In the Matter of the Human Rights Code R.S.B.C. 1996, c. 210 (as amended)
In the Matter of a complaint before the British Columbia Human Rights Tribunal
Blake Forrest, Complainant and Bakken Construction Ltd. and Randy Bakken, Respondents
Kurt Neuenfeldt Member
Heard: May 25 – August 26, 2010
Judgment: March 1, 2011
Docket: 5633
2011 BCHRT 44
Counsel: Jennifer Whately, for Complainant
Ib S. Petersen, for Respondents
Kurt Neuenfeldt Member:
- Introduction
1 Blake Forrest filed a complaint alleging that Bakken Construction Ltd. (”Bakken Construction”) and its owner, Randy Bakken, discriminated against him in employment, on the basis of a physical disability, contrary to s. 13 of the Human Rights Code.
2 Mr. Forrest worked for the respondents for about ten months, from July 2006 until May 2007. In 2007, he alleges he suffered from a series of health problems which he says constituted physical disabilities. Mr. Forrest’s complaint concerns his assertion that rather than accommodate his disabilities in the workplace to the point of undue hardship, the respondents terminated his employment.
3 The respondents deny that they discriminated against Mr. Forrest. They say his employment ended when he negotiated and accepted a severance package.
- Determination
4 On reviewing the evidence as a whole, I conclude that Mr. Forrest has not proven his case.
- Structure of the Decision
5 In this decision, I first review the allegations contained in the complaint form. I then set out some of the non-contentious background information, and then the evidence of the witnesses as to communications between Mr. Forrest and the respondents over the spring, summer and fall of 2007. I then set out some key findings of fact. Thereafter, I give my analysis, and state my final determination.
- Witnesses and Documentation
6 Mr. Forrest gave evidence on his own behalf. I heard from Mr. Bakken and Kia Rich, Bakken Construction’s former office administrator, on behalf of the respondents.
7 Although I have considered all the evidence presented, in these reasons I set out only that evidence necessary to put my decision into context. In making my credibility findings, I note that I am entitled to accept some, none, or all of the witness’ testimony.
8 Where there are evidentiary issues in dispute, I have kept in mind the well-known considerations set out in Faryna v. Chorny (1951), [1952] 2 D.L.R. 354 (B.C. C.A.) (”Faryna”) when assessing the probative value of the evidence. I have considered such factors as the witness’ demeanour, powers of observation, opportunity for knowledge, judgment, memory, and ability to describe clearly what was seen and heard. I have also considered whether the evidence of each witness is in “harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions”: Faryna, p. 357.
9 Overall, I found that Mr. Forrest was not a reliable witness in key areas. His memory was often faulty, and at times his evidence was contradictory, inconsistent, and not credible. While there were some inconsistencies in the evidence of the respondents’ witnesses, I found their evidence to be generally more reliable.
10 Quotations from documents are reproduced as in the originals, with the exception of wording in square brackets. Unless otherwise stated, events described in this decision occurred in 2007.
- The Complaint Form
11 The allegations in the complaint (as amended) are brief:
Original Complaint:
January: Mr. Forrest started to feel ill.
May 6: Mr. Bakken laid off Mr. Forrest due to illness. Mr. Forrest forced to go on medical leave.
June 25: While on sick leave, Mr. Bakken terminated Mr. Forrest’s employment, due to his illness.
August 23: Mr. Forrest received a Record of Employment (”ROE”) from Bakken Construction.
Complaint Amendment, March 5, 2008:
Unspecified date: Mr. Forrest diagnosed with Hepatitis C (contracted from blood transfusion).
September 2007: Canada Pension Plan (”CPP”) granted Mr. Forrest a full disability pension.
- The Evidence
- Background Information
12 Bakken Construction is a small residential construction company owned and managed by Mr. Bakken. The company specialized in “high end” custom built homes, and usually had a core group of eight to thirteen employees. During the various phases of construction, numerous sub-trades work on-site with Bakken employees. During the time in question, Bakken Construction was working on one project at a time.
13 Mr. Forrest is a skilled finishing carpenter. He began working full-time for Bakken Construction on July 10, 2006, as a site foreman, at $35 an hour. Bakken Construction’s operations were relatively informal. The company was not unionized and did not have an employee benefits plan. The company did not have written employment contracts, and did not conduct formal performance reviews.
- Mr. Forrest’s Evidence
14 Mr. Forrest testified that he has been a cabinet maker and finishing carpenter for about 16 years. In the spring of 2006, he took a job as a site superintendent for Bakken Construction for better pay. As site superintendent, Mr. Forrest was not ‘on tools’, but was primarily responsible for supervising the sub-trades at the worksite. His main duty was to keep the building project on schedule.
15 Mr. Forrest testified that the company expected him to work some overtime, and that he could bank the overtime to use in lieu of vacation or sick leave. He was paid time and a half for overtime.
16 It was Mr. Forrest’s view that things were going well for him at Bakken Construction. He testified that Mr. Bakken never reprimanded him or warned him about his performance. Mr. Forrest believed he was a productive and reliable employee. He tried to be flexible in responding to work needs, and went so far as to check a worksite over the 2006 Christmas holiday shut-down, to make sure everything was in order.
17 At the hearing, Mr. Forrest testified that prior to May 2007, his health was fine, and that he had no major problems. In cross-examination, he was directed to his statement in his complaint form that he began to feel ill January 2007. He stated that it was nothing severe, so he discounted it. At the hearing, he stated that in May, he began to feel tenderness in his abdomen. He suspected the problem might be kidney stones, as he had had the same complaint several years earlier.
18 Mr. Forrest says that on Monday, May 7 (not May 6 as alleged in the complaint), he told Ms. Rich that he was not feeling well, and then waited for Mr. Bakken to arrive at the worksite, so that he could bring him up to date on the work being done. After their conversation, Mr. Bakken told Mr. Forrest to leave if he needed to.
19 Mr. Forrest went to see his family doctor, who confirmed, after a short delay, that he had kidney stones. Mr. Forrest agreed in cross-examination that he did not mention the fact that he had kidney stones in his original complaint form, but only mentioned hepatitis C, and then only in an amendment filed three months after the initial complaint.
20 In cross-examination, Mr. Forrest agreed that he contacted Ms. Rich on May 10 and 11 to discuss his condition, and told her that he did not know when he would be returning to work. It was his recollection that Ms. Rich suggested she could issue an ROE based on him being ill, since there was no company-sponsored sick leave.
21 On May 15, Bakken Construction issued an ROE based on illness so that Mr. Forrest could qualify for employment insurance (”EI”) sickness benefits. Mr. Forrest testified that he had never needed to apply for EI sickness benefits before, as he had always worked for employers with sick leave benefits. As of May 15, he believed he was on sick leave from work. He agreed in cross-examination that he applied for EI sickness benefits on May 16. He also testified that at this time, he thought he would be off work for about three weeks.
22 Mr. Forrest testified that he was treated for kidney stones on May 25, and that afterwards he was badly bruised and found it hard to move. After two weeks, he started to feel better, but also continued to feel discomfort. As a result, he went to see his doctor who did a number of tests to determine what the problem was.
23 On June 4, Human Resources and Skills Development Canada (”HRSDC”), which administers the EI plan, wrote to Mr. Forrest, and confirmed that he qualified for EI sickness benefits from May 6 to June 30. The HRSDC letter states that if he was still incapable of working at the end of that period, he would have to provide additional medical evidence in order for the benefits to be continued. The benefits were subject to a two-week waiting period, during which no benefits were paid.
24 Mr. Forrest agreed he had provided HRSDC with medical certificates attesting to his inability to work on May 18 and on June 21. The June 21 report stated his expected recovery date was October 1.
25 At the hearing, Mr. Forrest was asked by his counsel if he had a phone conversation with Mr. Bakken on May 15, as stated in an affidavit sworn by Mr. Bakken prior to the hearing. He replied that he had not. In cross-examination, he was referred to his own affidavit, sworn on November 12, 2008, in which he mentions a conversation he had with Mr. Bakken on May 15. He then said he might have had a conversation with Mr. Bakken on that date, but that it was not as Mr. Bakken described it. He added that he had a lot going on in his life at that time. He then agreed that there could be other errors in his evidence.
26 In cross-examination, Mr. Forrest stated that Mr. Bakken never suggested to him during the call that there were concerns about his performance, or that he could not continue on as site foreman but “on tools”. He disagreed that Mr. Bakken told him he could look after the installation of hardware in the construction site. He also denied telling Mr. Bakken that he would not work under the person who would replace him as site foreman.
27 Mr. Forrest also denied that during the conversation, Mr. Bakken said he was prepared to give him two weeks of severance if he did not want to go back on tools, and that Mr. Forrest then asked for three weeks of severance. Finally, Mr. Forrest denied that the employment relationship came to an end during the May 15 conversation by mutual agreement.
28 Again in cross-examination, Mr. Forrest was directed to a cheque from Bakken Construction to him for $3,291.66, which Bakken Construction issued on May 16 and which he negotiated on May 17. He agreed that it appeared to be payment for three weeks of work at the normal rate, and an average of five hours per week of overtime. It was based on payment for hours worked and overtime in the amount of $5,187, minus statutory deductions. I will return to the importance of this cheque later in the decision.
29 Mr. Forrest maintained in his direct evidence that he told Ms. Rich in about mid-May that he had been diagnosed with hepatitis C. He also said he kept Bakken Construction and Ms. Rich up to date about his condition, contacting them whenever he found out something new. He says he was treated for kidney stones on May 25, and that it took about two weeks for him to heal. In cross-examination, he maintained that he kept in touch with Bakken Construction through Ms. Rich about his medical condition, because he had no reason to think that he was no longer working for the company.
30 Mr. Forrest was asked in cross-examination how it could be that he maintained that he could work while at the same time qualifying for EI sickness benefits. He replied that it was his doctor’s opinion that he could not work, and then asked rhetorically ‘do you always do what your doctor tells you to do?’ He then said he knew how he felt better than his doctor did. When asked why he did not inform EI that he could work, he stated that he did not give EI the new information because nothing had changed. Mr. Forrest then stated that he knew that he would not get sick benefits if he was not ill. Finally, he stated he had no reason to change the information he was giving EI if he was not working. He was always willing to work, but if he did not work, he was not going to say that he had.
31 Mr. Forrest testified that he continued to have discomfort after the kidney stone treatment. He returned to his doctor, and was diagnosed as having hepatitis C, a treatable form of the disease.
32 Mr. Forrest was referred to a medical/legal report prepared by one of his treating physicians. The report states that he first went to the hospital because of pain on May 7, whereupon he was given a CT scan that revealed some kidney stones. He saw urologists on May 15 and 24, and was treated for kidney stones on May 25.
33 The report states that when the CT scan and blood screening were done, it was noted that he had elevated liver enzymes and an abnormal abdominal condition. According to the report:
Blood tests performed on 18 May 2007 and reported on 24 May 2007 revealed that Mr. Forrest was hepatitis C positive.
34 The doctor notes that he consulted with a gastroenterologist on June 16, who saw Mr. Forrest on August 23 and again on September 13, 2007. Further blood tests on those dates confirmed and refined the diagnosis.
35 Mr. Forrest maintained that he knew before the May 18 and 24 blood tests that he had hepatitis C, because his doctor had told him, and that the blood tests were just a precaution. Later in his evidence, he agreed that there were no blood test reports about hepatitis C until May 24. As a result, he agreed that according to his own medical records, he could not have discussed having hepatitis C with Ms. Rich on May 15, as he earlier claimed, but could have been off by a few days.
36 Mr. Forrest says that on about June 24, he felt he was able to go back to work, and spoke to Ms. Rich about doing so after the long weekend, perhaps part-time. Mr. Forrest thought Ms. Rich seemed pleased with his suggestion.
37 Mr. Forrest says that on June 25, Mr. Bakken called him and told him not to return to work. Mr. Forrest says he pleaded with Mr. Bakken to keep his job, but got nowhere. He testified that it was a major slap in the face to lose his job in this manner.
38 Mr. Forrest maintained that Mr. Bakken did not suggest he come back to work part-time, or suggest or ask about any other return to work arrangements that might be possible.
39 Mr. Forrest denied a statement in Mr. Bakken’s affidavit that Mr. Bakken had offered Mr. Forrest work as a carpenter, rather than as site foreman. Mr. Forrest stated at the hearing that had Mr. Bakken done so, “I would have jumped at it.”
40 Mr. Forrest stated that he felt like he was being kicked when he was down, and that it felt as if his whole world was collapsing. He had never intended to quit his job, and had never been warned that there were problems. He disagreed with the suggestion put to him in cross-examination that Mr. Bakken spoke to him several times about performance issues.
41 Mr. Forrest was referred to a second ROE issued by Bakken Construction, with an issue date of August 23. The ROE indicated that the reason it was issued was that he had been dismissed, and that his last day of work was May 15. Mr. Forrest stated he did not receive this ROE until August. When asked why he asked for it, he replied that it was for his own files, but not for any purpose related to his application for the CPP disability pension. He then said that when one quits or is fired from a job, ‘no one helps you’. I take this to mean that he would not be eligible for EI benefits if he were fired or had quit. The form contains the following handwritten notation on the employee copy:
Termination date via phone Monday, June 25, 2007
Mr. Forrest maintained in cross-examination, in keeping with the information on the ROE, that the respondents had fired him on June 25 because he had kidney stones and hepatitis C.
42 Mr. Forrest went on to testify that the hepatitis C treatment he needed would involve chemotherapy for about six months. He believed that if he applied for a new job, he would have to disclose his circumstances to a prospective employer, with the result that it was unlikely he would be hired. In cross-examination, he stated that he had put in some applications for work. Mr. Forrest did not file any documentation to support the assertion that he had looked for work (for example, a list of prospective employers). He later stated that once he was diagnosed with hepatitis C, he never looked for work. He agreed that his opinion — that no one would hire him — was not based on direct experience.
43 In cross-examination, Mr. Forrest said he understood that it was Bakken Construction’s position that his employment had ended on May 15, and that the company had paid him $3,291.66 (again, $5,187 minus statutory deductions) on May 16 as severance. He maintained at this point in his evidence that the payment was for the hours he had worked to that date and for the overtime pay he was owed.
44 Some time was spent at the hearing reviewing the paystubs Mr. Forrest received from Bakken Construction in April and May. He agreed he was paid every two weeks, and that his paystubs normally set out his regular and overtime pay. He also agreed that the payroll summary for the company, covering April 30 to May 13, listed him as being paid for 40 regular hours and 16.33 overtime hours. However, he then said he was not sure if he received a payment from Bakken Construction covering this time, and that he did not have a pay stub for it.
45 Mr. Forrest also agreed that he had not disclosed to the respondents the direct deposit pay stub he received from Bakken Construction on May 18. Eventually, he agreed that the monies he received on that date from Bakken Construction were for 40 hours of regular time and 16.33 hours of overtime.
46 During the course of the hearing, counsel for Mr. Forrest conceded that after having a chance to review his financial records, Mr. Forrest concluded that he had received two payments from Bakken Construction between May 16 and 18, not one as he earlier maintained.
47 Mr. Forrest testified that his financial situation became difficult by the end of August, forcing him to borrow money from his mother, and taking odd jobs for his brother.
48 About a month before exhausting his EI sickness benefits, Mr. Forrest applied for Canada Pension Plan (”CPP”) disability benefits. He says that an EI counsellor recommended that he do so.
49 Mr. Forrest stated he had to apply for CPP in order to have some income to help support his family. He also said he would have been allowed to earn a certain amount without his CPP payment being reduced.
50 In cross-examination, Mr. Forrest agreed that the CPP Application Guide states that in order to receive the benefit, an individual must have a severe and prolonged mental or physical disability. He also agreed that “severe” is defined as a condition that renders “a person incapable of regularly pursuing any substantially gainful occupation”. Mr. Forrest stated that the document is not referring to a position he already has, but added that he understood what the statement meant. Later in his evidence, he agreed that, as required to receive CPP benefits, he had a severe physical disability rendering him incapable of working in any occupation.
51 Mr. Forrest’s counsel referred him to a medical report completed by his doctor for his CPP application. In that report, dated September 17, the doctor states that Mr. Forrest has hepatitis C, and that he will be starting treatment soon. The report goes on to note that as a result of the condition, Mr. Forrest was suffering from extreme fatigue, abdominal pain, and nausea. The doctor notes he had been treating Mr. Forrest for the condition since May 2007, and indicates that Mr. Forrest would be too ill to work for six to eighteen months, and possibly longer, once the treatment began.
52 At the hearing, Mr. Forrest maintained that he would have been able to work at the end of the summer, when he applied for CPP, but before his EI payments ran out. He could have done at least part of his old job at Bakken Construction, or he could have done light carpentry for the company. In cross-examination Mr. Forrest confirmed that he believed he was able to work three days per week (or 60% of full-time) for the period running from June 18, 2007, until July 31, 2008. This necessarily means he believed he could have worked 60% of a full-time position while he was receiving CPP disability benefits, which he agreed were payable only if he had to have a severe and prolonged disability.
53 Mr. Forrest was approved for CPP in January 2008, and received his first CPP benefit payment in February 2008. He began treatment for his condition in April 2008, and it carried on until September or October 2008. He testified that his doctors have since told him that the hepatitis C is not only in remission but has disappeared. At the time he gave his evidence, he was still receiving CPP benefits.
54 A great deal of time was spent at the hearing on the issue of Mr. Forrest providing a copy of the application he filled out to obtain CPP disability benefits. In the end, it was never provided. He said he could not find his copy, and that he had been unsuccessful in obtaining one from CPP. He also testified that he could not remember what he said in that document.
55 In the end, Mr. Forrest agreed that he had a severe disability that rendered him incapable of working in any occupation, which he again confirmed was a pre-requisite for receiving CPP benefits.
- Ms. Rich’s Evidence
56 Ms. Rich was the full-time office administrator for Bakken Construction. She testified that because of the economic recession in 2008, the company had to shut down its operations and lay everyone off. She was the last person to work full-time for the company. In the fall of 2008, she switched to working two hours a week and stopped working for Bakken Construction entirely in October 2009.
57 Ms. Rich testified that she interacted with Mr. Forrest daily while he worked for Bakken Construction, as she worked out of an office on the construction site. As part of her duties, Ms. Rich looked after the office payroll, including the payments to Mr. Forrest.
58 Ms. Rich identified many of the business documents that the respondents submitted at the hearing, including the payroll records. She noted that her job responsibilities did not extend to making hiring and firing decisions. Those were left to Mr. Bakken.
59 Ms. Rich stated that after Mr. Forrest left, another employee took over his duties as site foreman. Prior to his illness, Mr. Forrest had not gotten along well with his replacement.
60 Ms. Rich noted that Bakken Construction paid its employees by direct deposit on a bi-weekly basis, and that on each Friday payday, she prepared an envelope for all the employees that contained a pay stub and a statement of the person’s overtime bank. She stated that the company’s payroll records confirmed that Bakken Construction deposited Mr. Forrest’s last regular paycheque in his account on Friday, May 18. The payment was for work done between April 30 and May 11. It was for considerably less than the usual amount he earned for two weeks of work, as he only worked for 40 hours in the first week and 4.5 hours in the second, when he became ill. She never heard any suggestion from Mr. Forrest that Bakken Construction had not paid him for his regular hours or overtime on this last cheque.
61 Ms. Rich was directed to what she described as her daily log for her work at Bakken Construction. She used the book to record things she needed to remember or pass on. One of her entries for May 10 was made as a result of a phone call from Mr. Forrest. The note is as follows:
Blake-
- Stones in both kidneys.
- Seeing urologist,
- Trying to see him asap,
- Trying to have surgery
- lay off for med EI
62 Ms. Rich said that when she spoke to Mr. Forrest on that date, she told him that since it looked like he would be off of work for some time, she would issue an illness ROE for him. After two weeks away from work, he could begin an EI claim.
63 Ms. Rich’s journal entry for May 11 concerning Mr. Forrest were brief:
Blake — next Tues dr
Blake wont be in Friday
64 Ms. Rich testified that the notes recorded Mr. Forrest’s advice to her that he would not be in that day, and that he had an appointment with an urologist on Tuesday, May 15, the following week.
65 Ms. Rich testified that she had another conversation with Mr. Forrest on May 15. He told her that it had been confirmed that he had kidney stones in both kidneys, and that he did not know when he would be able to return to work. He also asked Ms. Rich to have Mr. Bakken call him. Ms. Rich confirmed she did not have a note about this conversation in her journal, but had a note in her personal note book which stated “make Blake an ROE”.
66 Ms. Rich maintained that Mr. Forrest never mentioned having hepatitis C to her during any of the May conversations, but only raised it much later, likely in the fall.
67 Ms. Rich was next directed to events that occurred on May 16. According to her, Mr. Bakken instructed her to pay Mr. Forrest three weeks of severance. Ms. Rich says she was again shocked, as she did not think it was the company’s responsibility to pay him severance, given that he had not worked for the company for more than a year, and that in any event, two weeks of severance would be sufficient.
68 Despite her misgivings, Ms. Rich carried out Mr. Bakken’s direction, as it was his decision to make. Included in the business records filed at the hearing were Ms. Rich’s contemporaneous handwritten notes of her calculation of the severance. The relevant part of the notes are as follows:
pd 3 wks severance pay on termination.
Average @ 40 REG hrs/wk plus 5 O.T. hrs/wk
| = 120 REG HRS = | 120 |
| + 15 OT hrs = | 22.5 |
| 144.5 hrs × $35/hr | |
| = 4987.50 | |
| 199.50 4% vac | |
| $5187 |
69 Ms. Rich confirmed that there was no indication on the company’s copy of the cheque that it was a severance payment. Rather, she made a note to that effect on the cheque stub given to Mr. Forrest. Ms. Rich agreed that there was no letter or other documentation setting out the terms of the severance. The severance cheque was issued two days before Mr. Forrest’s last regular paycheque was to be issued.
70 Ms. Rich noted that Mr. Forrest contacted her during the third week of June. He stated that he was ready to return to work. Ms. Rich was surprised to hear this because she believed he was no longer employed by the company. However, as it was not something she could comment on, she told him to call Mr. Bakken.
71 Ms. Rich conceded that her recollection of this conversation was contrary to her statement in an affidavit sworn in October 2008. In that affidavit, she stated that she did not hear from Mr. Forrest between May 15 and August 21, when he requested a second ROE.
72 Ms. Rich testified that on August 21, Mr. Forrest called her, demanding that she issue a ‘correct’ ROE. He began the conversation in an angry tone, but calmed down as it went on. As Ms. Rich understood the issue, the May ROE was not a statement that he had been permanently terminated, a status he said he needed in order to proceed with his CPP application. During the conversation, Mr. Forrest told Ms. Rich that Mr. Bakken had fired him over the phone on June 25.
73 When Ms. Rich told Mr. Bakken about the request for a new ROE, he told her to give Mr. Forrest what he wanted. Also on Mr. Bakken’s direction, she first called the EI help line on August 22 for advice. She testified that she noted the information she obtained from that source in her log. According to the advice from EI, Mr. Forrest was still an employee, unless he had been told not to come back. The remainder of her notes on the topic are as follows:
- when he phoned & told us he could work sometime w/in 6 weeks, and we told him not to bother, position had been filled, that’s when we technically fired him
- However, we didn’t do anything wrong by firing him, or in the way we fired him, b/c there are no regulations in BC
- also, we gave him more than required 1 wk term. pay.
- Construction — no notice of term pay required
- Ex-employees can sue for wrongful dismissal —
- this is not a wrongful dismissal case.
74 Ms. Rich told her office assistant to fill out a second ROE that indicated Mr. Forrest’s employment had been terminated. She said she was unsure about what to state on the document, when to her knowledge there had been a mutual decision to end the employment relationship. She agreed that the ROE was contrary on its face to what she maintained in her testimony, that is, that his employment had ended on May 15.
75 Ms. Rich repeated that the first time she and the others at Bakken Construction heard that Mr. Forrest had hepatitis C was likely in the fall of 2007, when he called her. She recalled writing a note to that effect in her log book at the time, but then erasing it, because anyone looking at the log book could see it. She recalled that there was discussion in the office about the news, during which someone recalled that a contractor who had done work for Bakken Construction had also had the condition.
76 Ms. Rich testified that because Mr. Forrest had called on June 24, that was the date she used when he requested his second ROE. The previous ROE was only for medical leave.
77 Ms. Rich confirmed in cross-examination that she did not hear from Mr. Forrest from June 24 until August 21. After he called on August 21, she contacted ROE help line on the next day, and, as a result, had her office assistant complete the second ROE on August 23. According to Ms. Rich, Mr. Forrest said he wanted the new ROE as his medical ROE had run out and he could not get a CPP pension until a new ROE was issued. When reminded that Mr. Forrest had testified that he did not need an ROE in order to obtain the CPP pension, Ms. Rich asked, if this were the case, why did he call her and yell at her about it? She had no comment on his statement that he only asked in August for a new ROE to show the truth of his situation.
- Mr. Bakken’s Evidence
78 Mr. Bakken described his company as operating on a fairly casual basis. He did not give Mr. Forrest a job description, and there was, in his mind, no probation period. When he hired Mr. Forrest a few months into a project, it was an experiment of sorts, as he had never had a site foreman working for him. He hoped that having Mr. Forrest in place would allow him to spend more time away from the worksite, generating more work and possibly running more than one project at a time.
79 From Mr. Bakken’s point of view, there were some issues with Mr. Forrest’s work from early on. According to him, Mr. Forrest was better at some aspects of the construction process than others. In January 2007, Mr. Bakken brought in another site foreman, but that person soon left, saying he could not work with Mr. Forrest. Mr. Bakken thought Mr. Forrest was concerning himself with issues that were not important, such as keeping a careful control on the inventory of tape measures and pencils the crew was using. His attitude towards these issues was unnecessarily irritating the other workers.
80 From Mr. Bakken’s point of view, Mr. Forrest was trying to take more day to day control on the worksite in a manner that was not productive. In April 2007, Mr. Bakken told Mr. Forrest that he would not be involved in an upcoming project. This information led to a heated conversation between them.
81 Mr. Bakken testified that he and Mr. Forrest had discussed his problem with kidney stones prior to May 7. On May 7, it was clear that Mr. Forrest was in pain. Mr. Bakken agreed that he did not require a medical note from Mr. Forrest when he went on sick leave, as he took him at his word.
82 Mr. Bakken agreed that initially Mr. Forrest kept him informed, through Ms. Rich, as to his medical condition. He eventually learned that Mr. Forrest would have to have the kidney stones removed.
83 On May 15, Mr. Bakken called Mr. Forrest at his request. They briefly discussed his medical condition. Mr. Forrest then brought up the fact that his son-in-law, who also worked for Bakken Construction, had told him that there was another person working as the site foreman. Mr. Bakken suggested that they could talk about this development immediately on the phone, or later in person, to which Mr. Forrest replied that he wanted to discuss the matter then.
84 Mr. Bakken told Mr. Forrest that he was still spending too much time on the worksite, and that when he was there, Mr. Forrest seemed to follow him around all day. In essence, Mr. Bakken had concluded that Mr. Forrest was not working out in the site foreman role. Mr. Bakken testified that he then told Mr. Forrest that he could come back to work when he was able, but would be ‘on tools’, rather than continue as the site foreman, and that he would be working under the new site foreman. However, Mr. Forrest declined to do so, saying he could not work under that person, as he did not like him. It was not clear from the evidence what rate of pay Mr. Forrest would receive had he returned to work ‘on tools’. Mr. Bakken testified that he would have replaced Mr. Forrest with another foreman in May, even if he had not had the problem with kidney stones.
85 Mr. Bakken went on to testify that over the years, he had accommodated a number of employees. He was willing to accommodate Mr. Forrest at the current project, but Mr. Forrest turned his offer down. At the time of their May 15 discussion, as far as Mr. Bakken knew, Mr. Forrest was only facing a problem with kidney stones, not the more serious condition of hepatitis C.
86 Mr. Bakken also testified that Mr. Forrest would have been well aware of the fact that the job market in Vancouver for persons with his skill set was very good at the time. Implicit in this was the belief Mr. Bakken had that Mr. Forrest could easily find replacement work once he was treated for and recovered from his bout of kidney stones, so that leaving his employment with Bakken Construction was not a particularly serious matter.
87 After Mr. Forrest said he would not work under the new site foreman, During their phone conversation, Mr. Bakken commented to Mr. Forrest that that appeared to be the end of the matter, whereupon Mr. Forrest asked for severance pay. Mr. Bakken offered two weeks, whereupon Mr. Forrest said he wanted three weeks of severance. Mr. Bakken testified that he agreed to pay three weeks, although he did not think he was obliged to. He felt bad about the situation, as things had not worked out as he had hoped, and he knew Mr. Forrest would not be working for a time because of the kidney stones.
88 Mr. Bakken stated that after they agreed to part ways upon payment of the three weeks of severance, he offered Mr. Forrest a few hours a week of work installing hardware in the house, but Mr. Forrest again declined. In any event, at the end of the call Mr. Bakken believed that the employment relationship had come to an end.
89 Mr. Bakken testified that he found Mr. Forrest’s June 24 call to Ms. Rich odd, in that he knew his employment had ended, and that there was no job to come back to.
90 It was Mr. Bakken’s testimony that he never spoke to Mr. Forrest again after May 15. He testified that he did not have any recall of a conversation with Mr. Forrest on June 25 as Mr. Forrest alleged.
91 Mr. Bakken recalled Ms. Rich telling him that Mr. Forrest called her on August 21, wanting another ROE. Mr. Bakken told her to issue another one, but to first call EI to find out exactly what to do. As far as Mr. Bakken knew, that is what she did. He had no other direct involvement with the second ROE.
92 Mr. Bakken offered the opinion that if Mr. Forrest asked for a specific date to be put in the second ROE, Ms. Rich would have complied with the request. The end of the employment relationship had been relatively amicable, and Mr. Bakken was prepared to try to help Mr. Forrest out.
93 Mr. Bakken testified that he did not know that Mr. Forrest had hepatitis C until September or October, when Ms. Rich told him. He and Ms. Rich had a brief discussion about the implications of having the condition, and how it had affected other workers they had known.
94 Mr. Bakken went on to say that it would have made no difference to him if Mr. Forrest had told him earlier that he had hepatitis C. The only issue was whether or not a person can work. As I understand Mr. Bakken’s evidence, if Mr. Forrest had been able to and wanted to, he could have continued on working for Bakken Construction, albeit in a different position, regardless of the nature of his condition, if he was able.
95 Mr. Bakken was asked about a decision made by the Board of Referees, the appeal body for EI disputes, that the payment of $5,187 by Bakken Construction was not severance, but wages for work done. He stated that Bakken Construction had answered a query from EI as to the nature of the May 16 payment to Mr. Forrest. Bakken Construction told EI that it was severance, while Mr. Forrest maintained that he never received any severance from the company. During the investigation, Bakken Construction provided the EI office with a copy of the cancelled severance cheque.
96 When Mr. Forrest went through the appeal process, the Board of Referees determined that the payment was made, but that it could not be characterized as severance, as that is not what was indicated on the ROE issued by Bakken Construction. In its decision, a copy of which was filed at the hearing, the Board of Referees noted that Bakken Construction had failed to take the opportunity the Board gave to it to amend the ROE it issued for Mr. Forrest in August.
97 At the hearing, Mr. Bakken confirmed that he had received the information about Mr. Forrest’s challenge as to the nature of the payment to him, but said that he had not attended to the documents sent to him by the Board of Referees. By the time he received the materials, Bakken Construction had downsized significantly, and the correspondence was put away unopened until it was too late to respond.
98 I note that in any event, the Board of Referees determined that Bakken Construction had paid Mr. Forrest the money. The only issue was whether it was classified as severance or pay for work done.
- Findings of Fact
99 The parties base their submissions on fundamentally different assertions of fact. Therefore, I will set out the areas of dispute on the facts, followed by my findings, before reviewing the relevant submissions on the law.
- Mr. Forrest’s Performance Prior to May 7
100 It is common ground that Mr. Forrest did not have a written employment contract with Bakken Construction. The company did not conduct formal documented performance reviews.
101 There is disagreement as to whether Mr. Bakken told Mr. Forrest that there were concerns with his performance. Mr. Bakken says there were several issues that he brought to Mr. Forrest’s attention over time. Mr. Forrest says no concerns were ever raised. In my view, given my other findings of fact that follow, it is more likely than not that there were discussions between Mr. Bakken and Mr. Forrest as to Mr. Forrest’s performance.
- Did Mr. Forrest and Mr. Bakken Have a Discussion on May 15
102 It is common ground that Mr. Forrest took time off work on May 7 because of pain, and that his suspicion that he was suffering from kidney stones was confirmed by his doctor a few days later.
103 It is also common ground that on May 15, Mr. Forrest informed the respondents that his doctor had confirmed the diagnosis of kidney stones, and that he would be off work for an unspecified time because of them. Just prior to that date, Ms. Rich suggested he apply for EI sickness benefits, which he did. The EI coverage was approved first for four weeks, and eventually until approximately the end of August. The ROE Ms. Rich prepared for Mr. Forrest did not give a specific return date.
104 In my view, Mr. Bakken’s recollection of the events on May 15 is much more in keeping with the “preponderance of the probabilities” than is Mr. Forrest’s.
105 Mr. Forrest first testified that he never spoke to Mr. Bakken on May 15, and then later he agreed that he might have, but said it was not for the purposes of discussing the terms for ending his employment.
106 I accept Mr. Bakken’s evidence that during their discussion on May 15, the conversation concerned Mr. Forrest’s query as to why Mr. Bakken had brought on another site foreman. Mr. Bakken advised Mr. Forrest that he needed a foreman in Mr. Forrest’s absence, and that in any event, he did not want Mr. Forrest to continue on as site foreman when he returned. Mr. Bakken offered him the alternate position of working as a finishing carpenter ‘on tools’, but Mr. Forrest declined, not wanting to work under the new foreman.
107 After Mr. Forrest declined the offer, he and Mr. Bakken had a discussion about Bakken Construction paying him severance. Mr. Bakken offered two week’s severance, Mr. Forrest countered at three, and Mr. Bakken agreed. I find that the employment relationship came to an end as a result of that negotiation. Mr. Bakken did not fire Mr. Forrest. Rather, there was a mutual decision to end the employment, which included the payment of severance.
- Did Mr. Forrest Know He Had Received a Severance Payment From Bakken Construction?
108 Much time was spent at the hearing on the issue of the payments Mr. Forrest received from Bakken Construction in mid-May. I found Mr. Forrest’s evidence particularly confused on this point. At the hearing, he first maintained that he never received two cheques mid-month, but eventually agreed that he had.
109 Mr. Forrest argued in his submission that it was reasonable for him to assume the mid-May payment he received for $3,291.66 was pay for wages for work to that date, plus his banked over-time, and not a severance payment. This assertion must be considered in light of the fact that he also received a direct deposit payment on May 18, on the normal payroll cycle that he would have been familiar with, for five days of work in the week of April 30 and a partial day of work on May 7, as well as his banked overtime.
110 Contrary to his submissions, I do not find the fact that the cheque to Mr. Forrest did not specifically state it was a severance payment established that he had good reason to be confused as to why Bakken Construction made the payment.
111 In my view, it would have been clear to Mr. Forrest on May 16, when he obtained the cheque for $3,291.66, that it was an extra-ordinary payment. It would be approximately 50% more than the bi-weekly pay he normally received, being the equivalent of three weeks work rather than two. It was also a ‘paper’ cheque rather than a direct deposit payment, as was his regular pay.
112 If Mr. Forrest’s view of the situation were accepted, the question would be why Bakken Construction made the severance payment at all? In my view, the most logical explanation is that the payment was agreed to during their May 15 discussion, pursuant to the agreement to end the employment relationship, and was not an ex gratia payment by Bakken Construction to Mr. Forrest.
113 I find that Ms. Rich issued a cheque for the severance amount of $3,291.66 (again, $5,187 minus statutory deductions) on May 16. Mr. Bakken cashed the cheque on May 17. I conclude that while the process and agreement was informal, it was none-the-less a pivotal step in Mr. Bakken’s and Mr. Forrest’s mutual agreement to end the employment relationship.
- When Did Mr. Forrest Inform the Respondents He Had Hepatitis C?
114 Mr. Forrest maintained that he told Ms. Rich and Mr. Bakken that he had hepatitis C on May 15. The respondents say he did not tell them until much later. When Mr. Forrest gave the respondents this information is a critical factual issue.
115 According to the medical documentation submitted at the hearing, the blood test confirming the condition was not performed until May 18, and the results were not reported until May 24, a week after Mr. Forrest cashed the May 16 severance cheque. No other medical evidence submitted by Mr. Forrest contradicts this.
116 After reviewing all the evidence on this point, I do not accept Mr. Forrest’s evidence that he told Mr. Bakken or Ms. Rich about his having hepatitis C before he had the blood test on May 18, nor do I accept his evidence that this blood test was done only to confirm what his doctor had already told him. In addition to the problem with the date of the diagnosis, no plausible explanation has been put forward as to why Ms. Rich would note in her office log book for May 15 that Mr. Forrest had kidney stones, but not note that he had hepatitis C, a more serious condition. In this regard, it must be kept in mind that she made these notes before the discussion between Mr. Forrest and Mr. Bakken that led to the break in the employment relationship. There was nothing to be gained by omitting the information from the log, had Mr. Forrest provided it.
117 It follows from this that I cannot agree with Mr. Forrest’s submission that it is reasonable for me to infer that his diagnosis of hepatitis C, and the resultant requirement that he would be away from work longer than for just kidney stones, was a component of a decision by the respondents to terminate his employment.
- Did Mr. Forrest and Mr. Bakken Have a Discussion on June 25?
118 In my view, the preponderance of the credible evidence suggests that Mr. Bakken and Mr. Forrest did not have a conversation on June 25 during which Mr. Bakken fired Mr. Forrest. The discussion that led to the termination of the employment relationship occurred on May 15, some six weeks earlier. The only discussion that took place near that date was between Mr. Forrest and Ms. Rich. It appears that, for whatever reason, Mr. Forrest has conflated the May 15 and June 24 conversations he had with Ms. Rich and Mr. Bakken.
- Why Did Bakken Construction Issue an ROE Stating Mr. Forrest Had Been Fired on June 25?
119 Mr. Forrest argues that his call on June 25 was to let Bakken Construction know he was ready to return to work, but to his surprise, Mr. Bakken told him he was fired. However, there are problems with this portion of his evidence. For example, Mr. Forrest was at the same time taking the position, at least with EI, that he was unable to work in June due to illness.
120 The question then becomes what took place on June 24 and 25. I can only conclude that Mr. Forrest had convinced himself that he was still employed by Bakken Construction, despite the finality of the May 15 conversation. I accept that from the respondents’ point of view, he was no longer an employee.
121 Mr. Forrest again contacted Ms. Rich on August 21, demanding a replacement ROE that stated he had been terminated. On Mr. Bakken’s instructions, she complied with Mr. Forrest’s request. Mr. Bakken told her to contact the EI help line before she filled out the form, but did not tell her how to complete it himself.
122 Mr. Forrest testified that he wanted the second ROE for his own records, and that he would get no benefit from it (which I presume to mean EI benefits) because the ROE indicated he had been fired. Yet it is apparent from documents filed at the hearing that he forwarded the “Employee’s Copy” of the August 23 ROE to Service Canada. This begs the question of why he did so.
- EI Sickness Benefits and CPP Pension
123 Having reviewed the forms Mr. Forrest was required to complete to receive EI sickness benefits after May 15, it appears from the face of the reporting document that he was under an obligation to inform EI of his condition for each day he claimed a benefit. If he could work on a particular day, he was required to inform EI. It is not at all clear that he would have been entitled to receive EI sickness benefits for that day, regardless of whether he did or did not work.
124 The same issue arises in regard to the CPP application. Mr. Forrest alleges that he could work for more or less 60% of the time, until his treatment started, while at the same time saying that he suffered from a severe physical condition that qualified him for receiving CPP disability benefits.
125 I find Mr. Forrest’s evidence on the extent to which he was able to work after May 15 inconsistent, contradictory, and not credible. However, as I find that the employment relationship was severed on May 15, this conclusion only has significance in regard to Mr. Forrest’s overall credibility.
- Analysis
126 I have incorporated portions of Mr. Forrest’s submissions in my analysis.
127 This complaint is brought pursuant to s. 13 of the Code It states, in part:
(1) A person must not
(a) refuse to employ or refuse to continue to employ a person, or
(b) discriminate against a person regarding employment or any term or condition of employment because of … physical … disability …
. . .
(4) Subsections (1) and (2) do not apply with respect to a refusal, limitation, specification or preference based on a bona fide occupational requirement.
128 As in all human rights complaints, the legal burden is on Mr. Forrest to establish, on a balance of probabilities, a prima facie case that the respondents discriminated against him.
129 A prima facie case is “one which covers the allegations made and which, if they are believed, is complete and sufficient to justify a verdict in the complainant’s favour in the absence of an answer from the respondent employer”: O’Malley v. Simpsons-Sears Ltd., [1985] 2 S.C.R. 536 (S.C.C.), para. 28.
130 In order to establish a prima facie case of discrimination, in the circumstances of this case, Mr. Forrest must establish that:
- a) he was disabled;
- b) he suffered adverse treatment in his employment; and
- c) it is reasonable to infer from the evidence that his disability was a factor in that adverse treatment.
131 It is not necessary that disability be the sole, or even the primary factor, in the adverse treatment.
132 Mr. Forrest necessarily begins his submissions by stating that he has made out a prima facie case of discrimination. I disagree.
133 As noted above, I have concluded that the respondents knew that Mr. Forrest had kidney stones when his employment ended. For the purposes of this decision, I am prepared to characterize suffering from kidney stones as a physical disability, as treatment for the painful condition can be debilitating and involve a period of recovery. In Mr. Forrest’s case, the treatment necessitated him taking time off from work for some weeks.
134 Hepatitis C certainly constitutes a physical disability. However, the evidence does not establish that the respondents knew that Mr. Forrest had this condition on May 15, when his employment ended. As a result, the first step in the test is made out, but only in so far as kidney stones are concerned.
135 I also find that Mr. Forrest suffered adverse treatment in his employment, in that the respondents had decided to change the terms and conditions of his employment. He was to return to work, once he recovered from his kidney stones, ‘on tools’ rather than as site foreman. While it is not clear that he would have been paid less, he was to be demoted, at least in relation to his supervisory authority.
136 That being said, I do not find it reasonable to infer from the evidence that Mr. Forrest’s disability was a factor in the respondents’ decision. After a review of all the credible evidence, I find that the respondents did not decide to alter the terms and conditions of his employment, in whole or in part, because he was going to be off work for a time due to kidney stones. In my view, the terms and conditions of his employment were changed, rightly or wrongly, due to performance issues as perceived by Mr. Bakken. His employment subsequently came to an end only because Mr. Forrest decided to end it, and negotiated a severance package with Mr. Bakken. It is not reasonable to infer that it came to an end, in whole or in part, because of a disability.
137 Having reached this conclusion, it is therefore unnecessary for me to go on to consider the parties’ submission on the respondents’ burden of proof, had I found that Mr. Forrest had made out a prima facie complaint.
- Decision
138 Based on the foregoing, I find that the complaint is not justified, and pursuant to s. 37(1) of the Code, I dismiss it.
- Costs
139 The respondents indicated in their submissions that once a final determination of the complaint was made, they intended to apply for an order for costs against Mr. Forrest. I will remain seized of the matter in regard to costs, should the respondents determine that it is in their interest to pursue the matter. Any application for costs must be filed within 35 days of this decision.