Date Issued: July 31, 2024

File: CS-002285

Indexed as: Redmond v. The John Howard Society Okanagan & Kootenay, 2024 BCHRT 219

2024 BCHRT 219 (CanLII)

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:

Megan Redmond
COMPLAINANT

AND:

The John Howard Society Okanagan & Kootenay

RESPONDENT

REASONS FOR DECISION

APPLICATION TO DISMISS COMPLAINT
Sections 27(1)(c)

Tribunal Member: Christopher J. Foy

On their own behalf: Megan Redmond

Counsel for the Respondent: Sean Pihl, K.C.

I INTRODUCTION

Megan Redmond worked for The John Howard Society Okanagan & Kootenay [JHS]. The
JHS is a charity and social services agency which provides housing, employment, education,

2024 BCHRT 219 (CanLII)

community and justice services to marginalized individuals. Ms. Redmond provided outreach
services and was a live-in support worker for JHS clients. Ms. Redmond filed a complaint against
JHS alleging that it discriminated against her based on mental disability and retaliated against
her for the prospect of a human rights complaint contrary to ss. 13 and 43 of the Human Rights
Code [Code].

Ms. Redmond alleges that she was singled out and treated differently than other
employees by JHS and that her disabilities were not accommodated. Ms. Redmond has a brain
injury and attention-deficit/hyperactivity disorder [ADHD]. Her allegations principally relate to
JHS removing her work phone and computer which Ms. Redmond required to accommodate
her mental disabilities. In addition, Ms. Redmond alleges JHS’ program manager, Holly Bedard,
did not give her a set of office keys because she has ADHD and might lose them.

Ms. Redmond also alleges that Ms. Bedard reduced her schedule from three days to two
days stating that being a live-in support worker is a “tough job especially with a brain injury…I
don’t think you can handle three days.”

Finally, Ms. Redmond alleges that JHS terminated her employment in retaliation for the
prospect of filing a human rights complaint.

JHS denies discriminating against Ms. Redmond and applies to dismiss her complaint
under s. 27(1)(c) of the Code. JHS recognizes that Ms. Redmond has protected characteristics
under the Code as a result of her mental disabilities but argues that there is no reasonable
prospect the complaint will succeed at a hearing as Ms. Redmond suffered no adverse impacts
in employment and even if she did, there is no connection between those adverse impacts and
her disability.

1
 Alternatively, JHS says that it accommodated Ms. Redmond to the point of undue
hardship, not only because of the financial burden of providing her with her own phone and
computer but also because Ms. Redmond was unwilling to meaningfully engage in the
accommodation process.

2024 BCHRT 219 (CanLII)

With respect to Ms. Redmond’s retaliation complaint, JHS says that the decision to
terminate Ms. Redmond’s employment was made prior to JHS having knowledge about Ms.
Redmond’s human rights complaint and, in any event JHS argues that it is reasonably certain to
prove that it has a solely non-discriminatory explanation for its actions: Ms. Redmond’s
performance and conduct in the workplace.

The issues I must decide are, under s. 27(1)(c) of the Code:

i. Whether there is no reasonable prospect Ms. Redmond will

establish at a hearing that she was adversely impacted in her
employment and that her mental disabilities were a factor in
that adverse treatment;

ii. Whether it is reasonably certain JHS will establish it met its

duty to accommodate Ms. Redmond; and

iii. In respect of the retaliation complaint, whether there is no

reasonable prospect that Ms. Redmond will establish a
sufficient connection between JHS’ decision to terminate her
and the fact she might have filed a human rights complaint.

While I do not refer in my decision to all the information filed by the parties in relation
to this application to dismiss, I have considered it and thank the parties for their respective
submissions. The following will not be a complete recitation of the parties' submissions, but
only those necessary to come to my decision. Given the nature of the application, I make no
findings of fact.

Below I first set out the background to the complaint. I then set out my reasons for
denying the application to dismiss.

2
II BACKGROUND

Ms. Redmond was hired on January 8, 2020 as a part-time outreach and community
inclusion worker working six hours a week supporting a specific JHS client. She attests that

2024 BCHRT 219 (CanLII)

during the hiring process she advised JHS of her mental disabilities.

Ms. Redmond was issued a work cell phone and laptop computer which according to
Ms. Redmond “greatly assisted me with organization and managing the practical limitations of
my disabilities”. Ms. Redmond found that she was able to mentally prepare herself for her work
with the cell phone and laptop. It kept her anxiety away and allowed her to focus. She states
that: “The methods that I have programmed my brain to do went along with the work
cellphone.”

In March 2020, Ms. Redmond became a casual employee of JHS with no regular hours.

In or about March 2020, Ms. Redmond alleges that JHS failed to accommodate her by
removing her work laptop.

On June 16, 2020, Ms. Redmond was hired by JHS as a contractor for a live-in support
worker position. Ms. Redmond alleges that JHS singled her out and that unlike other live-in
support workers, she would not be given a key to the office. Ms. Bedard allegedly told Ms.
Redmond that this was because people with ADHD were forgetful. Ms. Bedard denies this. Ms.
Redmond was embarrassed by having to wait until someone let her into the office.

On or about July 6, 2020, Ms. Redmond’s work week was cut from three days a week
down to two days a week. Ms. Redmond alleges that Ms. Bedard told her that this was because
she didn’t think Ms. Redmond could handle working the three days because of her brain injury.
Ms. Bedard denies this and says that Ms. Redmond’s shifts were reduced at the request of a
client and was not in any way related to Ms. Redmond’s disability.

On July 14, 2020, Ms. Redmond says that Ms. Bedard singled her out by having her
doctor complete an invasive medical form which requested private information beyond what
was reasonably necessary for the position of live-in support worker [Medical Form].

3
 On or about July 19, 2020, Ms. Redmond alleges that JHS failed to accommodate her by
removing her work phone, which had allowed her to make up for cognitive deficits caused by
her disabilities.

2024 BCHRT 219 (CanLII)

On or about August 23, 2020, Ms. Redmond says that she was singled out by Ms. Bedard
who required her to come into work 15 minutes early without pay, something no other
employee had to do. Ms. Bedard says this was done to improve Ms. Redmond’s tardiness and
allow for smooth transitions between staff members and in no way was connected to Ms.
Redmond’s disability.

On or about August 24, 2020, Ms. Redmond submitted her Medical Form. The physician
who filled out the Medical Form advised of Ms. Redmond’s disabilities, brain injury and ADHD,
and recommended “support and mentorship as needed”.

On August 25, 2020, Ms. Redmond received a written warning for her tardiness at work.
Ms. Bedard allegedly advised Ms. Redmond that the Medical Form “raised red flags”.

On September 1, 2020, Ms. Redmond met with Ms. Bedard, Matthew Smith, JHS’
director of community living, and Carly Namysl, JHS’ human resources manager. During this
meeting Ms. Redmond raised concerns that she was being bullied and harassed by Ms. Bedard.
Ms. Bedard alleged that she was actually the one being bullied.

At the September 1, 2020 meeting, Ms. Redmond says she repeated her need for
accommodations related to her mental disabilities. Ms. Namysl’s alleged response was that Ms.
Redmond was “throwing around the word accommodation” because she had been warned
about tardiness. Mr. Matthews allegedly told Ms. Redmond that she would not get any
accommodations with regard to having a later start time to her shifts.

Mr. Matthews attests that an investigation into Ms. Redmond’s allegations of bullying
and harassment by Ms. Bedard began immediately after the meeting on September 1, 2020
[Investigation]. Mr. Matthews also wrote an email that afternoon to Patricia Bacon, JHS’

4
Executive Director, regarding his view of what occurred at the September 1, 2020 meeting. That
email sets out, in part, the following:

I do not see how anything that Holly did was even remotely related to the

2024 BCHRT 219 (CanLII)

allegations ageist [sic] her. It came across as retaliatory behaviour against
Holly. I feel that the best course of action is to give the contractor [Ms.
Redmond] 30 days notice and pay her out. I do not think there is any
recourse to repair the relationship between the contractor and JHSOK.

On September 2, 2020, Ms. Redmond resigned from her live-in support worker position
and once again became a casual JHS employee.

From September – October, 2020, Ms. Namysl conducted the Investigation, obtaining
further information from Ms. Redmond about the allegations against Ms. Bedford and Ms.
Bedford’s response.

Ms. Redmond says she went on leave on October 1, 2020 because of the discrimination
by JHS.

On or about October 9, 2020, Ms. Redmond filed her human rights complaint.

On October 19, 2020, Ms. Namysl requested several doctor’s notes from Ms. Redmond
“in order to navigate my findings”. Ms. Namysl requested the following:

a. another Medical Form, even though Ms. Redmond had resigned from
the live-in support worker position;

b. “Your doctor’s note requesting accommodation in order to explore

the request”;

c. A doctor’s note for leave of absence, if on leave.

Later that day, Ms. Redmond responded via email to Ms. Namysl’s requests for several
doctor’s notes writing: “After reading this email, I feel like it’s best to let the Human Rights
Tribunal intervene.”

5
 On October 21, 2020, Ms. Redmond wrote a more fulsome response to Ms. Namysl’s
October 19, 2020 email and stated the following with respect to the request for a doctor’s note
regarding accommodation:

2024 BCHRT 219 (CanLII)

I do believe it’s fair to provide information about my disability-related needs
but while still respecting my privacy interests. Do you have specific
questions that could be answered in order for you to feel the information is
sufficient enough in regard to clear guidelines so that we can explore?

Ms. Redmond says she did not receive any follow up to her October 21, 2020 email
regarding whether JHS had any specific questions for her doctor regarding accommodations.

On or about October 23, 2020, Ms. Namysl concluded the Investigation. The
Investigation found that Ms. Redmond’s allegations of bullying and harassment by Ms. Bedard
were unsubstantiated. Further, Ms. Namysl found that Ms. Redmond’s accommodation
requests lacked medical documentation to support them and that it wasn’t until August 26,
2020 that JHS received any medical documentation suggesting that Ms. Redmond required any
additional supports.

Ms. Namysl recommended in her Investigation report that Ms. Redmond “receive
immediate training and coaching on casual policies and give an honest attempt at using our
systems prior to requesting accommodations.”

Ms. Namysl’s final day of employment with JHS was around October 30, 2020. On or
before October 30, 2020, JHS says that Ms. Namysl told Ms. Bacon that JHS should terminate
Ms. Redmond’s employment. Ms. Bacon attests that a termination letter was already drafted
and included in Ms. Redmond’s file at the end of October, 2020.

On November 18, 2020, Ms. Redmond sent an email to JHS requesting an update on the
Investigation and advising that she hadn’t be able to work “for multiple reasons such as my
accommodations being taken away” and that she had let Ms. Namysl “know that the Human
Rights Tribunal would be good as a 3rd party to help us.”.

6
 Ms. Bacon responded to Ms. Redmond’s November 18, 2020 email on November 30,
2020 advising of the conclusion of the Investigation and terminating Ms. Redmond’s
employment at JHS.

2024 BCHRT 219 (CanLII)

Ms. Redmond’s amended complaint alleges that the termination issued on November
30, 2020 was retaliation by JHS against Ms. Redmond for her human rights complaint.

III DECISION

A. Should the complaint be dismissed under s. 27(1)(c) of the Code?

The requirements to prove discrimination were affirmed by the Supreme Court of

Canada in Moore v. British Columbia, 2012 SCC 61 [Moore] at para. 33. The Court held that
complainants must show that they have or are perceived to have a characteristic protected
from discrimination; that they have experienced an adverse impact in a protected area; and
that the protected characteristic was a factor in the adverse impact. The Tribunal refers to this
as the complainant's case: Vik v. Finamore (No. 2), 2018 BCHRT 9 at para. 50.

Section 27(1)(c) of the Code is a gatekeeping provision where the Tribunal has the
discretion to dismiss a complaint if it determines that the complaint has no reasonable prospect
of success. The Tribunal's role is to assess whether, based on all the material before it, and
applying its expertise, there is no reasonable prospect the complaint will succeed at a hearing:
Berezoutskaia v. British Columbia (Human Rights Tribunal), 2006 BCCA 95 at paras. 9 and 27;
Workers' Compensation Appeal Tribunal v. Hill, 2011 BCCA 49 at para. 27 [Hill].

To be successful under s. 27(1)(c), the burden is on the respondent to show there is no

reasonable prospect of the complaint succeeding. This may be established in two ways. First, if
the Tribunal determines there is no reasonable prospect that the complainant will be able to
establish one or more elements of the complaint at a hearing, it may dismiss the complaint. The
threshold for proceeding to a hearing is low. In circumstances where the respondent disputes

7
one of these elements, the complainant’s only obligation is to point to some evidence capable
of raising their complaint “out of the realm of conjecture”: Hill at para. 27.

Second, the Tribunal may consider a defence in an application under s. 27(1)(c): Trevena

2024 BCHRT 219 (CanLII)

v. Citizens' Assembly on Electoral Reform and others, 2004 BCHRT 24 at para. 67. Section 13(4)
of the Code sets out circumstances within which a respondent may prove their actions are
justified based on a good faith occupational requirement: British Columbia (Public Service
Employee Relations Commission) v. B.C.G.S.E.U. [1999] 3 S.C.R. 3 at para. 54. This test includes
establishing that the respondent discharged its duty to reasonably accommodate the
complainant’s disability.

If it is reasonably certain that a respondent will establish a defence at a hearing of the

complaint, then there is no reasonable prospect that the complaint will succeed: Purdy v.
Douglas College and others, 2016 BCHRT 117 at para. 50.

I am mindful in my analysis of the British Columbia Supreme Court’s caution against

dismissing portions of a complaint under s.27(1)(c). In Byelkova v Fraser Health Authority, 2021
BCSC 1312 at para. 115, the Court stated:

While the Tribunal may dismiss all or part of the complaint under s
27(1), insofar as the rationale for the s 27(1)(c) gatekeeping function is
the efficient operation of the Tribunal, it may well be that no efficiency
is gained by only dismissing half of the claim.

I begin my analysis with the elements Ms. Redmond would have to prove at a hearing to
establish discrimination, recognizing that she need not prove these elements on this
application, rather JHS must persuade me Ms. Redmond has no reasonable prospect of doing
so. I conclude JHS has not shown there is no reasonable prospect of Ms. Redmond’s complaint
succeeding. Finally, I will explain why I conclude that it is not reasonably certain that JHS will
establish they met their duty to accommodate.

8
1. Mental Disability

JHS concedes that Ms. Redmond has mental disabilities under the Code. I agree as the
evidence on this application include Ms. Redmond’s diagnosis of a traumatic brain injury as well

2024 BCHRT 219 (CanLII)

as ADHD.

2. Adverse Impact

JHS argues there is no reasonable prospect Ms. Redmond will establish that she suffered
any adverse impacts in the course of her employment. JHS says that Ms. Redmond’s allegations
of discrimination “did not cause a negative effect in relation to Ms. Redmond’s employment. At
all times, Ms. Redmond had access to the tools she needed to be successful in her position.”

However, JHS does acknowledge the reduction in Ms. Redmond’s shift from three days
to two days and the termination of her employment constitute an adverse impact in her
employment. There is therefore no dispute about Ms. Redmond’s ability to prove these adverse
impacts. Dismissal from employment, whether actual or constructive, is an adverse impact for
the purposes of human rights law: Carney v. Pro-Can Construction Group, 2020 BCHRT 62 at
para. 22.

Ms. Redmond has provided evidence that raises her complaint that the removal of her
phone and laptop were adverse affects in her employment sufficient to proceed to a hearing. In
the affidavit materials before me, Ms. Redmond has attested that she advised JHC of her
mental disabilities during the hiring process. She has provided evidence that having a work
phone and laptop computer were accommodations she needed to perform her work
responsibilities and these were taken away from her which caused anxiety.

The evidence indicates that Ms. Redmond felt embarrassed by not having a key to the
office. Ms. Redmond’s evidence is that others had keys and that Ms. Bedard’s reason for not
providing a key was because of Ms. Redmond’s ADHD. There is evidence that JHC required Ms.
Redmond and not other employees to attend work 15 minutes early without pay.

9
 Based on all the evidence before me, Ms. Redmond has taken this element of her
complaint out of the realm of conjecture.

3. Connection Between Disability And Adverse Impacts

2024 BCHRT 219 (CanLII)

JHS argues that Ms. Redmond has not alleged any facts which take the alleged nexus
between her disabilities and the alleged adverse impacts out of the realm of conjecture.

The issue at a hearing will be whether Ms. Redmond was adversely impacted in her
employment connected to her disabilities. The focus is on the effect of JHS's conduct, and not
its intentions: Code, s. 2; Robichaud v. Canada (Treasury Board), [1987] 2 SCR 84; Stewart v. Elk
Valley Coal Corp., 2017 SCC 30 at para. 45.

At a hearing, Ms. Redmond would not have to prove that her mental disabilities were
the only factor, overriding factor, or even a significant factor in the alleged adverse impact she
experienced: Quebec (Commission des Droits de la personne et des droits de la jeunesse) v.
Bombardier Inc., 2015 SCC 39 at paras. 45-52; Stewart v. Elk Valley Coal Corp., 2017 SCC 30 at
para. 46.

With respect to JHS’s submission that Ms. Redmond did not suffer an adverse impact in
the course of her employment connected to her mental disabilities, JHS makes the following
arguments:

a. Ms. Bedard denies that she didn’t give a key to Ms. Redmond
because of her ADHD. Instead it was solely for operational reasons
and no other employees had their own key;

b. Ms. Bedard denies that she reduced Ms. Redmond’s shift because of
her brain injury. Instead, Ms. Bedard says that the shifts were
reduced at the request of a JHC client; and

c. JHS denies that Ms. Redmond’s disabilities were a factor in her

termination. Her termination was due to Ms. Redmond’s conduct,
work performance, and lack of responsiveness to coaching efforts.

10
 With respect to JHS’ first two arguments, there is a conflict in the evidence regarding
the reasons why Ms. Redmond was not provided a key to the office and why Ms. Redmond’s
shifts were reduced. Credibility of the parties is a live issue in this complaint.

2024 BCHRT 219 (CanLII)

The fact that a complaint raises issues of credibility does not mean an application to
dismiss under s. 27(1)(c) is automatically denied: Evans v. University of British, 2008 BCSC 1026
at para. 34. Rather, I must consider whether issues of credibility "can be resolved on the basis
of corroborative affidavit and contemporaneous documentary evidence": Smyth v. Loblaw and
another, 2017 BCHRT 73 at para. 41. However, "[i]f there are foundational or key issues of
credibility, then the matter must go to a hearing": Francescutti v. City (Vancouver), 2017 BCCA
242 at para. 67.

In this case, I find that credibility is a foundational consideration on the alleged

discriminatory comments by Ms. Bedard. It is simply Ms. Redmond’s word against that of Ms.
Bedard on whether the alleged comments occurred. I cannot determine on the materials
before me whether Ms. Bedard did not provide a key solely because of operational reasons and
reduced Ms. Redmond’s shifts solely because of a client complaint.

With respect to JHS’ argument that Ms. Redmond’s termination had nothing to do with
her disabilities, Ms. Redmond argues that JHS’ November 30, 2020 termination letter is
evidence that she was terminated because of her disabilities where it states:

Furthermore, you have shown unwillingness to participate in a collaborative

solutions [sic] and took unnecessarily long delays in providing documents to
substantiate your accommodation claims.

The materials before me indicate that the first time Ms. Redmond was asked for medical
documents to support her accommodation requests was in October, 2020 by Ms. Namysl.
Specifically, on October 19, 2020, Ms. Namysl, requested Ms. Redmond provide a doctor’s note
to explore her accommodation request. Two days later on October 21, 2020, Ms. Redmond
asked Ms. Namysl: “Do you have specific questions that could be answered in order for you to
feel the information is sufficient enough in regard to clear guidelines so that we can explore?”
but received no answer.

11
 On October 23, 2020, Ms. Namysl in her Investigation report concluded that Ms.
Redmond’s accommodation requests lacked medical documentation to support them.

Discrimination is often subtle rather than overt. For this reason, discrimination is often

2024 BCHRT 219 (CanLII)

proven by inference rather than direct evidence: Durrani v. Insurance Corp. of British Columbia
2022 BCHRT 100 at para. 106.

I cannot at this stage find that JHS has shown there is no reasonable prospect of success
of Ms. Redmond proving that her mental disabilities were at least a factor in her termination.
The termination letter specifically refers to the accommodation process. It will be open to the
Tribunal at a hearing to determine whether or not Ms. Redmond took “unnecessarily long
delays in providing documents to substantiate [her] accommodation claims”.

There are a number of other incidents Ms. Redmond has alleged are discriminatory,
including her delayed placement on JHS’ staff whatsapp, being singled out regarding the
Medical Form, and what was said at the September 1, 2020 meeting. JHS denies that Ms.
Redmond experienced discrimination regarding these matters. These issues require a hearing
to resolve. The materials before me indicate that there are significant facts in dispute and
credibility is a factor, in particular with respect to what was said at the September 1, 2020
meeting.

As a result, I am not persuaded that Ms. Redmond’s allegations that the adverse impacts
she suffered in employment were connected to her disabilities has no reasonable prospect of
success.

4. Duty To Accommodate

As JHS has not met its onus to establish Ms. Redmond has no reasonable prospect of
success in establishing her case, the issue I must now decide is whether JHS is reasonably
certain to establish at a hearing that it discharged its duty to accommodate Ms. Redmond. I am
not convinced that it is reasonably certain to do so.

12
 It is trite law that the duty to accommodate is a process where JHS and Ms. Redmond
both have obligations. However, the Supreme Court of Canada has ruled that it is the employer
that has the primary responsibility for workplace accommodations. The Court stated in Central
Okanagan School No. 23 v. Renaud, [1992] 2 S.C.R. 970 at para. 39:

2024 BCHRT 219 (CanLII)

Nevertheless, account must be taken of the fact that ordinarily the
employer, who has charge of the workplace, will be in the better position to
formulate accommodations. The employer, therefore, can be expected to
initiate the process. The employer must take steps that are reasonable.
(emphasis added)

There is both a procedural component and a substantive component within the duty to
accommodate. The procedural component requires the employer to undertake an
individualized investigation of accommodation measures and an assessment of an employee’s
needs. The substantive component requires the employer to make modifications or provide the
accommodation necessary in order to allow an employee to participate fully in the workplace:
Meiorin at para. 66.

The Tribunal has found that the procedural component imposes a duty on an employer
to obtain all relevant information about the employee's disability. That includes "information
about the employee's medical condition, prognosis for recovery, ability to perform job duties,
and capabilities for alternate work": Gordy v. Painter's Lodge (No. 2), 2004 BCHRT 225 at para.
84.

All I am tasked with on this application is whether JHS has persuaded me that they are
reasonably certain to prove that their duty to accommodate was satisfied.

The evidence in this case is that JHS was informed of Ms. Redmond’s disabilities during
the hiring process in January 2020. JHS provided Ms. Redmond with a work cell phone and
laptop computer but denies that this was because of any need on Ms. Redmond’s part for
accommodations. However, the materials before me set out that Ms. Redmond considered that
a work cell phone and laptop computer allowed her to make up for cognitive deficits caused by
her disabilities and articulated this to JHS.

13
 When JHS removed these items from Ms. Redmond, she advocated to keep using them
and articulated why they assisted her. When Ms. Redmond became a casual employee, JHS
considered there was no meaningful benefit to her having a laptop. Further, JHS says that there
was a shared phone to use. JHS didn’t want Ms. Redmond to do work outside of her scheduled

2024 BCHRT 219 (CanLII)

hours and she had access to a phone at work.

JHS says that Ms. Redmond was asked to meet with her supervisors to explore ways of
making what was available, including a shared phone and computer, work for her. These facts
are contested by Ms. Redmond who says that JHS simply denied her requests for
accommodations and did not explore alternatives.

The evidence does not persuade me that JHS is reasonably certain to prove they met
their duty to accommodate at a hearing. The cell phone and laptop were removed by JHS on or
before July, 2020. In August 2020, JHS received the Medical Form from Ms. Redmond’s doctor
advising of her brain injury and ADHD with recommendations of “support and mentorship as
needed”. It would be open to the Tribunal Member to find that JHS should have been aware of
their obligation to take active steps to inquire further into Ms. Redmond’s needs for
accommodation given Ms. Redmond’s prior articulation of why she needed the cell phone and
laptop and given the Medical Form.

However, based on the materials before me it was not until October, 2020 that JHS
sought a doctor’s note to explore Ms. Redmond’s requests for accommodations. As mentioned,
it will be open to the Tribunal at a hearing to determine whether or not Ms. Redmond took
“unnecessarily long delays in providing documents to substantiate [her] accommodation
claims”.

Finally, JHS argues that they could not accommodate Ms. Redmond without facing
undue hardship and state that they are a non-profit organization with financial limitations.
However, JHS have not provided any evidence on this application about what those financial
limitations are. I can only consider information that is before me and I cannot consider what

14
additional evidence might be given if there is a hearing: University of British Columbia v. Chan,
2013 BCSC 942 at para. 77.

Accordingly, JHS has not persuaded me they are reasonably certain to prove at a hearing

2024 BCHRT 219 (CanLII)

that they satisfied their duty to accommodate.

B. Should the retaliation allegation be dismissed?

Ms. Redmond claims that the November 30, 2020 termination of her employment at JHS
was in retaliation for either the prospect of filing the complaint or for filing the complaint.

JHS argues that Ms. Redmond’s retaliation allegation has no reasonable prospect of
success. More specifically, JHS argues that she has no reasonable prospect of providing a
sufficient connection between the filing of the complaint and the termination, and that it is
reasonably certain to establish a solely non-retaliatory explanation for the termination.

Section 43 of the Code protects people from retaliatory conduct for participating, or
possibly participating, in a human rights complaint process and states as follows:

A person must not evict, discharge, suspend, expel, intimidate, coerce, impose any
pecuniary or other penalty on, deny a right or benefit to or otherwise discriminate
against a person because that person complains or is named in a complaint, might
complain or be named in a complaint, gives evidence, might give evidence or otherwise
assists or might assist in a complaint or other proceeding under this Code.

Section 43 is an important part of the Code. It protects the integrity of the complaint
process, and is aimed at ensuring that people can exercise their rights under the Code without
fear of prejudicial consequences: JW v. LS, 2023 BCHRT 30 at para. 55.

Although Ms. Redmond does not need to prove her retaliation complaint in this
application, to succeed at a hearing she would have to show: JHS was aware of her complaint or
that she might complain to the Tribunal; JHS engaged in or threatened to engage in conduct
described in s. 43; and there is sufficient connection between the impugned conduct and the
complaint: Gichuru v Pallai, 2018 BCCA 78 [Pallai], at para. 58

15
 At a hearing, Ms. Redmond can prove the third element in one of two ways: Pallai, at
para. 59. First, by proving JHS intended to retaliate. This is the most difficult option as
respondents seldom acknowledge retaliation as such: C.S.W.U. Local 1611 v SELI Canada (No.
3), 2007 BCHRT 423 at para. 17. Alternatively, Ms. Redmond can prove a sufficient connection

2024 BCHRT 219 (CanLII)

by inference. This would require her to prove that JHS could be reasonably perceived to have
engaged in the conduct as retaliation for the complaint. The "reasonable perception," is
assessed from the point of view of "a reasonable complainant, apprised of the facts, at the time
of the impugned conduct", and not from the point of view of the particular complainant who
alleges retaliation: Pallai at paras. 58 and 66.

The Tribunal has confirmed that unlike the discrimination analysis under other sections
of the Code, the legal test is not whether a human rights complaint is "a factor" in the conduct,
but whether there is a "sufficient connection" to prove or infer retaliation: Brooks v Skyacres
Turkey Ranch Ltd. and others (No. 2), 2022 BCHRT 73, at para. 234.

I will review the three elements from Pallai to explain my reasoning to not dismiss Ms.
Redmond’s retaliation complaint.

1. Was JHS aware that Ms. Redmond “might complain” to the Tribunal?

In my view, Ms. Redmond’s allegations that JHS was aware that she might complain to
the Tribunal have been taken out of the realm of conjecture. JHS’ submission supports this
when they acknowledge that “Ms. Redmond first made a complaint that may be seen as
relating to human rights matters at her disciplinary meeting on September 1, 2020.”

In addition, in Ms. Redmond’s email to Ms. Namysl on October 19, 2020, Ms. Redmond
stated: “I feel like it’s best to let the Human Rights Tribunal intervene.”. Also, in Ms. Redmond’s
November 18, 2020 email to JHS she referred to her mental disabilities and “accommodations
being taken away” and that the Tribunal would be “good as a 3rd party to help us”. These emails
are evidence that could, at a hearing, support a reasonable conclusion that JHS was aware Ms.
Redmond might complain to the Tribunal.

16
 Therefore, I cannot say that Ms. Redmond has no reasonable prospect of persuading the
Tribunal that JHS was aware she might complain to the Tribunal, satisfying the first element of
the test for retaliation.

2024 BCHRT 219 (CanLII)

2. Did JHS engaged in or threaten to engage in conduct described in s. 43?

There is no dispute that Ms. Redmond can make out the second element from Pallai.
Her employment was terminated. The sole remaining issue before me is whether Ms. Redmond
has taken the allegation of sufficient connection out of the realm of conjecture.

3. Is there a sufficient connection between the termination and the complaint?

The JHS argue that they were not aware of the potential for a Tribunal complaint until
well after the decision had been made to terminate Ms. Redmond. It is unclear to me on the
materials when exactly the decision to terminate Ms. Redmond had been made and who made
it.

However, the temporal connection of Ms. Redmond being terminated in November

2020, after she mentioned the role of the Tribunal in her October 19, 2020 email to Ms. Namysl
and her November 18, 2020 email to JHS may give rise to a reasonable inference that the
termination was retaliation for Ms. Redmond potentially filing a complaint.

Further, the parties disagree on what are in my view foundational issues of the
complaint. The evidence before me is that JHS had performance concerns regarding Ms.
Redmond but other than a written warning for tardiness, there is no evidence JHS was applying
progressive discipline in order to make sure that their expectations were being met. Ms.
Redmond attests that she had no knowledge that JHS had concerns with her behaviour. She
says she did not behave the way JHS describes, did not receive coaching, and she was shocked
to be terminated. I am unable to resolve the conflicts in evidence on these foundational issues
on this preliminary application.

17
 Ms. Redmond has taken the allegation of sufficient connection between the November
2020 termination and a potential complaint out of the realm of conjecture and I am not
persuaded to exercise my discretion to dismiss her s. 43 complaint.

2024 BCHRT 219 (CanLII)

IV CONCLUSION

JHS’s application to dismiss Ms. Redmond’s complaint based on s. 27(1)(c) of the Code is
denied.

I encourage the parties to take advantage of the Tribunal's mediation services to try to
resolve this matter by mutual agreement.

__________________________________
Christopher J. Foy
Tribunal Member

18