Beruflich Dokumente
Kultur Dokumente
File: 17585
Indexed as: McRae v. City of Nanaimo, 2019 BCHRT 144
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:
Bradley McRae
COMPLAINANT
AND:
City of Nanaimo
RESPONDENT
REASONS FOR DECISION
APPLICATION TO DISMISS A COMPLAINT
Section 27(1)(b) and (c)
Tribunal Member: Grace Chen
Counsel for the Complainant: Fred Wynne
Counsel for the Respondent: Rodney Sieg
I INTRODUCTION
Mr. McRae was a municipal officer with the City of Nanaimo [City]. Mr. McRae filed a
complaint against the City alleging it discriminated against him on the ground of mental
disability in employment contrary to s. 13 of the Human Rights Code [Code] when the City
terminated his employment while he was on medical leave. Mr. McRae alleges the City failed to
accommodate his request to adjourn his termination hearing.
The City denies discriminating and applies to dismiss the complaint under s. 27(1)(b) and
(c) of the Code.
While I do not refer to it all in my decision, I have considered all of the information filed
by the parties in relation to this application to dismiss. This is not a complete recitation of the
parties’ submissions, but only those necessary to come to my decision. I make no findings of
fact.
For my reasons below, I dismiss a part of the complaint under s. 27(1)(c). Part of the
complaint is dismissed, and part of the complaint will proceed.
II BACKGROUND
Mr. McRae has pre‐existing PTSD and anxiety. In October 2016, the City hired Mr.
McRae as its Chief Operations Officer.
The City was aware of Mr. McRae’s conditions and granted his related medical leaves in
November 2016 and March 2017.
In November 2017, Mr. McRae testified as a witness in a Privacy Commissioner’s hearing
and participated in an RCMP investigation into the personal expenses of the City’s Chief
Administrative Officer [CAO] and Chief Financial Officer [CFO]. Mr. McRae says the CAO and
CFO asked him to not release certain information. Mr. McRae says he had a breakdown due to
1
the stress from these events. Also during this month, the CAO, CFO, and Director of Human
Resources [DHR] conducted an investigation into a project that Mr. McCrae was involved with.
The City granted Mr. McRae’s third medical leave, which started around November 24,
2017. While he was on leave, Mr. McRae attended an interview with the CAO, CFO, and DHR
about his involvement in the project.
On November 30, 2017, the CAO notified Mr. McRae by letter that she was
recommending that his employment be terminated due to his handling of the project. Mr.
McRae says the CAO’s allegations against him were untrue and she misrepresented the grounds
for his termination. He swears in his affidavit that he believes the real reason for his
termination was that he was involved in the investigations that ultimately led to the discovery
of the CAO and CFO’s financial impropriety.
Section 152 of the Community Charter, SBC 2003, c. 26, provides:
Termination of officers
152 (1) Subject to a contract of employment and subject to providing the
officer with an opportunity to be heard, the appointment of a municipal
officer may be terminated by the council as follows:
(a) in the case of termination for cause, by immediate termination
without any period of notice;
(b) in any other case, by termination on reasonable notice.
(2) A termination under subsection (1) (b) may only be made by the
affirmative vote of at least 2/3 of all council members.
The CAO’s letter to Mr. McRae set out s. 152(1) of the Community Charter and indicated
that:
a. He was entitled to attend an in‐camera council meeting;
b. He was entitled to bring a representative or advocate;
2
c. He or his advocate would have the opportunity to respond to her
recommendation;
d. Council may have questions; and
e. He had a right to appear before council at the hearing.
Mr. McRae’s sick leave was running out. On December 6, 2017, the CAO sent another
letter to Mr. McRae indicating the City would place him on paid administrative leave contingent
on him scheduling a date for his termination hearing. Mr. McRae’s termination hearing before
council was scheduled for December 18, 2017.
On December 11, 2017, Mr. McRae hired a lawyer.
Mr. McRae’s lawyer asked the City to reschedule the December 18, 2017 termination
hearing and provided a medical note stating Mr. McRae was not fit to attend. The City
rescheduled the hearing to January 10, 2018.
Whether the City should have postponed Mr. McRae’s termination hearing for a second
time lies at the heart of the complaint. What occurred between Mr. McRae’s lawyer and the
City’s lawyer underlies much that is in dispute, since there was no direct communication
between the City and Mr. McRae after he hired counsel. The lawyers’ correspondence is
attached as exhibits to affidavits sworn by Mr. McRae and the City’s Director of Human
Resources.
After the first hearing was adjourned, Mr. McRae’s lawyer enquired about the hearing
procedure. The City’s lawyer replied that, at the hearing, the CAO would make submissions and
Mr. McRae’s counsel would provide a response submission. Any questions that council may
have would be answered by the parties. The CAO could respond to Mr. McRae’s submissions
and Mr. McRae would have an opportunity to reply through counsel. The City’s lawyer
anticipated Mr. McRae and his counsel would be present at the hearing.
3
Mr. McRae’s lawyer then requested document disclosure. The CAO’s report
recommending Mr. McRae’s termination was provided. The lawyers debated what document
disclosure and procedural fairness was required under the Community Charter for the
termination hearing.
On January 9, 2018, Mr. McRae’s lawyer provided the City’s lawyer with another
medical note stating Mr. McRae was not fit to attend the termination hearing until after
January 17, 2018. Mr. McRae’s lawyer asked to postpone the hearing until the earliest
convenient date after January 17, 2018. The parties disagree whether this was a request for an
indefinite adjournment.
In his letter to the City, Mr. McRae’s lawyer cited Reglin v. Creston (Town) et al., 2004
BCSC 790 [Reglin], for the principle that the right to a hearing is comprised of: 1) the right to
know the case against you, and 2) the right to present your case to the decision maker. Mr.
McRae’s lawyer stated in his letter:
It is my view that it is impossible to fulfill the second component except
at an in‐person hearing with Mr. McRae’s participation since we will be
unable to respond to council’s questions or react to any submissions of
[the CAO] that is not contained in her report.
The City’s lawyer responded to Mr. McRae’s lawyer and said Mr. McRae was permitted
to participate by written submissions or via videoconference. He also invited counsel to attend
the hearing on behalf of Mr. McRae to represent his interests. Mr. McRae’s lawyer did not
provide a response to these suggested options.
On January 10, 2018, the City held the termination hearing without Mr. McRae or his
lawyer present. The council voted in support of the CAO’s recommendation to terminate Mr.
McRae’s employment.
On January 11, 2018, the CAO sent a letter to Mr. McRae advising his employment was
terminated for cause.
4
III ANALYSIS AND DECISION
A. Allegations in amended complaint
The City submits in reply that Mr. McRae raised a new allegation in his response
submissions. At the outset, I acknowledge that respondents are entitled to know the allegations
they are facing to assess whether to bring a dismissal application. The Tribunal will usually
disregard new allegations raised for the first time in response to an application to dismiss:
Loewen v. BC Emergency Health Services, 2015 BCHRT 190 at paras. 21 and 22. Allowing
complainants to add new allegations at that point is generally unfair to respondents because it
creates a moving target: Purdy v. Douglas College and others, 2016 BCHRT 117.
For my reasons below, however, I find there was no new allegation raised and thus it is
unnecessary to strike out any parts of the submission.
I start by setting out the allegations in the Amended Complaint.
Mr. McRae’s Amended Complaint sets out at para. 4:
There was no just cause for the termination for Mr. McRae’s employment,
and in fact that termination violated s. 13 of the Human Rights Code, RSBC
1996, C. 210, as it constituted an adverse effect on Mr. McRae motivated
fully or partly by Mr. McRae’s disability.
At the end of his Amended Complaint at para. 26, Mr. McRae sets out:
Violations of the Human Rights Code
The above facts show that the Respondent breached the Humans Rights Code in
two distinct ways:
a. It failed to accommodate Mr. McRae by holding the termination hearing and
refusing a reasonable adjournment when it knew Mr. McRae was unable to
attend due to disability; and
5
b. It deprived Mr. McRae of his statutory right to be heard pursuant to the
Community Charter by holding the termination hearing in absentia, which was a
direct adverse effect on Mr. McRae.
In Mr. McRae’s response to the application to dismiss, he submits there was no just
cause for his termination and the City’s application should be denied for that reason as well. He
explains his involvement in the project that formed the basis of the CAO’s recommendation to
terminate him. Mr. McRae says his complaint clearly alleges he suffered adverse effects which
included his termination.
In its reply submission, the City submits Mr. McRae did not originally allege his
termination breached the Code. The only issue before the Tribunal is whether the City’s
decision to deny Mr. McRae an opportunity to appear in person at the hearing amounted to
discrimination.
I am satisfied that the City has had reasonable notice of this allegation because
paragraph 4 of the Amended Complaint contains Mr. McRae’s allegation that his termination
violated the Code. I consider the Amended Complaint at paragraphs 4 and 26 sets out three
allegations:
a. The termination violated the Code and was motivated in full or in part by Mr.
McRae’s disability;
b. The City failed to accommodate Mr. McRae by holding the termination hearing
and refusing a reasonable adjournment when it knew Mr. McRae was unable to
attend due to disability; and
c. The City deprived Mr. McRae of his statutory right to be heard pursuant to the
Community Charter by holding the termination hearing in absentia, which was a
direct adverse effect on Mr. McRae.
B. Section 27(1)(b) – Do the acts or omissions alleged in the complaint or
that part of the complaint contravene the Code?
For the following reasons, I decline to dismiss the complaint under s. 27(1)(b).
6
Under section 27(1)(b) of the Code, the Tribunal has discretion to dismiss a complaint
where it does not allege any acts, which could, if proven, contravene the Code. In determining
whether to dismiss a complaint on this basis, the Tribunal only considers the allegations
outlined in the complaint, without reference to the respondent’s explanation or evidence:
Francescutti v. Vancouver (City), 2017 BCCA at para. 49. The threshold for assessing a possible
contravention is low: Lebovich v. Home Depot and others, 2011 BCHRT83 at para. 84.
To amount to discrimination, Mr. McRae would have to prove that he has a mental
disability, that he suffered an adverse impact in respect to employment, and that it is
reasonable to infer that the protected characteristic was a factor in the adverse impact: Moore
v. British Columbia (Ministry of Education), 2012 SCC 61 [Moore] at para. 33. For the purposes
of s. 27(1)(b), Mr. McRae’s complaint must contain alleged acts or omissions that could
establish the three elements. There is no requirement he must prove any of those elements at
this stage of the process.
1. First allegation – Termination
Mr. McRae’s first allegation is that his termination violated the Code and the City was
motivated in full or in part by the disability. There is no dispute that Mr. McRae has alleged a
mental disability and an adverse impact of termination. At issue, then, is whether he has
alleged facts that could support that his disability was a factor in his termination. The Tribunal
in Morris v. BC Rail, 2003 BCHRT 14 at para. 231 stated:
That said, the fact that an employer makes the decision to terminate a
disabled employee’s employment while that employee is on a leave
related to disability should be taken into account in determining whether
one can infer that the employee’s disability was a factor in the employer’s
decision‐making.
Mr. McRae alleges that there was no just cause for his termination, he was on disability‐
related medical leave when the City decided to terminate his employment, the termination
hearing proceeded while he was still disabled, and his employment was terminated at that
7
hearing. These alleged facts, if proven, could support a reasonable inference that Mr. McRae’s
disability was a factor in the termination of his employment.
2. Second and third allegations – Failure to accommodate and deprivation of
statutory right
Mr. McRae’s second and third allegation are that the City did not accommodate his
disability and deprived him of his statutory right to be heard.
I have not considered the City’s arguments on the legal interpretation of the Community
Charter because the Tribunal only considers the allegations outlined in the complaint, without
reference to the respondent’s explanation or evidence, under a s. 27(1)(b) application:
Francescutti. I am satisfied the complaint alleges acts in relation to all three allegations, which
could, if proven, contravene the Code.
Out of fairness to the City, I will consider these arguments under s. 27(1)(c) of the Code.
C. Section 27(1)(c) – Is there no reasonable prospect that the complaint will
succeed?
Determinations under s. 27(1)(c) involve a preliminary assessment of whether there is
no reasonable prospect that the complaint will succeed: Workers' Compensation Appeal
Tribunal v. Hill, 2011 BCCA 49 [Hill]. This provision creates a gate‐keeping function that permits
the Tribunal to conduct a preliminary assessment of complaints to remove those that do not
warrant the time and expense of a hearing. This is a discretionary exercise by the Tribunal and
does not require factual findings, merely an assessment of all of the evidence submitted by the
parties: Berezoutskaia v. British Columbia (Human Rights Tribunal), 2006 BCCA 95
[Berezoutskaia] at paras. 22‐26.
The threshold for such a review is low and the complainant must only show that their
evidence is not speculation or conjecture: Hill at para. 27. However, there must be more than a
mere possibility of success: Berezoutskaia at paras. 24 and 26. I can only consider information
that is before me; I cannot consider what evidence might be given if there is a hearing:
8
University of British Columbia v. Chan, 2013 BCSC 942 at para. 77. It is incumbent on the parties,
therefore, to submit all the evidence that is capable of substantiating their argument on
contested issues.
To succeed in his complaint at a hearing, Mr. McRae would have to prove that he
experienced an adverse impact in his employment that was connected to a disability: Moore at
para. 33. If he does so, the burden shifts to the City to justify its conduct.
Under s.27(1)(c), the Respondents must show that Mr. McRae has no reasonable
prospect of success at a hearing. This may be established in two ways. First, if Mr. McRae has
no reasonable prospect of establishing one or more elements of the complaint at a hearing.
Where the City disputes any of these elements, Mr. McRae must have some evidence to take
the allegation out of the realm of conjecture. Second, there is no reasonable prospect of
success if the Tribunal determines it is reasonably certain that the City will establish a defence
at the hearing: Purdy v. Douglas College, 2016 BCHRT 117 at para. 50. This defense would
incorporate the requirement to reasonably accommodate to the point of undue hardship.
For my reasons below, I dismiss part of the complaint under s. 27(1) as it relates to the
allegation that the City deprived Mr. McRae of his statutory right under the Community Charter.
1. Termination
Mr. McRae’s first allegation is that his termination was motivated in full or in part by his
disability. Mr. McRae has alleged his disability prevented him from attending the termination
meeting which ultimately ended with his termination. The City does not dispute Mr. McRae was
on a medical leave at the time of his termination or that being terminated can be considered an
adverse impact. Based on fact the termination occurred while Mr. McRae was on medical leave,
the nexus between the disability and his termination is not purely speculative.
I am unable to find Mr. McRae has no reasonable prospect of success in showing his
disability was a factor when the City terminated his employment.
9
2. Failure to accommodate allegation
I begin by setting out how Mr. McRae frames his allegation and how the City has
structured its submissions.
Mr. McRae frames his second allegation as a failure to accommodate. He alleges the City
failed to accommodate him when it refused a reasonable adjournment when it knew he was
unable to attend the hearing due to his disability. This presumes all three elements of
discrimination existed and triggered the City’s duty to accommodate.
In its dismissal application, the City argues there is no duty to accommodate a disabled
employee until a complainant has established the link between a protected characteristic and
the adverse impact: Morris v. Ministry of the BC Public Service Agency, 2018 BCHRT 222 at para.
118. The City clearly states in its submissions that it does not address accommodation because
the duty to accommodate only arises when a complainant establishes the required link
between the disability and the adverse effect. The City’s position is Mr. McRae did not
experience an adverse effect and thus there is no need for it to address the issue of
accommodation.
Accordingly, the City submits the complaint should be dismissed because Mr. McRae has
no reasonable prospect of success in establishing he experienced an adverse impact. Without
an adverse impact, Mr. McRae also has no reasonable prospect of success of showing a nexus
between any adverse impact and his disability.
This means that, if I find the City has not shown Mr. McRae has no reasonable prospect
of success in establishing the three elements of his case, the City’s application to dismiss must
fail because it has not argued it will succeed at establishing a defence of reasonable
accommodation.
I therefore turn to the question of whether Mr. McRae has no reasonable prospect of
proving that he was adversely affected by the City’s decision to proceed on January 10, 2018
and that his disability was a factor in any adverse effect. I begin with the question of whether
10
Mr. McRae has no reasonable prospect of success in showing he experienced an adverse impact
when the City denied his second adjournment request.
Mr. McRae argues that he was denied the right to appear in person. The parties do not
agree whether the Community Charter should be interpreted in a manner that gives Mr. McRae
the right to be heard in person. However, they both rely on Reglin as authority on the right to
be heard even though that decision did not deal with the Community Charter.
In Reglin, the plaintiff claimed he was wrongfully dismissed from his employment with
the town. The plaintiff provided the town’s council with his report on his superior’s
inappropriate actions. The council provided the plaintiff’s report to his superior. The superior
responded with his own report. The superior appeared before council to discuss both reports.
The council expressed confidence in the superior and voted to terminate the plaintiff’s
employment. The plaintiff argued council should have also given him a hearing. The town
argued it effectively gave the plaintiff a hearing by facilitating interviews with the plaintiff
before he submitted his report and that the council had also considered his report.
The Court found the town did not comply with its duty of fairness because the
interviews occurred early, before there was indication the plaintiff’s job was in jeopardy, he
was not provided with a copy of his superior’s report, and he was not given the opportunity to
appear before council to respond to his supervisor’s allegations. The supervisor was given an
opportunity that was not afforded to the plaintiff. The Court found the town council owed the
plaintiff a duty of procedural fairness, which it explained at paras. 46‐47:
I must now determine whether Mr. Reglin received a hearing but to make
that determination I must examine what the right to a hearing entails.
There are two components to this right – a right to know the case
against you and a right to present your case to the decision makers
(Knight at 685; Collins at para. 26; and Anderson at para. 48). As H.W.R.
Wade remarks in Administrative Law, 5th ed. (Oxford: Clarendon Press,
1982) at 500‐01, cited in Knight at 674:
If the officer is subject to some accusation, justice requires that he
should be allowed a fair opportunity to defend himself, whatever the
terms of his tenure. To deny it to him is to confuse the substance of
11
the decision, which may be based on any reason at all, with the
procedure which ought first to be followed for purposes of fairness. It
is then an example of the fallacy, already mentioned, that the
argument for natural justice is weaker where the discretionary power
is wide.
A formal hearing is not always necessary so long as the decision‐making
body complied with the above two components (see Walker v. Toronto
(City) (1993), 14 O.R. (3d) 91 (Gen. Div.) at para. 97). It is also possible that
the employee can learn the case against him or her by informal means. In
Knight, the Supreme Court of Canada found no breach of the duty of
procedural fairness because, on the facts of that case, the employee was
or should have been well aware of the problems that resulted in his
termination.
(emphasis added)
I start with noting that both parties agree that the components of the right to a hearing
are comprised of: 1) the right to know the case against you, and 2) the right to present your
case to the decision maker. They also appear to agree Reglin does not guarantee in‐person
hearings; however, Mr. McRae argues there are potentially different legal interpretations on
the right to be heard under the Community Charter, which was not considered in Reglin.
The City submits there is no adverse impact because Mr. McRae was not entitled to an
in‐person oral hearing under the Community Charter and it gave him other options to
participate in the hearing and his lawyer did not respond to those options.
I find the focus on whether Mr. McRae was entitled to an in‐person hearing may miss
the point. There is no dispute in this case that both parties started out with an expectation that
Mr. McRae would appear in person. This is relevant to the question of whether Mr. McRae
suffered an adverse impact.
I start with evidence about the City’s expectations. The CAO’s first letter advised Mr.
McRae he is entitled to appear at the hearing and answer questions that the council may have.
The City then granted Mr. McRae’s first adjournment request based on medical evidence he
was unfit to attend in person. The City’s lawyer then explained to Mr. McRae’s lawyer that he
anticipated that Mr. McRae and his counsel to be at the hearing and explained council might
12
have questions that will be answered by the parties. Thus, notwithstanding what the
Community Charter provides, the evidence before me indicates that the City was of the view
that it was important for Mr. McRae to appear in person.
With respect to Mr. McRae’s evidence, his lawyer’s letter to the City’s lawyer on January
9, 2017 specifically states his position that Mr. McRae needs to be present to answer questions
and respond to any new submissions made by the CAO. This seems like a logical position given
Mr. McRae’s job was on the line and both the CAO and the City’s lawyer advised Mr. McRae
might need to answer council’s questions at the hearing. It appears to be understood that there
was a benefit to Mr. McRae in attending the hearing.
The City focuses on the fact that the City’s lawyer offered other options: Mr. McRae
could participate by written submissions or via videoconference, or have his counsel attend the
hearing. It says this offer, which was met by silence, supports that its conduct did not adversely
affect Mr. McRae.
The difficulty with this argument is twofold. First, it does not explain how the other
options negated the adverse impact by meeting the concerns of Mr. McRae’s lawyer that his
client needed to be present to answer questions from council. While it may be that video‐
conferencing would have allowed him to answer questions from council, it is not clear to me
how it was a viable option given the medical note was general in that he was unable to attend
the hearing and did not say he was unable to attend in person and was seeking accommodation
to attend remotely.
Second, more fundamentally and as discussed below, the City’s response to what was
essentially a request for accommodation is most appropriately considered as part of the City’s
defence: University of British Columbia v. Kelly, 2016 BCCA 271 at paras. 25‐26.
I find the City has not shown Mr. McRae has no reasonable prospect of success in
showing he experienced an adverse impact when his second adjournment request was denied.
Since Mr. McRae provided medical evidence to support his second adjournment request, I also
13
find the City also has not shown Mr. McCrae has no reasonable prospect of success in showing
a nexus between his disability and adverse impact.
The s. 27(1)(c) analysis on this allegation ends at this point because the City specifically
states it does not argue it reasonably accommodated Mr. McRae. I note the reasonableness of
the other available options and the reasonableness of Mr. McRae’s response would have been
considered under an analysis regarding the City’s defence. Because the City has not argued a
defence, I also find the City has not shown Mr. McRae has no reasonable prospect of success
based on the likelihood that the City would prove that it discharged its duty to accommodate
him if he proves the elements of his case.
3. Deprivation of statutory right allegation
I now turn to Mr. McRae’s third allegation that the City deprived him of his statutory
right to be heard pursuant to the Community Charter by holding the termination hearing in
absentia, which was a direct adverse effect on him.
The City submits Mr. McRae’s statutory right under the Community Charter does not
mean he has a right to appear in person. Aside from Reglin, the City referred to Tsleil‐Waututh
Nation v. Canada (Attorney General), [2018] G.C.J. No. 876 and Williams (Guardian ad litem of)
v. Chilliwack School District No. 33, [1994] B.C.J. No. 584. Although none of these cases deal
with the Community Charter, the City submits these cases show the courts have held that the
right to be heard does not mean a right to be heard in person.
Mr. McCrae submits that, even if an in‐person hearing is not mandatory, it was not up to
the City to determine the contents of his statutory right. Essentially, he argues the City deprived
him of his right to choose an in‐person hearing and this was an adverse impact. He argues the
cases cited by the City were not applicable and there is “varying potential legal interpretation of
the Community Charter right to be heard” but did not provide any legal authority that supports
his position.
14
In reply, the City submits Mr. McRae’s allegations about procedural unfairness under
the Community Charter is a matter for judicial review. The City refers to Fast v. Meadowlands
Housing Co‐op, 2015 BCHRT 5 at para. 94 where the Tribunal stated:
First, I will clarify that I have no authority to judge whether the Board
complied with the Rules and Occupancy Agreement or failed to provide
the Fasts with procedural fairness. The proper forum for those issues is a
petition for judicial review before the B.C. Supreme Court.
The City also refers Madadi v. British Columbia (Ministry of Education), 2012 BCHRT 380
where the Tribunal dismissed a complaint under s. 27(1)(c) because it found the court was the
appropriate body to review the College of Teachers’ disciplinary decision that found a teacher
guilty of misconduct.
I agree the Tribunal’s role is not to decide whether the City or its council proceeded
unfairly under the Community Charter. The court, not the Tribunal, is the appropriate forum to
attack the City council’s procedure and decision to terminate Mr. McRae. Even if Mr. McRae
provides legal authority that supports his position that he is entitled to an in‐person hearing
under the Community Charter, the Tribunal’s role is not to find whether he was deprived of that
statutory right. The Tribunal’s role is to determine whether the City discriminated against Mr.
McRae under the Code when it terminated his employment while he was on medical leave.
In general, I find the facts underlying this allegation are the same as the facts that
underly the failure to accommodate allegation. The only difference is that Mr. McRae frames
his third allegation as a loss of a statutory right. I find that, to the extent that Mr. McRae alleges
that the City breached his statutory right under the Community Charter, this is not an issue for
the Tribunal. Thus, I allow the City’s application to dismiss the complaint that the City deprived
Mr. McRae of his statutory right to be heard pursuant to the Community Charter under
s. 27(1)(c).
15
IV CONCLUSION
I grant the Respondent’s application to dismiss the complaint in part. I dismiss the part
of the complaint alleging that the City deprived him of his statutory right to be heard pursuant
to the Community Charter under s. 27(1)(c) of the Code.
The part of the complaint alleging that Mr. McCrae’s disability was a factor in the City’s
decision to proceed with the hearing where it terminated his employment will proceed. This
includes two allegations: that the termination was motivated in full or in part by Mr. McRae’s
disability and that the City failed to accommodate Mr. McRae.
My decision to allow parts of the complaint to proceed only means the City has not
provided sufficient evidence at this stage to justifying dismissing those parts of the complaint
without a hearing. It does not mean Mr. McRae will necessarily be successful at a hearing.
16