HRT’s decision to summarily dismiss complaint set aside in part because of its failure to consider new medical evidence about complainant’s diagnosis that had been provided after the employer’s impugned decisions had been made

Administrative law – Decisions reviewed – Human Rights Tribunal – Disability – Duty to accommodate – Judicial review – Procedural requirements and fairness – Evidence – Standard of review – Patent unreasonableness

McNeil v. British Columbia (Human Rights Tribunal), [2023] B.C.J. No. 561, 2023 BCSC 481, British Columbia Supreme Court, March 29, 2023, B.M. Young J.

Ms. M was employed at Telus Employer Solutions (“TES”) from November 2016 to May 2018 under a series of temporary employment contracts. Beginning in January 2018, she started experiencing unexplained health symptoms including headaches, fatigue and “brain fog” among others, which she thought may be triggered by something in her workplace. She requested TES accommodate her disability by allowing her to work from home. TES denied the request; she was not considered eligible to work from home based on its policy, which only allowed employees meeting performance standards to work from home. In February 2018, Ms. M stopped coming into the office and informed TES that she would be working from home. TES placed her on unpaid leave and requested a medical form so they could consider possible accommodations, including working from home. Ms. M provided a form from her doctor indicating she had unexplained, vague, general symptoms with no diagnosis, and that she had no obvious functional limitations or medical restrictions at that time, but recommending that she be allowed to work from home for a trial period. TES rejected her request for accommodation again as there was no medical diagnosis and no medical evidence of her having a condition that would prevent her from performing her job at the workplace. In May 2018, when her temporary employment contract expired, she was not offered a new one. In July 2018, she was diagnosed with Chronic Fatigue Syndrome and Myalgic Enceophalomyelitis and in 2019, her internist completed a medical report in support of her application for provincial disability benefits.

In July 2018, Ms. M filed a human rights complaint alleging that TES has discriminated against her in her employment on the grounds of physical disability as well as mental disability (she had previously been diagnosed with anxiety) in refusing to accommodate her requests to work from home. The HRT found that Ms. M had met the prima facie case for discrimination, but that it was reasonably certain that TES could establish a bona fida occupational requirement (BFOR) defence at a hearing. The HRT dismissed the complaint under s. 27(1)(c) of the Code, finding it had no reasonable prospect of success given the likelihood of TES’s successful BFOR defence.

Ms. M sought a judicial review of this decision. The court accepted her argument that the HRT exercised its discretion in an arbitrary and patently unreasonable way by (A) failing to consider her secondary argument that she was also discriminated against when she was not offered a new employment contract due to her disability, and (B) completely ignoring significant new medical evidence from her internist, and not considering TES’s responsibility to inquire or provide adequate time for Ms. M to obtain her diagnosis. While TES argued it would be unfair to have to address new medical evidence, which creates a moving target to respond to, the court found the balance of unfairness favoured Ms. M, who was still investigating the cause of her disability when her contract ended, considering the length of time it takes to get an appointment with a specialist to investigate a disability. The court set the tribunal’s decision aside and remitted the matter back for reconsideration.

This case was digested by Kara Hill, and first published in the LexisNexis® Harper Grey Administrative Law Netletter and the Harper Grey Administrative Law Newsletter.  If you would like to discuss this case further, please contact Kara Hill at [email protected].

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