Dumas v. Simba Technologies

2015 BCHRT 65, 2015 Carswell BC 975 (2015)
Download Judgment: English

The complainant, Cathy Dumas, suffered from a cognitive illness. She had filed a complaint against the respondent, her former employer, Simba Technologies Inc., on the ground of irregular termination of employment due to her mental or physical disability. This termination is claimed to be in violation of S.3 of the Human Rights Code Which lists down prohibited grounds of discrimination by the employer.
The complainant was employed at a full-time managerial post in May 2012, however, after a year, her work profile was altered in consultation with her doctor. The complainant was involved in a bicycle accident, which required her to take off work until the beginning of February 2014, after which she returned to the work part-time. She moved to full-time employment by April 2014. In the performance review in May 2014 she received below expectation remarks for her work and was confirmed to be suffering from mental disability, and in June of the same year, she was fired from her job. The respondent said that the Analytics Department had not been profitable for some time and was cutting its losses in that part of the business. The complainant was also told that she did not have the requisite skills, qualifications, and experience to be transferred to open positions in other departments by the respondents.
The respondent denied the complainant’s allegation of discrimination and had filed an application before the same Tribunal to dismiss the complainant’s complaint pursuant to ss. 27(1)(b) on the ground of no contravention of the Code and under 27(1)(c) of the Human Rights Code on the ground of no prospects of success.

The Court accepted the respondent’s application to dismiss the complainant’s complaint under section 27(1)(b). the Court applied a test to check whether the complainant has alleged facts which, if proven at a hearing, could establish a violation of the Code. The three elements to show a prima facie case were: a) complainant is a member of a protected class under the Code b) complainant suffered an adverse impact with respect to a protected area c) the protected characteristic was a factor in the adverse impact. A nexus between the alleged membership in a protected group and the adverse impact was necessary and they were not exclusive of each other. The threshold for alleging a prima facie case was necessarily low. The complainant made an allegation of cognitive disability which was not disputed by the respondent and the adverse impact of it were her termination and bad review. However, with respect to the physical disability, there is no adverse impact she suffered and the same could not be proved at the hearing. Hence, the Court dismissed the complaint in pursuance of section 27(1)(b) because there was no discrimination suffered by her on the grounds of physical disability. The respondents' application to dismiss the complaint of discrimination on the basis of mental disability pursuant to s. 27(1)(b) was also denied.
Under Section 27(1)(c), the Court held that the complaint has two aspects, first the complainant received a negative performance evaluation because of her mental disability, second, she was terminated in whole or in part because of that disability. For the first part, the Court held that any aspect of the complaint relating to the performance review itself has no reasonably likelihood of success and, accordingly, that part of the complaint was dismissed. For the second part the court ruled that there is a possibility that the termination happened because of her mental disability but it simply cannot conclude, based on the materials before it, that there is no reasonable likelihood that the complaint relating to respondents failure to offer her other, even more, junior positions, has no reasonable likelihood of success. Therefore, the Court urged the Parties to approach the Tribunal’s mediation services to settle the matter.

“Reasonable accommodation does not require pretending that the negative behaviors do not exist by removing any reference to them in a performance review.” (Para 75)

“Reasonable accommodation could involve amending the performance review to address its connection to her disability and the development of steps to alleviate those effects.” (Para 76)

“…accommodation is a co-operative endeavor. It would typically involve her, her doctor, human resources and her immediate supervisor. Where sensitive medical information is involved, ways to restrict its unnecessary dissemination may be required. However, that has to be balanced against ensuring that those persons who have a need to know certain information have access to that information.” (Para 77)

Section 3 (1) For all purposes of this Act, the prohibited grounds of discrimination are race, national or ethnic origin, colour, religion, age, sex, sexual orientation, gender identity or expression, marital status, family status, genetic characteristics, disability and conviction for an offence for which a pardon has been granted or in respect of which a record suspension has been ordered. (2) Where the ground of discrimination is pregnancy or child-birth, the discrimination shall be deemed to be on the ground of sex. (3) Where the ground of discrimination is refusal of a request to undergo a genetic test or to disclose, or authorize the disclosure of, the results of a genetic test, the discrimination shall be deemed to be on the ground of genetic characteristics. Sections 27(1)(b) and (c) of the Human Rights Code provides that: “[1] member or panel may, at any time after a complaint is filed and with or without a hearing, dismiss all or part of the complaint if that member or panel determines that any of the following apply . . . (b)the acts or omissions alleged in the complaint or that part of the complaint do not contravene this Code . . . (c)[or] there is no reasonable prospect the complaint will succeed.” Section 13 (Employment) of the Human Rights Code: “(1)A person must not(a)refuse to employ or refuse to continue to employ a person, or (b)discriminate against a person regarding employment or any term or condition of employment because of the race, colour, ancestry, place of origin, political belief, religion, marital status, family status, physical or mental disability, sex, sexual orientation, gender identity or expression, or age of that person or because that person has been convicted of a criminal or summary conviction offence that is unrelated to the employment or to the intended employment of that person . . .”
View full summary and print   |   Download summary as PDF