In a recent decision by the British Columbia Human Rights Tribunal (the "BCHRT"), a complaint lodged by Patricia Gendron ("Ms. Gendron") was dismissed as against her former employer, Koppert Canada Ltd. ("Koppert"). Specifically, Ms. Gendron alleged that she had been discriminated against on the basis of disability, but the BCHRT held that there was no reasonable prospect that Ms. Gendron's symptoms stemmed from a disability, and dismissed the complaint pursuant to Section 27(1)(c) of the Human Rights Code, RSBC 196, c 210 (the "Code"). Section 27(1)(c) of the Code permits the BCHRT to dismiss a complaint where there is no reasonable prospect that it will succeed at trial.
Ms. Gendron worked for Koppert as a technical consultant and a key part of her role involved using a company vehicle to conduct site visits to clients. Eventually, Ms. Gendron became the dedicated employee responsible for conducting site visits to one of Koppert's clients, a large cannabis producer. She attended their facility for approximately ten hours per week.
Ms. Gendron notified Koppert in 2019 that she was unable to fulfill her employment duties for "safety, physical, and legal reasons" following site visits to the cannabis production client. She claimed that she was experiencing a "contact high" and felt "off" after spending time in the facility, and that these sensations impacted her ability to drive and perform her office duties.
Koppert expressed concern over Ms. Gendron's safety and requested medical information from Ms. Gendron in relation to these symptoms and their impact on her ability to fulfill employment duties. They advised that without further medical information, Ms. Gendron was unable to safely perform her duties as a technical consultant. They offered Ms. Gendron the choice to either perform modified warehouse and office duties, or take an unpaid administrative leave until the medical information was provided. Ms. Gendron proposed a third option of being placed on a medical leave of absence, which Koppert advised would not be available without the necessary medical information. Ms. Gendron also proposed a fourth option of continuing employment duties as a technical consultant, but without visits to any cannabis clients. Koppert advised that this option was not feasible, given that cannabis clients form a large portion of their clientele.
Ms. Gendron presented Koppert with two notes from her doctor regarding her symptoms. One indicated that Ms. Gendron was unfit for her normal duties for an 8-week period. The other noted that Ms. Gendron did not have "any medical restrictions with her regular duties as a Technical Consultant or her ability to operate a vehicle", and that she only required accommodation in the form of removing cannabis clients from her portfolio.
Koppert advised that the medical evidence provided by Ms. Gendron was contradictory. Again, they offered her modified duties pending an independent medical examination by an occupational health physician. Ms. Gendron did not accept to this proposal and instead, resigned from her position and alleged that she had been constructively dismissed. She filed a human rights complaint in 2020 on the basis that Koppert had discriminated against her due to her disability.
Koppert brought an application to dismiss Ms. Gendron's complaint. In the application, the BCHRT sought to determine whether there was a reasonable prospect that findings of fact could be made to support the complaint after a full hearing of the evidence. In making such a determination, the BCHRT may only rely on materials filed by the parties and it cannot speculate on what evidence may be filed at the hearing. This was an important factor, as Ms. Gendron had failed to submit further evidence beyond records of her communications with Koppert surrounding the events that gave rise to the complaint.
With these complaints, the burden is always on the complainant to prove that they are protected from discrimination based on an actual or perceived disability. The BCHRT acknowledged that an employer's duty to accommodate is only triggered by a complainant's "disability-related needs". Ms. Gendron alleged that her disability was a "mild contact high" stemming from exposure to cannabis crops. She claimed that spending time at cannabis crops made her feel "different" and "off" and impacted her ability to drive. However, the medical evidence provided by Ms. Gendron failed to identify any medical condition leading to these symptoms. The BCHRT concluded that there was no reasonable prospect, based on the evidence before it, that Ms. Gendron could prove that the sensations she experienced stemmed from an actual disability. The BCHRT also advised that there was no evidence that Koppert perceived Ms. Gendron to have a disability. It acknowledged that Koppert's requests for medical information were made in response to a request for accommodation and were aimed at resolving contradictory and unclear information about Ms. Gendron's conditions.
Ultimately, this decision highlights that an employer is not required to provide accommodations where there is no actual or perceived disability. It also emphasizes the importance of having clear medical evidence to support a complaint for discrimination on the basis of disability.
In dismissing Ms. Gendron's complaint, the BCHRT acknowledged that there had been missed opportunities between Koppert and Ms. Gendron for dialogue and collaborative solutions that may have been less disruptive than the options that Koppert provided. This decision serves as a reminder that employers and employees should work together to identify and provide reasonable accommodations.
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