City accepted Mr. Hewitt’s notice of retirement effective May 1, 2021. The Union did not grieve Mr. Hewitt’s retirement.
[62] Mr. Hewitt filed this complaint with the Tribunal on June 23, 2021.
IV DECISION
[63] The City applies to dismiss Mr. Hewitt’s complaint on the basis that it has no reasonable prospect of success: Code, s. 27(1)(c). The onus is on the City to establish the basis for dismissal.
[64] Section 27(1)(c) is part of the Tribunal’s gate-keeping function. It allows the Tribunal to remove complaints which do not warrant the time and expense of a hearing.
[65] The Tribunal does not make findings of fact under s. 27(1)(c). Instead, the Tribunal looks at the evidence to decide whether “there is no reasonable prospect that findings of fact that would support the complaint could be made on a balance of probabilities after a full hearing of the evidence”: Berezoutskaia v. British Columbia (Human Rights Tribunal), 2006 BCCA 95 at para. 22, leave to appeal ref’d [2006] SCCA No. 171. The Tribunal must base its decision on the materials filed by the parties, and not on speculation about what evidence may be filed at the hearing: University of British Columbia v. Chan,2013 BCSC 942 at para. 77.
[66] A dismissal application is not the same as a hearing: Lord v. Fraser Health Authority,2021 BCSC 2176 at para. 20; SEPQA v. Canadian Human Rights Commission,[1989] 2 SCR 879 at 899. The threshold to advance a complaint to a hearing is low. In a dismissal application, a complainant does not have to prove their complaint or show the Tribunal all the evidence they may introduce at a hearing. They only have to show that the evidence takes their complaint out of the realm of conjecture: Workers’ Compensation Appeal Tribunal v. Hill, 2011 BCCA 49 [Hill] at para. 27.
[67] Many human rights complaints raise issues of credibility. This is not, by itself, a sufficient reason to deny an application to dismiss: Evans v. University of British Columbia, 2008 BCSC 1026 at para. 34. However, if there are foundational or key issues of credibility, the complaint must go to a hearing: Francescutti v. Vancouver (City), 2017 BCCA 242 at para 67.
[68] To prove his complaint at a hearing, Mr. Hewitt will have to prove that he has a characteristic protected by the Code, he was adversely impacted in employment, and his protected characteristic was a factor in the adverse impact: Moore v. British Columbia (Education), 2012 SCC 61 at para. 33. If he did that, the burden would shift to the City to justify the impact as a bona fide occupational requirement [BFOR]. If the impact is justified, there is no discrimination.
[69] To justify the adverse impacts at a hearing, the City would have to prove that: (1) they adopted the standard for a purpose rationally connected to the performance of the job, (2) they adopted the standard in an honest and good faith belief that it was necessary to the fulfillment of that legitimate purpose; and (3) the standard is reasonably necessary to the accomplishment of that legitimate purpose. This third element encompasses their duty to accommodate Mr. Hewitt to the point of undue hardship: British Columbia (Public Service Employee Relations Commission) v. British Columbia Government and Service Employees’ Union (Meiorin Grievance), [1999] 3 SCR 3 [Meiorin] at para. 54.
[70] The City argues that Mr. Hewitt has no reasonable prospect of proving discrimination in employment based on family status or disability. In support of its application, the City provided affidavits from:
a. The HR Manager who took conduct of Mr. Hewitt’s file in July 2020.
b. The Disability Manager who became involved in Mr. Hewitt’s case in September 2020.
c. The General Manager during the events set out in the complaint.
[71] Mr. Hewitt disagrees and asserts that he has taken his allegations out of the realm of conjecture and the complaint ought to proceed to a full hearing. He provided his own affidavit in support of his position.
[72] I begin with the family status allegation.
A. Family Status Allegation
[73] There is no dispute that Mr. Hewitt and the Nephew are in a family relationship and therefore, the protected characteristic of “family status” is engaged. There is also no dispute that the City asked Mr. Hewitt to attend a meeting on July 10, 2020, because the City was concerned that he had coached the Nephew during the investigation into his conduct; and following the conclusion of the Investigation, the City issued a letter of expectations to Mr. Hewitt on September 16, 2020.
[74] The parties disagree; however, on (1) whether the July 10 meeting and letter of expectations amount to an adverse impact under the Code, and (2) whether there is sufficient evidence to establish that the familial relationship between Mr. Hewitt and the Nephew factored into the alleged adverse impacts.
[75] The City argues that the July 10 meeting and letter of expectations do not amount to an adverse impact under the Code. The City further argues that, in any event, Mr. Hewitt improperly coached an employee during a confidential investigation contrary to City policies, and it treated Mr. Hewitt the same as any other employee in the same circumstances. Put differently, the City argues that Mr. Hewitt’s relationship with the Nephew was immaterial to the action it took.
[76] Mr. Hewitt asserts that the July 10 meeting and letter of expectations were disciplinary and he experienced adverse impacts as a result. Mr. Hewitt denies coaching the Nephew and asserts that there is no basis to believe he did so. He argues that the only connection between him and the investigation into the Nephew is that they are related. Mr. Hewitt asserts that the Supervisor used the situation with the Nephew as an opportunity to bully and intimidate him.
Adverse Impact
[77] I begin with the question of whether Mr. Hewitt has no reasonable prospect of establishing an adverse impact in relation to the July 10 meeting and letter of expectations.
[78] The City argues that scheduling an investigative meeting to assess a misconduct allegation does not, in and of itself, amount to an adverse impact within the meaning of the Code. The City asserts that employers are allowed – and often obligated – to hold such meetings to establish facts, ensure fairness, and fulfill legal obligations. While the City acknowledges that Mr. Hewitt may have felt frustrated about attending; it argues that, in this case, the meeting does not constitute an adverse impact for the purposes of the Code.
[79] Similarly, the City argues that a letter of expectations is, by definition and nature, not disciplinary. It asserts that the letter’s purpose is to clearly outline the employee’s responsibilities in relation to conflicts of interest and argues that non-disciplinary communication of reasonable expectations is a standard managerial duty, and does not, in this case, amount to an adverse impact for the purposes of the Code. The City relies on the arbitral decision Ontario Public Service Employees Union (Ceballos) v Ontario (Solicitor General), 2021 CanLII 127111 (ON GSB). The City also relies on WCAT’s February 18, 2022, decision at paragraph 23 that states, “[t]he worker was not disciplined for any misconduct, but received a letter of expectations following the investigation.”
[80] Regarding the July 10 meeting, Mr. Hewitt asserts that his Union representative explained that it was a “disciplinary meeting” in regard to Mr. Hewitt giving investigation advice to the Nephew. Mr. Hewitt says that the meeting caused his anxiety to spike. Mr. Hewitt says that he left the meeting and went to see his doctor due to the level of anxiety he experienced during the meeting.
[81] Regarding the letter of expectations, Mr. Hewitt argues that it is disciplinary in nature. Alternatively, he argues that if the Tribunal does not find it to be disciplinary, it nevertheless adversely impacted him because it states misconduct at the beginning and end of the letter, implies negative consequences, and caused undue strain on his mental health. Mr. Hewitt relies on the arbitral decision Central Okanagan Public Schools v Canadian Union of Public Employees, Local 2523, 2022 CanLII 91057 (BC LA) at para 211 in support of his position that the letter is inherently disciplinary because it asserts that he had been involved in culpable misconduct. In his affidavit, Mr. Hewitt states specifically that the letter was embarrassing and harmed his reputation because it questioned his integrity and honesty. He also says that it was being used as a stepping stone to fire him and re-triggered his anxiety and depression.
[82] For the following reasons, the City has not persuaded me that Mr. Hewitt has no reasonable prospect of establishing an adverse impact as contemplated by the Code.
[83] I agree that an investigative meeting to assess a misconduct allegation, in and of itself, is unlikely to amount to an adverse impact within the meaning of the Code. However, Mr. Hewitt provides sworn evidence about the high level of anxiety he experienced during the July 10 meeting. He describes his chest becoming heavy, feelings of agitation, and being unable to cope with the increased anxiety. The evidence before me is that he left the meeting prematurely then went to his doctor’s office. The doctor’s July 10, 2020, medical note recommended a four-week leave of absence, and the doctor’s subsequent report states that Mr. Hewitt’s condition as of July 31, 2020, was precipitated by circumstances at the July 10 meeting.
[84] Based on the totality of Mr. Hewitt’s evidence about the negative impact of the July 10 meeting, including the medical evidence that it impacted his ability to work for at least several weeks, I am satisfied that Mr. Hewitt has met the low threshold required to take the alleged adverse impact out of the realm of speculation.
[85] Regarding the letter of expectations, it is not necessary for me to determine whether it amounts to “discipline.” Instead, I focus on the question of whether Mr. Hewitt has no reasonable prospect of establishing that it amounts to an adverse impact in employment under the Code.
[86] Mr. Hewitt provides sworn evidence that:
a. the letter was signed by the Supervisor, who was being investigated based on Mr. Hewitt’s concerns,
b. the letter was embarrassing and he felt it harmed his reputation,
c. he believed that the letter questioned his integrity and honesty,
d. he felt that he was being disciplined for something he did not do,
e. he felt the letter was being used as a stepping stone to fire him; and
f. the letter re-triggered his anxiety and depression.
[87] I agree that communicating reasonable expectations to an employee, in and of itself, is unlikely to amount to an adverse impact within the meaning of the Code. However, in this case, Mr. Hewitt alleges that the Supervisor had engaged in bullying tactics for many years, could use the letter as a stepping stone to get rid of him, and this worsened his mental health. I understand that the City disputes the history of bullying and WCAT has already concluded that the bullying allegations are unsubstantiated. However, where the City does not explicitly deny that the letter could be referenced in the future to support termination of Mr. Hewitt’s employment, and where Mr. Hewitt says that the letter triggered a high level of anxiety that prevented him from returning work, I am satisfied that he has again met the low threshold required to take the alleged adverse impact out of the realm of speculation.
[88] Next, I turn to the question of whether Mr. Hewitt has no reasonable prospect of establishing that his family relationship to the Nephew was a factor in the alleged adverse impacts.
Connection
[89] The City denies that the decision to initiate the Investigation and issue the letter of expectations was influenced by Mr. Hewitt’s relationship with the Nephew. It maintains that its actions were based on a non-discriminatory rationale – specifically a concern, later confirmed, that Mr. Hewitt had improperly coached another City employee during a confidential investigation while serving in a supervisory role and position of trust. The City asserts that had Mr. Hewitt coached any other City employee, he would have received the same letter of expectations, or potentially disciplinary action, depending on the circumstances. In all these circumstances, the City argues that Mr. Hewitt has no reasonable prospect of establishing that his family status was a factor in the City’s conduct.
[90] Mr. Hewitt disagrees and argues that the only connection between him and the Nephew’s investigation is that they are related. Put differently, Mr. Hewitt argues that there is no evidence of any other reason. According to Mr. Hewitt, the City relies on “a single vague statement and an assertion of what the outcome was.” Presumably, Mr. Hewitt is referring to the HR Manager’s first affidavit provided with the dismissal application where she wrote,
In or around September 2020, I completed the Investigation and concluded that the Complainant had coached Mr. Hewitt-Lawrence during that investigation by the City, which placed the Complainant in a conflict of interest.
[91] In short, Mr. Hewitt argues that the dismissal application asserts a conclusion without providing evidence of misconduct or details of an investigation. In his view, this suggests that what the City provided with the application is the entirety of their investigation.
[92] In direct response to Mr. Hewitt’s assertion that what it provided in the application must be the entirety of their investigation, the City provided a second affidavit from the HR Manager. The HR Manager provides the following additional details,
…the City’s concern and reason for the July 10, 2020 meeting arose out of answers that the Complainant’s nephew, [name redacted] (the “Nephew”) provided during an investigation into his misconduct on June 22, 2020. Specifically, I was advised, and verily believe to be true, that the Nephew admitted during the investigation that he and the Complainant had a discussion concerning the investigation into him, but did not provide details.
[93] She also says that she “was advised, and verily believe to be true, that [name redacted], the Facilities Management Coordinator at the City at the time, had inadvertently disclosed an e-mail and had a conversation with the Nephew regarding the investigation.
[94] The redacted Investigation Analysis document attached to the HR Manager’s second affidavit indicates that on June 8, 2020, the Facilities Management Coordinator [Coordinator] “reported concerns to HR, however, accidentally sent email to another Supervisor, Lee Hewitt, who is also [Nephew’s] uncle.” And on June 9, 2020, the Coordinator and Mr. Hewitt “had conversation regarding email.” And [Coordinator] “disclosed matter concerning [Nephew] with details including missed time.” The entry on June 10, 2020, indicates that Mr. Hewitt shared with the Coordinator that he had a conversation with the Nephew. Specifically, that Mr. Hewitt said he “had to tell his nephew as he was going to use [Coordinator/City as a reference for a property.” The entry on June 22, 2020, indicates that during an investigative meeting with the Nephew,
[Nephew] was asked if he had a conversation with Mr. Hewitt between when he was notified of the meeting and the present time. He said he did not talk to Mr. Hewitt as it is an issue he was taking on himself. He repeated this. When he was confronted with information that Mr. Hewitt told [Coordinator] he had spoken to [Nephew] before this meeting, only then did [Nephew] admit he spoke with Mr. Hewitt but maintained the conversation was private and refused to provide further details.
[95] For the following reasons, I am persuaded that Mr. Hewitt has no reasonable prospect of establishing that his family status was a factor in the alleged adverse impacts. On the contrary, I am convinced that the City is reasonably certain to establish a non-discriminatory explanation.
[96] To be successful, Mr. Hewitt does not need to prove that his family status was the sole or primary factor, so long as it is a factor in the adverse impact. At the same time, it is well established that having a protected characteristic and experiencing an adverse impact is insufficient, on its own, to establish the required connection to prove discrimination. To be successful Mr. Hewitt, would need to provide some evidence to support a reasonable inference that the City treated him adversely, at least in part, due his relationship with the Nephew.
[97] The HR Manager provided a copy of Mr. Hewitt’s 38-page complaint about the Supervisor with her first affidavit. I agree with the City that the following statements at page 19 of that complaint are consistent with the information contained in the Investigation Analysis regarding the inadvertent disclosure of information concerning the Nephew’s investigation by the Coordinator to Mr. Hewitt; and the Nephew’s answers and comments during the investigation, including that he had conversations with Mr. Hewitt about his situation:
To be clear on this matter, Lee Hewitt gave no inside information to his nephew [name redacted]. The information shared is on the City CorQboard and available to all City Staff. Lee shared with [Nephew] information that he would share with any staff; being City policy and procedures. The incident with [Nephew] had questionable concerns and actions:
…
Inappropriate Training: … [Nephew] was advised to pick up keys for this facility and given no training…
Working Alone: … [Nephew] was working alone during a midnight shift at the [location redacted] with no call-in system in place.
Respectful Work Place Policy: [Coordinator] had sent Lee Hewitt an email that was intended to be directed to HR, in regards to [Nephew] (see Appendix I). Coordinator to Coordinator, Lee politely asked [Coordinator] what was going on. [Coordinator] advised Lee that he did not believe what [Nephew] was saying in regards to completing work tasks and that he really laid into [Nephew]. Upon discussion with [Nephew], Lee learned that [Coordinator] was extremely aggressive and using foul language. This was the first time that [Nephew] ever meet [Coordinator]. Lee advised [Nephew] that this was inappropriate behavior for a Supervisor.
[98] It is not my role in this decision to assess the accuracy and validity of the City’s Investigation. However, I agree with the City that the above evidence supports its assertion of a non-discriminatory basis for the Investigation and later conclusion that there was a breach of the City’s conflict of interest policy.
[99] The City also provided a copy of the September 15, 2021, Review Decision from WorkSafeBC, where the Review Division wrote at page 3:
The first incident occurred in June 2020. The worker’s nephew had moved in with the worker, and was working for the employer. The worker and his nephew spoke about working alone at night, and the worker advised his nephew that he should have a call-in system in place for his safety. They also discussed the kind of training that the nephew should have in case of various incidents. The employer then terminated the worker’s nephew’s employment.
[100] This information in the Review Division decision is consistent with what Mr. Hewitt wrote in his complaint about the Supervisor regarding his conversations with the Nephew as well as the City’s Investigation Analysis document. When I consider all of this evidence together, I am persuaded that it supports a conclusion that the City is reasonably certain to establish that the Investigation was initiated for reasons unrelated to the family relationship but rather based on a genuine concern about inappropriate conversations between Mr. Hewitt and the Nephew during an investigation into the Nephew’s conduct.
[101] Mr. Hewitt’s response to the dismissal application focuses on his assertion that the City does not have evidence to back up the HR Manager’s statements in her first affidavit. Based on the information contained in the reply, I do not find this a persuasive argument. I also observe that Mr. Hewitt does not point to any other evidence of capable of supporting a connection between his protected characteristic and the alleged adverse impacts.
[102] As set out above, it is not enough to say that a person’s protected characteristic “must have been” a factor in adverse treatment. There needs to be some evidence that raises the allegation from a mere possibility. In this case, Mr. Hewitt has not provided such evidence to raise the alleged connection out of the realm of based on speculation.
[103] Where Mr. Hewitt’s allegation is based on speculation and the City is reasonably certain to establish a non-discriminatory explanation for its conduct, I am satisfied that the family status allegation has no reasonable prospect of success. I dismiss it on this basis.
A. Disability Allegations
[104] I begin by noting that in the complaint Mr. Hewitt selected the protected grounds of physical and mental disability. However, he does not specify a physical disability in the complaint or in his response to the dismissal application. In these circumstances, I focus my analysis on the alleged mental disability.
[105] There is no dispute that Mr. Hewitt did not return to work following the July 10, 2020, meeting and retired as of May 1, 2021. The parties disagree; however, on whether the evidence supports a conclusion that Mr. Hewitt had a disability for the purposes of the Code during this period, and whether the City discharged its duty to accommodate Mr. Hewitt.
[106] The City argues that, given the nature of the alleged disability, Mr. Hewitt has no reasonable prospect of proving discrimination in employment based on disability. The City further argues that it reasonably and appropriately addressed any limitations or restrictions that Mr. Hewitt had; the medical information Mr. Hewitt provided was insufficient to substantiate his continued absence from work; and ultimately Mr. Hewitt frustrated the accommodation process.
[107] Mr. Hewitt disagrees and argues that the evidence shows that he had a disability under the Code, he actively engaged in the accommodation process, and it was the City who failed in its duty to accommodate him, leaving him no choice but to retire.
1. Mental Disability
[108] The City’s primary argument related to the disability allegations is that Mr. Hewitt has no reasonable prospect of proving discrimination because there is no reasonable prospect of establishing that he had a disability for the purposes of the Code during the relevant period. The City argues that the medical evidence, at best, establishes that Mr. Hewitt had unspecified “anxiety secondary to a hostile work environment.” The City asserts that the medical information focuses on Mr. Hewitt’s purported need to distance himself from “a work environment in which he found himself at odds” and his alleged inability to return to work is centred on his subjective impression of a “toxic work environment” rather than on a medical restriction or limitation.
[109] The City points to several cases where the Tribunal has held that workplace stress resulting from an employer investigating alleged work performance problems, or from a problematic relationship with a supervisor, is not alone sufficient to constitute a disability for Code purposes including Matheson v. School District No. 53 (Okanagan Similkameen) and Collis, 2009 BCHRT 112, and Mandryk v. Anmore (No. 3), 2015 BCHRT 108.
[110] In response, Mr. Hewitt argues that the evidence shows that he had a disability. In his affidavit, he says he gradually started to develop anxiety and depression from 2015 onward but was not diagnosed until 2020. He relies on the four medical notes that he provided the City on July 10, 2020; July 31, 2020; September 4, 2020; and January 28, 2021. Mr. Hewitt argues that the medical notes state his disability and medical limitations, namely, anxiety and that he should not return to work yet. In addition, Mr. Hewitt says that his counsellor diagnosed him with “severe anxiety and major depression” on October 9, 2020. He also highlights that the City’s psychologist who did the independent medical evaluation did not question his disability and advised the City to encourage counselling. Mr. Hewitt further relies on the emails he sent to the City where he informed the City that he had anxiety and depression and was fearful of returning. Lastly, Mr. Hewitt says he attended counselling and was prescribed medication.
[111] For the following reasons, the City has not persuaded me that Mr. Hewitt has no reasonable prospect of establishing a disability for the purposes of the Code.
[112] The Code does not define “disability.” The Tribunal interprets the term liberally to achieve the purposes of the Code: British Columbia Human Rights Tribunal v. Schrenk, 2017 SCC 62 at para. 31. The purposes of the Code are to remove barriers that people face in certain areas of social life because of their disabilities. Those barriers may arise from actual functional limitations associated with a disability, or society’s response to the disability. People with disabilities have long faced exclusion and marginalization based on stereotype, ignorance, and fear: Eldridge v. British Columbia (Attorney General), [1997] 3 SCR 624. It is that exclusion and marginalization, founded on generalizations and prejudice, which the Code seeks to eliminate.
[113] To decide whether a condition is a “disability,” the Tribunal generally considers the degree of impairment and any functional limitations, and any social construction of disability: Morris v. BC Rail, 2003 BCHRT 14 at para. 214. It considers factors like “whether the condition entails a certain measure of severity, permanence and persistence”: Viswanathapuram v. Canadian Alliance of Physiotherapy Regulators, 2017 BCHRT 29 at para. 40.
[114] Mr. Hewitt has provided medical evidence that indicates he was experiencing anxiety which impacted his ability to attend work for many months. The documentation also confirms that he was undergoing treatment in the form of counselling and prescribed medication. I also confirm that his counsellor’s notes from October 2020 state that Mr. Hewitt’s scores on the Burns Anxiety Inventory indicate “severe symptoms of anxiety”, and his score on the PHQ9 indicate symptoms of “major depression with mild severity.”
[115] I acknowledge that the medical evidence indicates that Mr. Hewitt’s symptoms were caused and/or triggered by the workplace situation. However, in my view, Mr. Hewitt’s evidence suggests that he was experiencing more than frustration and/or workplace stress. I reach this conclusion based on the evidence regarding the severity and duration of his symptoms. Ultimately, I am satisfied, on the low threshold required at this stage, that Mr. Hewitt has taken his assertion that he has a mental disability out of the realm of speculation and conjecture.
[116] In circumstances where the parties did not focus on the adverse impact and connection, I assume without deciding that these elements are out of the realm of conjecture and turn next to the question of whether the City is reasonably certain to establish a defence at a hearing.
Defence: Bona Fide Occupation Requirement
[117] The City’s secondary argument is that the disability allegations have no reasonable prospect of success because it is reasonably certain to prove a defence. Specifically, the City says that the evidence supports a conclusion that it reasonably accommodated Mr. Hewitt, and ultimately Mr. Hewitt frustrated the accommodation process.
[118] Mr. Hewitt disagrees. He argues that the evidence shows that the City failed to provide the accommodations recommended by his doctor, refused to meaningfully engage in an accommodation process with him, and he was forced to retire as a result.
[119] For the following reasons, I conclude that the City is reasonably certain to establish a defence at the hearing and therefore the disability allegations have no reasonable prospect of success.
[120] In the application, the City argues that it is reasonably certain to satisfy all parts of the Meiorin test. Mr. Hewitt’s response addresses the third part only. Based on the evidence provided by the City, I’m persuaded they are reasonably certain to prove the first two elements” For this reason, I focus my analysis on the third part of the Meiorin test, namely whether the City is reasonably certain to provide that it accommodated Mr. Hewitt to the point of undue hardship.
[121] Based on Mr. Hewitt’s allegations, there are two distinct periods over which he alleges a failure to accommodate. First, between July 2020 and January 2021 when he was on a paid medical leave of absence, and second, between January and April 2021 when he was on an unpaid leave of absence until he gave notice of his retirement.
1. July 2020 to January 2021
[122] Mr. Hewitt alleges that during this period the City failed in its duty to accommodate him by pressuring him to return to work without addressing the issues in the workplace. Mr. Hewitt relies on the accommodations he says were set out by his doctor in answer to the City’s questionnaire, as well as his communications to the City that fear of the Supervisor was preventing him from returning to work and the lack of an update on his complaint about the Supervisor was also a barrier to his return to work.
[123] Mr. Hewitt also alleges that the City “flatly refused” to communicate with him in any way and indicated that it was “totally unwilling to proceed with any accommodations.” Mr. Hewitt refers specifically to a December 18, 2020, communication where he claims the City took the position that Mr. Hewitt would have to file a human rights complaint before it would deal with his accommodation in any way.
[124] In response, the City asserts that it is reasonably certain to establish that despite the limited medical information provided by Mr. Hewitt, it reasonably accommodated him during this period by allowing him to use his paid sick leave; it proposed reasonable and appropriate accommodations including reporting to the Manager and relocating his workspace while it was investigating his complaint; and, it only ceased communicating on Mr. Hewitt’s request.
[125] I begin with the accommodations that Mr. Hewitt argues were recommended by his doctor, but the City failed to address. Three out of the four medical notes were produced during this period. Below, I summarize the doctor’s recommendations in those notes.
[126] July 10, 2020: the doctor recommended a four-week leave of absence. He did not provide any other details.
[127] July 31, 2020: the doctor recommended a continued absence from work. He stated that Mr. Hewitt is unable to return to work, and the City can expect him to return “when the environment in which he was working has been rectified.” He does not explain what he means by rectifying the work environment. When asked to describe Mr. Hewitt’s “current restrictions/limitations that prevent him from returning to work in any capacity,” the doctor wrote:
Mr. Hewitt is presently overwhelmed by the circumstances that have led to him taking a leave of absence. He is unfocused and unable to concentrate and would be a liability under the circumstances to be operating in the capacity that he usually holds. I appreciate that in the past he has served this position exceptionally well, as you have noted, but the circumstances have changed and he would no longer be able to serve his position with the same ability.
[128] In his July 31, 2020, response, the doctor did not recommend specific accommodations that the City could put in place to address Mr. Hewitt’s limitations and restrictions such that Mr. Hewitt could return to work. Rather, the doctor wrote that Mr. Hewitt’s condition is temporary but “dependent on circumstances at Civic lands and facilities City of Coquitlam being reviewed and his concerns being answered.” The doctor did not provide any further details or make a specific recommendation on how to answer Mr. Hewitt’s concerns. The parties appear to agree that the doctor’s comments related to Mr. Hewitt’s concerns about the Supervisor which were later set out in detail in his August 16, 2020, complaint.
[129] September 4, 2020: the doctor recommended that Mr. Hewitt continue his absence from work. The doctor wrote that his advice to Mr. Hewitt was to distance himself from the environment which precipitated his condition (i.e., “the environment at which he is at odds”), seek counselling, and continue with medication. The doctor specifically recommended that Mr. Hewitt not return to the workplace “until he has confirmation that the work environment has been remedied.” The parties appear to agree that the doctor’s comments related to the August 16, 2020, complaint about the Supervisor and the City’s subsequent investigation. The doctor does not explain what he means by remedying the workplace, or suggest what, if any specific accommodations could be put in place to support Mr. Hewitt’s return to work pending the outcome of the investigation.
[130] I agree with the City that up to January 2021, the main accommodation requested by Mr. Hewitt and recommended by his doctor was for him to remain off work and seek treatment, including counselling and medication. There is no dispute that the City approved Mr. Hewitt’s paid medical leave of absence between July 2020 and January 2021.
[131] The other accommodation request, as I understand it, was for the City to complete its investigation into my Hewitt’s August 16 complaint about the Supervisor and provide an update to Mr. Hewitt. The related request to “rectify” the work environment appears to be premised on the investigation substantiating Mr. Hewitt’s concerns and disciplining the Supervisory accordingly.
[132] There is no dispute that while the City was continuing the investigation, it invited Mr. Hewitt to meet and discuss how to remove the barriers that were preventing him from returning to work. The City proposed several measures that it says were aimed at removing the workplace barriers identified by Mr. Hewitt including modifying his reporting structure and moving his physical workspace while his complaint about the Supervisor was under investigation. Mr. Hewitt declined to meet with the City and remained on a paid medical leave.
[133] Other than notice that he required unrelated surgery in October 2020, Mr. Hewitt did not provide further medical information to the City until January 2021. This means that when he declined to report to work following the surgery with the proposed accommodations in place, he did not provide further medical documentation to support his view that it would not be safe for him to return to work because he might run into the Supervisor or attend a meeting with him. Specifically, it means that when Mr. Hewitt stated on October 27, 2020, that the recommendation of reporting to the Manager “would be better” but he would still not feel safe to return, he did not provide any updated medical information or propose any other accommodations that would allow him to return to work. Rather, he suggested that he could not be expected to do his job while the investigation into the Supervisor was outstanding and declined to meet and discuss further.
[134] Mr. Hewitt’s assertion that the City “flatly refused” to communicate with or accommodate him absent a human rights complaint appears to be based on the communications that took place in December 2020 when he retained legal counsel to communicate with the City on his behalf. As I read the communications provided by the parties, the City declined to discuss the return-to-work process with his counsel because Mr. Hewitt is a Union member and represented by the Union. However, the City did not indicate that it would not communicate with or accommodate Mr. Hewitt. Mr. Hewitt appears to take the City’s comments to Mr. Hewitt’s counsel on December 18, 2020, out of context. I observe that the last email from the HR Manager in that string of communications states that,
If Mr. Hewitt wishes to pursue a human rights complaint, then he may do so. If he chooses to retain outside legal counsel to assist him with that, that is his call. Otherwise, the City will continue to communicate with Mr. Hewitt and his union representative directly.
[135] The materials before me show that the City communicated with Mr. Hewitt regarding his complaint, leave, and return to work throughout this period, including on the following dates: July 14, August 31, September 1, 2, 16, 28, October 26.
[136] On October 27, 2020, Mr. Hewitt advised that he was still dealing with anxiety and depression, could not function properly to complete work tasks and would not be reporting to work on October 28. He further stated that he was in contact with WorkSafeBC and would be continuing to attend counselling and keep in touch with his doctor.
[137] As set out above, the next set of communications involved Mr. Hewitt’s counsel and the HR Manager, who ultimately declined to discuss Mr. Hewitt’s situation with counsel.
[138] I pause to note that in response to the dismissal application Mr. Hewitt asserts, for the first time, that the City’s refusal to engage in discussions with his counsel is a failure to accommodate in and of itself. I agree with the City that this allegation should be disregarded in circumstances where Mr. Hewitt did not apply to amend his complaint as required by Rule 24(4)(b) of the Tribunal’s Rules.
[139] The next set of communications began on January 25, 2021, when the HR Manager wrote to Mr. Hewitt as follows,
I don’t think I have communicated with yet this year so I hope it’s not too late to say happy new year! I know there has been a bit of delay in correspondence due to the fact with the holidays and also because the City wanted to ensure you had ample time to participate with the counsellor you had lined up in the fall. I trust that is working well.
Now that we are into a new year, it is time to discuss your return to work. I have talked with your union representative, [name redacted], and we have time to meet with you tomorrow to discuss your return. I know you will likely have lots of questions so we want to meet with you to review what your return to work will look like as we have meaningful work for you and believe based on the medical provided to date, that we can safely accommodate. Due to the sensitive nature of this discussion, we will host this in person but please be assured that we have taken all the necessary safety precautions in which to meet in person safely.
…
This meeting is necessary in order for us to better understand your present medical condition and how the City can accommodate your return. We look forward to meeting tomorrow and to address any questions you may have.
[as written]
[140] Mr. Hewitt responded as follows:
I’m concerned about your comment that all workplace barriers have been removed. My ability to return to work is dependant on my concerns about [Supervisor] being addressed.
I’m happy that you have opened communication and shall attend the meeting to listen to your thoughts.
[141] Based on the totality of the materials before me, I am persuaded that the City is reasonably certain to establish that it discharged its duty to accommodate Mr. Hewitt during this period. In reaching this conclusion, I gave considerable weight to the undisputed evidence that the City proposed options including moving his workstation and reporting to the Manager, and Mr. Hewitt declined to discuss the proposal without providing updated medical to support his decision not to meet and discuss how the City could support his return to work. As asserted by the City, the medical information from Mr. Hewitt did not indicate that he was restricted or limited from meeting with the City to discuss the proposed accommodations.
[142] I am also persuaded that Mr. Hewitt has no reasonable prospect of establishing the City refused to communicate with him. He has not pointed to any communications where the City failed to respond to him or stated it would no longer communicate with him. On the contrary, the materials before me indicate that it was Mr. Hewitt who requested time and space to address his medical issues. Similarly, there is no evidence before me to suggest that the City declined to communicate with Mr. Hewitt’s Union representative. On the contrary, it appears that the City invited Mr. Hewitt and his Union representative to meet to discuss his return to work.
2. January 2021 to April 2021
[143] During this period, Mr. Hewitt asserts that the City continued to pressure him to return to work without addressing the required accommodations. He points to his January 28, 2021, medical note as well as his communication on January 29, 2021, where he seeks clarity on how he could perform his work without the involvement of the Supervisor. He alleges that the City ignored his concerns and simply stated that the proposed accommodations were sufficient. He also asserts that, in February 2021, the City never responded to his offers to provide further medical information, including a letter from his counsellor.
[144] The City continues to rely on its position that the proposed alternative work arrangement and time off were reasonable and appropriate accommodations. The City takes the view that Mr. Hewitt’s subjective preference not to work in an environment in which the Supervisor was still employer was neither reasonable nor practical given the medical information before it.
[145] The City further argues that once the concerns about the Supervisor were deemed unsubstantiated, there were no longer medical restrictions or limitations preventing Mr. Hewitt from returning to work. Notwithstanding its view that the concerns preventing his return to work had been addressed, the City says that it was prepared to continue to explore reasonable accommodation options with Mr. Hewitt, provided there was sufficient medical information to justify the same. The City asserts that Mr. Hewitt did not provide medical documentation that specified he could not work within the same department or in physical proximity to the Supervisor. It says that he opted to voluntarily retire.
[146] For the following reasons, I am persuaded that the City is reasonably certain to establish that it discharged its duty to accommodate Mr. Hewitt during this period.
[147] There is no dispute that the parties met on January 26, 2021, to discuss Mr. Hewitt’s return to work, and he indicated that he still did not feel safe to return to work. In his subsequent email, he asserted that the workplace barriers had still not been removed, his return to work depended on his concerns about the Supervisor being addressed, and he had concerns with how the proposed accommodations would work.
[148] Mr. Hewitt then presented the City with a medical note dated January 28, 2021, supporting his continued absence from work. The doctor’s note supports Mr. Hewitt’s application for employment insurance until the “conclusion to this unfortunate situation.” However, the note does not provide any specific accommodation recommendations which the City could respond to. Rather, the note recommends that Mr. Hewitt continue to avoid the “hostile work environment” in which he found himself “at odds because of alleged and strongly suspected managerial financial inconsistencies.”
[149] The City’s letter to Mr. Hewitt on February 8, 2021, makes clear its view that the medical information before it does not support his continued absence from work due to medical reasons. Notwithstanding this view, the City agreed to grant him a 3-month unpaid leave of absence to provide him additional time to ready himself for a return to work.
[150] Mr. Hewitt responded to the February 8 letter on February 11, but he did not provide any further medical information to the City. Instead, he states that,
I believe my most recent doctor’s letter emailed on Jan 29, 2021, supports my medical reason for not returning to work. If necessary however, I could also provide a note from my counsellor. If you need further details, please specify.
[151] It is apparent from his email, that Mr. Hewitt did not accept the City’s conclusion that his concerns about the Supervisor were not substantiated. Mr. Hewitt concluded his February 11, 2021, email by stating that, he “must depart” and that he is considering retirement and a human rights complaint.
[152] In my view, the City is reasonably certain to establish in all these circumstances that it acted reasonably and appropriately by inviting Mr. Hewitt and the Union to discuss his return to work; communicating the outcome of the investigation into the Supervisor; agreeing to his request for a 3-months leave despite the medical information not addressing Mr. Hewitt’s restrictions and limitations given the conclusion of the investigation’ and seeking clarification about Mr. Hewitt’s intentions before requesting further medical information.
[153] In short, I am persuaded that the City is reasonably certain to establish that it reasonably accommodated Mr. Hewitt based on the information it had at the time, including Mr. Hewitt’s communications about needing time, considering retirement, and the vague and limited medical information provided in January 2021.
[154] Where the City is reasonably certain to establish a defence, it follows that the allegation has no reasonable prospect of success. I dismiss it on this basis.
V CONCLUSION
[155] I grant the application and dismiss the entire complaint under s. 27(1)(c).
Kathleen Smith
Tribunal Member
Human Rights Tribunal