Suspicious timing sparks questions about disability discrimination in the workplace
The Supreme Court of British Columbia recently dealt with a judicial review petition challenging a Human Rights Tribunal's decision to allow a workplace discrimination complaint to proceed to a full hearing.
The case involved a worker who alleged his termination was connected to workplace injuries he sustained, contrary to disability protections under the British Columbia Human Rights Code.
The worker argued that two separate workplace injuries, a chest injury in January 2019 and an elbow injury in March 2019, were factors in his employer's decision to terminate his employment.
He claimed he had informed his supervisor about the elbow injury but was ignored, forcing him to continue working without accommodation. The worker maintained that his termination on 29 March 2019, which occurred on the same morning he called in sick to see a doctor about his injuries, was not coincidental.
The worker started employment as a labourer in April 2017 with a plastics manufacturing company that later experienced significant financial difficulties. During 2018, the employer struggled economically and by the first half of 2019 had laid off roughly 20 percent of its employees.
The worker eventually became part of these redundancies, though the circumstances surrounding his specific termination became the subject of dispute.
On 2 January 2019, the worker suffered a chest injury at work and properly reported it to his supervisor. WorkSafeBC was informed and later accepted his claim.
After receiving medical advice that the worker should not lift more than 20 pounds, workplace accommodations were deemed unnecessary. The chest injury did not cause the worker to miss any work time.
The worker alleged that in mid-March 2019, he suffered a second workplace injury to his elbow whilst maintaining machinery. According to his complaint, he was "hit by the arms of the machine while disassembling it, and suffered immediate, significant pain, and felt that he had seriously injured his elbow."
He claimed he informed his supervisor about this incident but was ignored, forcing him to continue working without accommodation and without reporting the injury to WorkSafeBC.
On the morning of 29 March 2019, the worker telephoned in sick to consult a doctor about pain in his elbow and chest. At 10:51 AM that same day, he received an email terminating his employment immediately without cause. Seven months later, he filed a complaint with the BC Human Rights Tribunal claiming his dismissal was related to his injuries.
To support his elbow injury claim, the worker provided medical evidence that became central to the tribunal's assessment. He submitted an X-ray report dated 29 April 2019 for his right elbow. The tribunal noted the findings stated:
"Small areas of spurring are seen in both medial and lateral epicondyle regions, as well as at the triceps insertion on the olecranon tip. No degenerative disease. No joint effusion."
The worker also provided a prescription for pain medication dated 27 July 2021, which he said was for his ongoing elbow pain. The tribunal found that the worker's "doctor has advised him to 'find light work and not to lift too much weight or overstress [his] arm.'"
The employer's evidence included a medical referral from the worker's doctor dated 2 April 2019 for "Physiotherapy for neck and right arm pain," though this referral note reportedly lacked proper letterhead.
The employer applied to dismiss the complaint under the BC Human Rights Code, arguing the worker had no reasonable prospect of proving he had a disability or that any disability connected to his termination. The company's primary defence centred on timing and alternative reasons for dismissal.
The employer argued the termination decision was made on 8 February 2019, well before the alleged elbow injury occurred in mid-March. Email evidence showed the director of operations requested preparation of a termination letter on that February date.
However, this request remained unfulfilled for seven weeks, with the employer explaining the office manager was absent when the initial request was made.
The employer also pointed to economic pressures and the worker's alleged poor job performance as legitimate reasons for termination. However, significant gaps appeared in the employer's evidence.
The company provided a sworn statement about the worker's performance from the CEO but not from anyone who directly supervised him. No documentary evidence supported the performance concerns, and the worker was terminated "without cause" with communications suggesting potential future rehire opportunities.
A crucial dispute arose over whether the worker had informed his supervisor about his elbow injury. In his formal statement, the worker claimed he told his supervisor about the incident around the time it occurred.
The tribunal recorded that the worker said he "told [the supervisor] about the incident and told him that my elbow was hurting but he ignored me and did not offer me a break or any other accommodation."
However, the employer pointed to two emails the worker sent immediately after receiving his termination notice. In his first email, the worker wrote: "I didn't say anything to [the supervisor] the readon is I dont want to miss any days." His second email stated: "I did not say anything to [the supervisor]" about his arm condition.
The tribunal member found these emails were ambiguous about whether the worker had ever informed his supervisor of the injury. The member noted: "Nothing in these emails directly contradicts [the worker's] assertion that he told [the supervisor] about the injury two weeks earlier, at the time of the injury."
Critically, the supervisor did not provide a sworn statement denying knowledge of the worker's injury, creating a significant gap in the employer's evidence.
The Supreme Court applied a highly deferential standard of review, noting that preliminary dismissal decisions attract "the highest of curial deference." The court rejected the employer's arguments, finding the tribunal member's decision was not unreasonable and that the employer was essentially asking the court to reassess evidence.
The court stated: "In this, [the employer] asks this Court to impermissibly reweigh the evidence and information before the Member. Those evidentiary arguments are suitable and may well win the day at the substantive hearing, coupled with credibility findings." The court emphasised that preliminary assessments do not require comprehensive proof but only evidence taking claims beyond pure speculation.
The court explained the low threshold required at this stage: "The threshold was low; it was not a matter of weighing the evidence, but simple deciding that there was some evidentiary basis to believe that the complaint might be proven in a hearing."
The Supreme Court concluded: "The Member was entitled, on the evidence before her, to find that [the employer] had failed its onus of establishing that the complaint had no reasonable prospect of success."
In dismissing the judicial review petition, the court stated: "Throughout its arguments, [the employer] seeks to have this court reweigh the evidence and information before the Member and substitute its own findings: an impermissible exercise."
The petition was dismissed, meaning the worker's human rights complaint will proceed to a full hearing before the BC Human Rights Tribunal. The ruling demonstrates that employers seeking early dismissal of human rights complaints must present compelling, complete evidence to meet their burden at preliminary stages.
