Latter v. Braddell 1881 England

3/26/2018 CanLII - 2004 BCHRT 1 (CanLII)
Crosby v. Dairyland Fluid Division Ltd. and others, 2004 BCHRT 1 (CanLII)
Date: 2004-01-07
File 315
number:
Citation: Crosby v. Dairyland Fluid Division Ltd. and others, 2004 BCHRT 1 (CanLII), <http://canlii.ca/t/h09g8>, retrieved on
2018-03-26
Date: January 7, 2004

File: 315
Indexed as: Crosby v. Dairyland Fluid Division Ltd. and others,

2004 BCHRT 1
IN THE MATTER OF THE HUMAN RIGHTS CODE

R.S.B.C. 1996, c. 210 (as amended)
AND IN THE MATTER of a complaint before

the British Columbia Human Rights Tribunal
B E T W E E N:
Lynn Crosby
COMPLAINANT
A N D:
Dairyland Fluid Division Ltd., Saputo Boulangerie Inc./Saputo Bakery Inc.,

Glen Schwartz, Rob Neil, and Blaine Ellis
RESPONDENTS
REASONS FOR PRELIMINARY DECISION

APPLICATION TO DISMISS
Tribunal Member: Tonie Beharrell
Counsel for the Complainant: Wendy Liew
Counsel for the Respondent: Peter A. Csiszar
[1] On November 27, 2002, the Complainant, Lynn Crosby, filed a complaint with the B.C. Human Rights
Commission (the “Commission”) in which she alleged that Blaine Ellis, Rod Neil, Glen N. Schwartz, Dairyland Fluid
Division Ltd., and Saputo Boulangerie Inc./Saputo Bakery Inc. (the “Respondents”) had discriminated against her in her
https://www.canlii.org/en/bc/bchrt/doc/2004/2004bchrt1/2004bchrt1.html?searchUrlHash=AAAAAQAPZm9yY2UgcGFydC10aW1lAAAAAAE&resultIndex=4
terms and conditions of employment based on her physical disability, contrary to s. 13 of the Human Rights Code, R.S.B.C.
1996, c. 210, as amended (the “Code”). As a result of amendments to the Code, proclaimed in force on March 31, 2003, the
Commission was eliminated and the complaint was forwarded to the Tribunal.
[2] On October 14, 2003, the Respondents filed a Response to Complaint Form (the “Response”). On the same date,
the Respondents applied to have the complaint dismissed pursuant to sections 27(1)(b), (c), (d), (e), and (f) of the Code (the
“Application”). The Complainant opposes the Application.
Background
[3] In reciting the following factual background I am not making any findings of fact, but am only giving the
information necessary to put the complaint and Application in context.
[4] Dairyland Fluid Division Ltd. (the “Company”) is part of the Saputo Milk Division, which is a division of Saputo
Inc. The Complainant has been employed by the Company, or its predecessor companies, since January 27, 1981. The
Company is a unionized workplace, and the Complainant is a member of the Teamsters Union, Local 464 (the “Union”).
[5] Blaine Ellis is the Company’s human resources director. Rod Neil is the manager of the Company’s Annacis Plant.
Glen Schwartz is the Company’s senior vice president of human resources.
[6] The Complainant was employed as a home service driver/salesperson until approximately 1994 when that
department was converted to owner/operators. She remained employed by the Company, and in October 1996 exercised her
option under the collective agreement and bumped into a checker/loader trainee position in the warehouse.
[7] In 1992, the Complainant began experiencing medical problems involving her hands and forearms and was on
Workers Compensation health care benefits while continuing to work. The Complainant subsequently went off work on
income replacement benefits for some time, after which she attempted an extended return to work program. The
Complainant alleges that the Company’s attempts to accommodate her in her return to work were inadequate and in
contravention of the Code. Further, the Complainant alleges that the individual Respondents failed to assist her in her
return to work efforts.
Legislation
[8] Section 27 of the Code governs the dismissal of complaints. The relevant portion of the section provides:
27 (1) A 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) there is no reasonable prospect that the complaint will succeed;
(d) proceeding with the complaint or that part of the complaint would not
(i) benefit the person, group or class alleged to have been discriminated against, or
(ii) further the purposes of this Code;
(e) the complaint or that part of the complaint was filed for improper motives or made in bad faith;
(f) the substance of the complaint or that part of the complaint has been appropriately dealt with in
another proceeding;
Section 27(1)(b): Do the acts or omissions alleged contravene the Code?
Respondents’ Application
[9] With respect to s. 27(1)(b), the Respondents submit that no facts have been identified which support a claim that
the Code has been violated. The Respondents submitted documentation which, they say, illustrates that the Company has
repeatedly attempted to accommodate the Complainant, to date. The Complainant continues to be gainfully employed by
the Company, without any claim that she is unable to perform the tasks associated with her current duties. She has been
working continually and has been given work within her physical capability.
[10] The Respondents argue that the Complainant has never alleged that the Company failed to offer her available work
that she was capable of performing. The Complainant has not been discriminated against in relation to any term or
condition of employment. The Complainant’s allegations do not show any connection between her physical disability and
unfair treatment by the Respondents.
Complainant’s Response
[11] The Complainant submits that her complaint outlines examples of the discriminatory conduct which she
experienced in her attempts to request accommodation from the Respondents due to her disability. The Complainant
submits that, as a result of her disability she was unable to perform her job without accommodation, and was forced to find
alternate ways to remain employed with the Company. As a result, she lost her full-time status and became a part-time
employee. The Complainant says that, because of this change, she lost her vacation entitlement, which would have
provided her with the periodic rest periods she required due to the nature of her disability.
[12] The Complainant disagrees with the Respondents’ assertion that they repeatedly attempted to accommodate her.
The Complainant argues that she has submitted numerous job applications for positions to which she has not received
formal responses from the Company. Further, the Complainant argues that she made numerous suggestions for
accommodation that were not considered by the Respondents, including a request that she be transferred to an office
position.
[13] The Complainant notes that, as a result of recent amendments to the Code, an investigation process no longer
exists. In the absence of such an investigation process, the Complainant submits that a decision on a preliminary
application should be made on the basis of uncontested facts. Given that the parties to this complaint clearly have contrary
views on the facts underpinning the complaint, the Application should be dismissed.
Respondents’ Reply
[14] The Respondents argue that the Complainant’s own submissions confirm their accommodation efforts. The
Complainant was offered alternate assignments as a form of accommodation. She was given the opportunity to perform
assignments commensurate with her limitations.
[15] With respect to the change in the Complainant’s status from full to part-time, the Respondents submit that this
change was consistent with the terms of the collective agreement negotiated between the Company and the Union. It was
the operation of the collective agreement that led to the change in the Complainant’s status.
[16] In addition, the Respondents submit that the Complainant did not lose her vacation entitlement when she changed
from full to part-time status. As a part-time employee, she receives her vacation pay bi-weekly in addition to her regular
pay. She, like all other part-time employees, is able to schedule vacation time off without pay. In addition, employees on
the part-time list who require periodic or sporadic time off can do so by turning down assigned shifts or can declare
themselves unavailable for certain periods, an option that is not available to full-time employees.
[17] Further, the Respondents note that the Complainant has worked continually throughout the period about which she
is complaining. Therefore, it is obvious that she was accommodated. While the Complainant may have submitted job
applications for positions for which she did not receive formal responses from the Company, this is again consistent with
the collective agreement. Only successful candidates and the Union receive formal notification of the results of a job
posting. The Complainant did not file any grievances with respect to positions for which she was not the successful
candidate.
[18] With respect to the Complainant’s request for an office position, the Respondents argue that the Complainant did
not have the ability to perform office work, even if such a vacancy was available. Further, the collective agreement at the
time provided that employees could not transfer between the office and the general plant. Finally, there were no office
vacancies at the relevant time, as office requirements were being significantly reduced and employees were being laid off.
Analysis and Decision
[19] In Pegura et al. v. School District No. 36, 2003 BCHRT 53 (CanLII), at para. 28, the Tribunal held that, in the
absence of any investigatory process under the Code or any evidence (either viva voce or by affidavit) from either party, a
decision on an application under s. 27(1)(b) should be made on the basis of facts which are assumed to be true, based either
on the complainant’s statements or an agreed statement of facts between the parties.
[20] In this case, the parties have not submitted either viva voce or affidavit evidence. They clearly have conflicting
views about a number of events. It is clear that the Respondents have made efforts to accommodate the Complainant’s
disability. However, the sufficiency of these efforts, the role of the individual Respondents with respect to these
accommodation efforts, and the treatment the Complainant has received, are very much at issue between the parties. For
example, the Respondents argue that they have fully accommodated the Complainant, as she continues to be gainfully
employed by the Company. The Complainant disagrees, and notes that her status has been reduced from full to part-time,
which has had a negative impact on her, and that her attempts to suggest other possible accommodations have been
rebuffed. In my view, this conflict goes to the very root of the complaint, and is a complex issue of mixed law and fact
which cannot be resolved on a preliminary basis. It can only be resolved after hearing all the evidence at a hearing.
Therefore, the Respondents’ Application pursuant to s. 27(1)(b) is dismissed.
Section 27(1)(d): Would proceeding with the complaint further the purposes of the Code?
[21] With respect to s. 27(1)(d), the Respondents argue that continuing with the complaint would not further the
purposes of the Code. The Respondents note that two of the purposes of the Code are the prevention of discrimination
prohibited by the Code, and the provision of a means of redress for those persons who are discriminated against contrary to
the Code. As there is no basis for a discrimination allegation under the Code, the purposes of the Code cannot be furthered
by proceeding with the complaint.
[22] In addition, the Respondents argue that the Complainant has claimed no redress other than mediation, the purpose
of providing a means of redress cannot be said to be furthered by the complaint.
[23] In response, the Complainant relies on her arguments with respect to s. 27(1)(b). Further, the Complainant takes
issue with the Respondents’ position that, since there is no redress claimed in the complaint other than mediation, the
purposes of the Code cannot be said to be furthered. The Complainant notes that the complaint form does not address
remedy/redress, and thus the Complainant could not be expected to put this in her complaint. The Tribunal’s Rules of
Practice and Procedure (the “Rules”) provide a timeframe within which the Complainant’s particulars of remedy sought are
to be provided to the Respondents, and the Complainant will provide these particulars at the appropriate time.
[24] With respect to their argument that no redress is claimed, the Respondents argue that the absence of any type of
remedy identified by the Complainant is indicative and supportive of their position that there is no legitimate complaint.
[25] As I understand their submissions, the Respondents argue that proceeding with the complaint will not further the
purposes of the Code because there is no basis for an allegation of discrimination under the Code, and no redress is claimed
in the complaint.
[26] I have dealt with the submissions with respect to whether there is a basis for the complaint, in my reasons with
respect to the s. 27(1)(b) application.
[27] I also find that the Respondents’ argument with respect to redress is not well- founded. As noted by the
Complainant’s representative, there is no section of the Tribunal’s complaint form that specifically requests that
complainants indicate the redress which they are seeking. While the complaint in this matter was filed with the
Commission, and transferred to the Tribunal, it is also the case that Particulars of Allegation filed with the Commission
often did not include the redress sought. Further, the Tribunal’s Rules specifically provide for a procedure by which
complainants notify respondents of the remedy they are seeking: Rules 18(5) and 19(5). This occurs as part of the
document disclosure process.
[28] In any event, mediation can itself be seen as a form of redress. There are strong policy rationales, consistent with
the purposes of the Code, for encouraging parties to engage in mediation and the Tribunal provides a range of settlement
meeting options to parties. For these reasons, I find that the fact that no specific redress was outlined in the complaint is not
a ground for dismissal under s. 27(1)(d).
[29] For all of the above reasons, the Respondents’ Application pursuant to s. 27(1)(d) is dismissed.
Section 27(1)(e): Was the complaint filed for improper motives or in bad faith?
[30] With respect to s. 27(1)(e), the Respondents submit that the complaint has been filed for improper motives and thus
made in bad faith. The Respondents assert that the Complainant harbours ill feelings towards them. None of her factual
allegations disclose any violation of the Code: all they disclose is a negative attitude towards the Respondents.
[31] The Respondents argue that they have gone out of their way to accommodate the Complainant, and have shown
enormous restraint in dealing with her. The Respondents argue that strong grounds have existed for the potential discipline
of the Complainant. However, the Respondents have chosen not to take such a formal disciplinary route, but have allowed
the Complainant to continue her employment, and have accommodated her disability.
[32] The Complainant argues that the Respondents have not provided any evidence to support their allegations of
misconduct. The Complainant has dedicated 21 years of service to the Company, sustained a permanent disability as a
result of this service, and has experienced ongoing difficulties in attempts to find accommodation. It is reasonable to
assume that she has experienced some hurt and anger, or ill feelings towards the Company. This, in and of itself, is not a
ground for dismissing the complaint.
[33] The Respondents continue to assert that they have grounds to discipline the Complainant, but have chosen not to
do so.
[34] I cannot say on the material before me that the complaint was made in bad faith or for improper motives. The
Respondents submit that the Complainant’s allegations are erroneous, and that they disclose a negative attitude towards the
Respondents. Individuals often have a negative attitude towards parties against whom they are alleging discrimination.
This fact alone does not indicate that a complaint was made for improper motives or in bad faith.
[35] Further, in order for a complaint to be dismissed under s. 27(1)(e), a respondent must do more than present a
different version of events and say that the complainant is lying or in error. Upon hearing all of the evidence, a Tribunal
member may agree with the Respondents. However, the fact that a respondent disagrees with a complainant about what
happened does not establish that the complaint was made for improper motives or in bad faith. The determination of what
did happen between the parties is better dealt with at a hearing than through a preliminary application.
[36] The Respondents Application pursuant to s. 27(1)(e) is therefore dismissed.
Section 27(1)(f): Has the substance of the complaint been appropriately dealt with in another proceeding?
[37] With respect to s. 27(1)(f), the Respondents argue that the complaint has been appropriately dealt with under other
proceedings. The Union filed a grievance on the Complainant’s behalf which included a component alleging discrimination
based on a physical disability. The Respondents submit that the matters raised in the complaint are the same type of
allegations that were sought to be addressed in the grievance filed on the Complainant’s behalf.
[38] The Respondents argue that the grievance was fully addressed in the grievance procedure provided under the
collective agreement. The grievance was resolved when the Union withdrew it. The Respondents argue that this is binding
in law on the Complainant, and therefore the grievance was effectively resolved as between the Company, the Complainant
and the Union.
[39] The Respondents state that the withdrawal of the grievance included the acceptance by the Union that the Company
had adequately accommodated the Complainant in relation to her employment with the Company. The extensive efforts to
accommodate the Complainant were made not only by the Company, but were effectively accepted as adequate by the
Union in the resolution of the grievance.
[40] The Complainant argues that, when presented with the grievance, the Company simply denied it. Given that there
was no willingness on the part of the Company to acknowledge the grievance, the Union withdrew it, and the Complainant
proceeded with a human rights complaint. The withdrawal of the grievance does not amount to a resolution of the matter,
which would justify dismissing the complaint under s. 27(1)(f).
[41] The Respondents argue that, in fact, discussions were held between the Company and the Union with respect to the
merits of the grievance, and following those discussions the Union agreed with the Company’s position, rather than that of
the Complainant. As a result, the Union withdrew the grievance. The Respondents submit that the jurisprudence makes it
clear that the impact of a withdrawal of a grievance without conditions is a form of acknowledgment that there was no
violation of the collective agreement. Further, the Respondents argue that a withdrawal of a grievance in these
circumstances constitutes an acceptance of the validity of the Company’s position. If the Complainant had an issue with the
Union’s withdrawal of the grievance, her remedy was to bring a s. 12 complaint under the Labour Relations Code.
[42] Included in the materials provided by the Respondents is an e-mail from the Complainant to the Union, headed
“grievance”, which asks that the Complainant’s full-time status be reinstated immediately. By letter to the Union dated
December 13, 2002, that grievance was denied by the Company.
[43] In that letter, Mr. Ellis states first, that the grievance is inarbitrable because it was filed out of time, and second, if it
were arbitrable, there is no foundation for the grievance as the actions of the Company were in harmony with the provisions
of the collective agreement. Mr. Ellis states, in part:
Ms. Crosby asserts that her status has been changed from full-time to part-time “as a direct result of my disability”.
This is incorrect. Ms. Crosby’s status is part-time in accordance with the provisions of the Collective Agreement.
[44] The Complainant states that, when presented with the grievance, the Company simply denied it. Therefore, the
Union withdrew the grievance and the Complainant proceeded with a human rights complaint. The Respondents state that
the Union agreed with the Company’s position and therefore withdrew the grievance. The Respondents have not provided
any information that would indicate the terms, if any, on which the grievance was withdrawn. Further, while the impact of
a withdrawal of a grievance in the labour relations context may be clear, the impact of such a withdrawal is not clear for the
purposes of s. 27(1)(f) of the Code. In order to dismiss a complaint on this basis, the Tribunal must be satisfied that the
substance of the complaint has been appropriately dealt with in the other proceeding.
[45] I cannot find that the substance of the complaint has been dealt with in another proceeding. First, the Respondents
state that the Union agreed with the Company’s position that the Company had acted in accordance with the terms of the
collective agreement. Assuming this to be true, in my view this does not deal with the substance of the human rights
complaint. Second, as noted above, I have no confirmation of the basis on which the grievance was withdrawn. Third,
there appear to be aspects of the complaint that are not encapsulated by the matters referred to in the grievance.
[46] For all of these reasons, the Respondents’ Application pursuant to s. 27(1)(f) is dismissed.
Section 27(1)(c): Is there no reasonable prospect that the complaint will succeed?
[47] The Respondents did not make specific submissions with respect to s. 27(1)(c) in their initial Application.
[48] The Complainant noted that the Respondents did not make any argument under this ground, and submitted that the
Application on this ground should be dismissed.
[49] In their reply, the Respondents stated that their argument under s. 27(1)(c) is based on the cumulative effect of all
their submissions.
[50] The Respondents have stated that the application under s. 27(1)(c) is based on the cumulative effect of all of their
submissions with respect to the complaint. As I have dismissed the Respondents’ Application on each of the enumerated
grounds, this means that this aspect of the Application must also fail. On the material before me, I am unable to conclude
that the complaint has no reasonable prospect of success. There are significant differences in the version of events provided
by the parties. The nature of the differences in the parties’ versions of events is such that I cannot resolve them on a
preliminary basis. It will be necessary for the member designated to hear this case to determine what happened, after
hearing all the evidence, including cross-examination. The Respondents’ Application pursuant to s. 27(1)(c) is therefore
dismissed.
Conclusion
[51] For all of the above reasons, I dismiss all aspects of the Respondents’ Application.
Tonie Beharrell, Tribunal Member
Federation of Law Societies of

By for the law societies members of the
Canada

Latter v. Braddell 1881 England

Hochgeladen von

Dokumentinformationen

Copyright

Verfügbare Formate

Dieses Dokument teilen

Dokument teilen oder einbetten

Freigabeoptionen

Stufen Sie dieses Dokument als nützlich ein?

Sind diese Inhalte unangemessen?

Copyright:

Verfügbare Formate

Latter v. Braddell 1881 England

Hochgeladen von

Copyright:

Verfügbare Formate

3/26/2018 CanLII - 2004 BCHRT 1 (CanLII)

Date: January 7, 2004

Indexed as: Crosby v. Dairyland Fluid Division Ltd. and others,

IN THE MATTER OF THE HUMAN RIGHTS CODE

AND IN THE MATTER of a complaint before

Dairyland Fluid Division Ltd., Saputo Boulangerie Inc./Saputo Bakery Inc.,

REASONS FOR PRELIMINARY DECISION

Tribunal Member: Tonie Beharrell

Counsel for the Complainant: Wendy Liew

Counsel for the Respondent: Peter A. Csiszar

(c) there is no reasonable prospect that the complaint will succeed;

(ii) further the purposes of this Code;

Section 27(1)(b): Do the acts or omissions alleged contravene the Code?

Analysis and Decision

Analysis and Decision

Analysis and Decision

[36] The Respondents Application pursuant to s. 27(1)(e) is therefore dismissed.

Analysis and Decision

Analysis and Decision

Tonie Beharrell, Tribunal Member

Federation of Law Societies of

Das könnte Ihnen auch gefallen