Date Issued: July 14, 2017
		File: 14394
Indexed as: Sullings v. Laughlin & Company Law Corporation, 2017 BCHRT 144   IN THE MATTER OF THE HUMAN RIGHTS CODE, R.S.B.C. 1996, c. 210 (as amended)   AND IN THE MATTER of a complaint before the British Columbia Human Rights Tribunal
BETWEEN:
	Vicki Sullings
COMPLAINANT
AND:
	Laughlin & Company Law Corporation
RESPONDENTS
REASONS FOR DECISION
Tribunal Member:		V. A. Pylypchuk
Counsel for the Complainant:		Ib S. Petersen
Counsel for the Respondents:		Glenn A. Laughlin
Dates of Hearing:       Location of Hearing:		January 17, 18, 19, 20, February 10, 14, 15, 21, March 29, 30, 2017   Vancouver

I         INTRODUCTION

[1]               On October 7, 2015, Vicki Sullings [Complainant or Ms. Sullings], filed a complaint under s. 13 of the British Columbia Human Rights Code[Code] alleging that she was discriminated against by the Respondent, Laughlin & Company Law Corporation [Laughlin or the firm], in the area of employment on the grounds of physical disability and age. Ms. Sullings alleged that on June 22, 2015, her employment as a receptionist was terminated for discriminatory reasons. She says a much younger person, whom she trained, was given her job [Complaint]. The material time of concern for Ms. Sullings which underpins her complaint is from December 2014 until her dismissal in June 2015.

[2]               On March 1, 2016, Laughlin filed a response denying discrimination. Laughlin asserted that Ms. Sullings’ employment was terminated for cause [Response].

[3]               A hearing into this matter was held commencing January 17, 2017.

II      PRELIMINARY MATTER

1. a) The objection

[4]               Prior to commencing the evidence, Ms. Sullings objected to paragraphs 20 to 23 of the Response. Ms. Sullings said that the letter of June 22, 2015 terminating her employment set out the reasons for her dismissal. She said that the matters in paragraphs 20 to 23 of the Response constitute after-acquired cause and were not in Laughlin’s mind at the time that she was dismissed. Ms. Sullings argued that information acquired after her dismissal is not relevant to whether disability or age was a factor in the decision to terminate her employment on June 22, 2015. Ms. Sullings relied on Bains v. Metro College Inc., 2003 BCHRT 66 (CanLII) [Bains] at para. 70 where the Tribunal stated “… after-acquired cause was irrelevant to the question of whether Metro terminated Ms. Bain’s employment for discriminatory reasons.”

[5]               In response, Mr. Laughlin expressed surprise that the objection was raised at such a late stage. He argued that paragraphs 20 to 23 of the Response did not raise new issues, but were relied on at the time of Ms. Sullings’ dismissal. He said that the matters outlined in paragraphs 20 to 23 fell within the reasons for her dismissal. Mr. Laughlin also distinguished Bains.

[6]               Ms. Sullings reiterated that Bains stands for the principal that after-acquired cause cannot be relied upon to justify dismissal in a human rights complaint.

[7]               After hearing the parties, I gave Mr. Laughlin an opportunity to make further submissions after he had an opportunity to review the law. Ms. Sullings would also have an opportunity to reply. I would make a ruling at that time.

[8]               The next morning, Mr. Laughlin made the following submissions relying in part on a BC Court of Appeal case, British Columbia (Public Service Agency v. British Columbia Government and Service Employees Union, 2008 BCCA 357 (CanLII) [Gooding]. The facts are that Mr. Gooding was an employee of the Liquor Distribution Branch and he was an alcoholic. He began to steal alcohol from the store; sometimes he would later pay for it and sometimes he would not (para. 22). Ultimately, he was dismissed and he claimed he was discriminated against on the basis of medical condition because the theft was a result of alcoholism and alcoholism was a medical condition and a disability.

[9]               In his submissions, Mr. Laughlin relied in large measure on the analysis found at paras. 51 to 66 of the dissent in the Court of Appeal judgment. However, he relied on the ultimate finding that anybody stealing from the employer would have been terminated and therefore disability was not a factor in the termination of employment (found at paras. 11 to 17, the majority judgment). Mr. Laughlin submitted that whether alcoholism was a factor in the termination or whether there is an explanation completely unrelated to his alcoholism was the issue and therefore, any evidence pertaining to the issue of theft from the employer was admissible. An employer must be permitted to discuss the level of non-performance that it says would be unacceptable for anyone.

[10]           While the case is not directly on point, Mr. Laughlin submitted that Gooding stands for the proposition that having established a prima facie case the onus shifts to an employer to show a bona fide occupational requirement [BFOR] and the employer must be allowed to adduce whatever evidence addresses the reasons for dismissal. Consequently, it is open to the Tribunal to put whatever weight it chooses on the evidence of misconduct, but it is not open to the Tribunal to exclude such evidence because that would prevent an employer from raising a BFOR defence.

[11]           Mr. Laughlin distinguished the situation where a new allegation for cause is raised. He said the Tribunal must determine what was in the employer’s mind at the time the employee was dismissed. In Bains, the employer was precluded from tendering evidence of dishonesty because dishonesty was not in the employer’s mind at the time of dismissal. However, he said, where the misconduct is known to the employer and is the stated reason for the employee’s dismissal, the employer is entitled to provide further evidence to confirm what the employer knew all along and was central to the employer’s decision at the time when the alleged contravention of the Code occurred.

[12]           Mr. Laughlin also relied on Rezaei v. University of Northern British Columbia and another (No. 2), 2011 BCHRT 118 (CanLII) [Rezaei], which he conceded was also not directly on point, but seemed to say at para. 52 that an employer is entitled to rely on the most recent information available to it. On the basis of those cases, Mr. Laughlin submitted that there is a distinction between after-acquired cause, which is not what he seeks to introduce, and further evidence of pre-existing cause.

[13]           Mr. Laughlin said that in this case, the misconduct identified in the dismissal letter is lack of attention to details and carelessness. He said that paragraphs 20 to 23 of the Response are just further examples of the cause already identified. Paragraph 24 recites that Ms. Sullings had been previously warned about the quality of her work. Mr. Laughlin said substandard work performance is referred to in the termination letter and is not a new cause alleged by Laughlin.

[14]           Ms. Sullings did not disagree with Mr. Laughlin’s central proposition that the employer is entitled to rely on additional evidence that is found in relation to the grounds that were set out in the dismissal letter. However, she argued that in this case there is simply a denial of discrimination and the employer has not raised a BFOR defence. The items listed in paragraphs 20 to 23 could not have been in the employer’s mind on the date of termination as they were unknown.

[15]           Mr. Laughlin agreed with Ms. Sullings that if information of which the employer was unaware goes to new grounds, then it cannot be relied upon. However, if it is simply information related to grounds already alleged, then he should be able to rely on it. Mr. Laughlin said that paragraphs 20 to 23 of the Response are simply examples of matters of which Laughlin was already aware and had already relied upon.

1. b) My ruling

[16]           Following these submissions I ruled on Ms. Sullings’ objection which I now set out. I reserved the right to insert authorities and citations. However, the substance of my ruling remains unaltered.

[17]           From what I heard, the parties were not apart on the statement of the law. There is a difference between after-acquired cause and after-acquired evidence of cause already alleged. In Bains, the Tribunal ruled that after-acquired cause is irrelevant in a human rights case. That proposition was affirmed by the Tribunal in Jacobs v. Dynamic, 2005 BCHRT 353 (CanLII). I agreed with that proposition and adopted it here as well.

[18]           In Bains, the Tribunal initially ruled that documents disclosing evidence of dishonesty which the respondent wanted produced would amount to after-acquired cause because the respondent had not relied upon Ms. Bains’ dishonesty in deciding to terminate her employment (para. 70). However, as explained in Bains, the respondent subsequently realized that it had relied on Ms. Bains’ dishonesty in the termination letter so that the objectionable evidence no longer constituted after-acquired cause and was not strictly collateral evidence of credibility (para. 71). It follows that the documents were actually after-acquired evidence of cause already alleged and thus would be admissible. In the end, neither party was able to produce the documents.

[19]           Because after-acquired evidence which supports cause already alleged is material and can be tendered in the hearing, the outcome of this preliminary matter is largely driven by how one characterized the cause alleged, and paragraphs 20 to 23 of the Response.

[20]           I found that the dismissal letter and the paragraphs to which Ms. Sullings objected are fairly characterized as follows. The dismissal letter was framed in terms of complaints about performance of specific duties. There are a number listed in the dismissal letter – the file closing process, a situation with a particular family law client, a coffee stain on the carpeting, and issues or tasks assigned that were not being done, but none relate to the matters identified in paragraphs 21, 22 and 23 of the Response. The items described in paragraphs 21, 22 and 23 are essentially allegations of theft from the employer (time and resources) and none of that is contained in the June 22, 2015 dismissal letter.

[21]           I accepted Ms. Sullings’ objection to paragraphs 21, 22 and 23. Paragraph 20 however, is different. In my view, paragraph 20 falls into after-acquired evidence as opposed to after-acquired cause because paragraph 20 speaks to a list related to file closing and closed file boxes which is at the heart of the conduct raised against Ms. Sullings in the June 22, 2015 letter. I did not accept Ms. Sullings’ submission that paragraph 20 should be struck from the Response.

[22]           In summary, paragraphs 21, 22 and 23 in the Response were struck; paragraph 20 remained. We proceeded on that basis.

[23]           I noted also that after-acquired cause may play a different role in wrongful dismissal cases. Also, in labour arbitration in the union environment under the William Scott[1] factors, after-acquired cause may go to remedy in so far as the question of whether the employment relationship can be re-established following a termination or whether it is so damaged it is not possible to restore. However, that is an environment different from the one in which we are operating under the Code. In making my ruling I did not consider whether after-acquired cause has any bearing on damages under human rights law. If there is an issue with respect to that aspect of the hearing, I advised the parties that they could revisit the matter at the relevant time.

1. c)   Summary

[24]           In summary, the following items of cause have been alleged by Laughlin in its letter of June 22, 2015:

•       Serious breaches respecting data preservation, specifically related to the digitization of client files
•       Ongoing problems with lack of attention to detail, specifically, the R. family law file
•       The large carpet stain at the entrance to the office
•       Issues left to be addressed or tasks to be completed were not being done

[25]           I found that evidence relevant to these issues, whether in possession at the time of dismissal or discovered afterwards, is admissible. In addition, the letter noted that Ms. Sullings had been warned that her performance was not satisfactory. Consequently, I also found that evidence about circumstances surrounding the warnings and Ms. Sullings’ knowledge that her employment was in jeopardy is also admissible.

III     THE SECOND RULING

[26]           At the hearing, a memo dated June 25, 2015 was submitted into evidence. The memo consisted of ten paragraphs addressing various items of alleged performance issues of Ms. Sullings. The memo was prepared by Ms. Turpin after Ms. Sullings and been dismissed. Ms. Turpin started the memo on June 25, 2015 and added to it over time.

[27]           The last three paragraphs of Ms. Turpin’s memo related to the items which I ruled inadmissible in the ruling recorded above. Consequently, I ruled that those three paragraphs were not to be referred to during the course of the hearing.

[28]           The three paragraphs immediately preceding those that I ruled inadmissible addressed the issue of closed files identified in the dismissal letter. I ruled that witnesses could refer to those three paragraphs in the course of the hearing.

[29]           Finally, the first four paragraphs of this memo addressed other issues. I noted that the dismissal letter had made reference to an allegation that Ms. Sullings had been warned that she was not paying sufficient attention to detail. Conceivably, those paragraphs could come within the scope of that aspect of the dismissal letter. However, I determined that I needed to hear more evidence before I could decide whether they should form part of the factual matrix of this particular case. I therefore reserved ruling on whether I would consider those items in the course of this case.

[30]           The dismissal letter referenced lack of attention to details specifically in regards to file closing and digital preservation of closed files, and the R. Family Law matter. During testimony Mr. Laughlin testified that Ms. Sullings was also told verbally that she was not paying sufficient attention to detail. I am satisfied that such a warning came within the context of the R. Family Law matter. Ms. Sullings did not dispute receiving that warning.

[31]           Ms. Sullings testified that in March of 2015 Mr. Laughlin called her into his office and warned that she was not paying adequate attention to details. She thought that was unfair as she was doing her best and therefore felt no need to make any changes. No details of the subject matter of that discussion beyond the general assertion of not paying attention to details was provided.

[32]           As a result, while I heard evidence about the items listed in the first four paragraphs of the June 25, 2015 memo, I have decided not to consider them. I find they are unhelpful in determining whether age and/or disability were factors in Ms. Sullings’ dismissal because I find I have no context by which to determine whether the matters in the first four paragraphs of the June 25, 2015 memo come within the scope of the general warning issued to Ms. Sullings in March of 2015. In the circumstances, I find these items fall into the after-acquired cause category rather than after-acquired evidence of cause already alleged.

[33]           I also heard evidence concerning letterhead. That evidence was available and known before Ms. Sullings’ dismissal. It could have been alleged in the dismissal letter, but was not. Therefore, I have not considered it as well. Even had I considered it, I would have had some reservations. While Mr. Laughlin testified that the letterhead had been erroneously produced on Ms. Sullings’ instructions with the logo offset towards the centre of the page as on the copy of Ms. Sullings dismissal letter entered as an exhibit by Mr. Laughlin, the original provided by Ms. Sullings shows the logo in the correct position.

IV   THE ISSUE

[34]           To succeed at this hearing, Ms. Sullings must prove that: (1) she had the protected characteristics of physical disability and age; (2) Laughlin’s conduct caused an adverse impact with respect to her employment; and (3) Ms. Sullings’ physical disability and/or age were a factor in the adverse impact: Moore v. British Columbia (Education), 2012 SCC 61 (CanLII), at para. 33.

[35]           There is no dispute between the parties that the termination of Ms. Sullings’ employment by Laughlin is an adverse impact within the meaning of the Code. While Mr. Laughlin’s initial view at the hearing was not entirely unequivocal as to whether Ms. Sullings exhibits protected characteristics within the meaning of the Code, he did not challenge her evidence concerning her medical issues and resulting physical disability nor did he direct any argument suggesting that she did not have a physical disability. Further, while Mr. Laughlin did direct argument as to the strength of any presumption that may arise by virtue of Ms. Sullings’ age, he did not challenge that her age was a protected characteristic. I find, based on how the case unfolded, that there is no material dispute that Ms. Sullings exhibits both characteristics protected by the Code.

[36]           When I put to the parties at the outset of the hearing that, based on my reading of the Complaint and Response, the central issue in dispute is whether age and disability were factors in the termination of Ms. Sullings’ employment on June 22, 2015, the parties agreed. As a result, I find this case turns on the nexus factor. The issue I must decide is was age and/or physical disability a factor in the termination of Ms. Sullings’ employment on June 22, 2015.

V      FACTS

[37]           I heard testimony from Vicki Sullings. Ms. Sullings was the only witness in her case. She called no rebuttal evidence.

[38]           In behalf of the Respondents, I heard testimony from Glenn Laughlin, Kelora Howell, Norman Einarsson, Melanie Gushue, Janice Wallman, and Jennifer Turpin.

[39]           Ms. Sullings was the firm’s receptionist until her dismissal.

[40]           Mr. Laughlin and Mr. Einarsson are lawyers.

[41]           Ms. Wallman is a legal assistant with experience in family law. Ms. Wallman was Mr. Laughlin’s legal assistant and her area of expertise was family law related matters. She is now retired, but occasionally helps out at the firm.

[42]           Ms. Gushue is also a legal assistant. Ms. Gushue works in real estate and is the firm’s senior conveyance. Ms. Gushue also assists family law lawyers with property issues and helps out with some corporate law matters. Prior to joining the firm, Ms. Gushue worked for the Law Society of BC. She started in PLTC, then worked in credentials, and then for the Executive Director of the Discipline Department.

[43]           Ms. Howell worked as a legal assistant, paralegal, and at the time of hearing was articled to the firm. She has a law degree from an American law school.

[44]           Ms. Turpin was Ms. Sullings’ temporary replacement when Ms. Sullings was away in 2014 for her hip surgeries. Ms. Turpin became Ms. Gushue’s assistant in the position of junior conveyancer, but ultimately replaced Ms. Sullings when Ms. Sullings was dismissed.

[45]           In assessing the credibility, including reliability, of the testimony which I heard, I applied the test from Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354:

The credibility of interested witnesses, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether the personal demeanour of the particular witness carries conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of a witness in such a case must be its 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. (p. 357)

[46]           The test requires a finder of fact to determine the probabilities that surround the current existing conditions or the probabilities that are reasonable in that place and in those conditions. I find that identifying those facts that are not in dispute is particularly helpful in setting the framework of what could be considered reasonable in that place and in those conditions. Evidence in dispute that is more consistent with the facts that are not in dispute, is evidence which is more likely than not to be in harmony with the probabilities that surround the currently existing conditions. Understanding the history, background and context is also helpful and contributes to building a framework on which disputed evidence may be resolved.

[47]           Of course other aspects of assessing evidence come into play including, but not limited to, internal and external consistency of the evidence, the requisite detail provided by the witness, powers of observation of the witness, powers of recollection of the witness, spontaneity, motive or bias of the witness, and, to a limited extent, demeanour.

[48]           This is the approach which I applied in this case.

1. a) Background

[49]           Mr. Laughlin was called to the bar of Saskatchewan in 1995. Later in 1995, he returned to the Lower Mainland and was employed as an associate for several years. At some point he became in-house counsel for an auto parts distributor and remained in that position until 2003.

[50]           In 2003, Mr. Laughlin established his own law firm. At that time, the utility room in the apartment he was renting was his office. As the practice grew, he moved to what he called a “packaged office” in Port Coquitlam. The packaged office provided reception services, board room facilities, photocopiers and office space for his personal use.

[51]           In building his practice, Mr. Laughlin determined that the Tri-City area was under-serviced. In his view, the areas that were sufficiently serviced were downtown Vancouver, Richmond No. 3 Road, Metrotown and Guilford. He intended to grow a practice that offered a full complement of services to clients in the Tri-City area so they would not have to go to the other locations or to other law firms. His firm has grown to include several lawyers, an articled student, a full complement of assistants, and a receptionist. The firm provides services in family, personal injury, corporate commercial, wills and estates, and real estate law.

[52]           Mr. Laughlin testified that practising law is not solely a money-making business, but rather that it is an avocation designed to provide a service to clients. His practice was relationship-based with a view to taking care of his clients’ full range of legal needs. He said his approach to employment is to maximize people’s potential. He testified that it is difficult to get fired from Laughlin. An employee has to really work at it.

[53]           Over time, the practice outgrew the packaged office which could no longer accommodate its needs. The firm had expanded to eight individual offices and was running out of filing space. Mr. Laughlin felt that the congestion was not consistent with the image he sought to project to clients. As a result, in 2009, he decided to move to a suite of offices which contained a reception area, offices around the periphery, a lunch room, a computer room, a storage room, a board room and space for assistants. As a result of the move, Mr. Laughlin determined that the firm required a receptionist.

[54]           Ms. Sullings was born in 1948. She completed her grade 12 and enrolled in a nursing course which she did not complete. She took several secretarial and food industry courses. The last course that she has taken is a legal assistant course by correspondence while employed at Laughlin.

[55]           In 2009, Ms. Sullings was looking for work and she applied for the receptionist position at Laughlin. Ms. Sullings was eligible for a wage subsidy through Sante Wage Subsidy Services [Sante].

[56]           Ms. Sullings was hired. She was 61 at the time. Laughlin entered into a contract with Sante which subsidized Ms. Sullings’ wages. Ms. Sullings testified that there was no written employment agreement and no agreement regarding termination of employment. Her initial wage was $15 per hour and she received one increase to $17 per hour a couple of years after her start. Initially, Laughlin provided no benefits, but as of about two years before her dismissal, medical, dental, prescription and vision benefits were provided. Ms. Sullings worked Monday to Friday from 9 a.m. until 5 p.m., 37½ hours per week. She was paid for lunch, but not for coffee breaks.

[57]           Mr. Laughlin testified that the office did not provide formal training to Ms. Sullings. Rather, she learned on the job from him and from other people in the office. Additional resources were provided as the need arose.

[58]           Ms. Howell testified that she has been working at Laughlin since 2008 as a legal assistant in civil litigation and as a paralegal. She started articles with Laughlin in June 2016. In 2009 she was temporarily covering reception when Ms. Sullings was hired. Ms. Howell said she trained Ms. Sullings in some of the receptionist’s duties. Ms. Howell understood the receptionist duties to include answering telephones, greeting clients, opening files, closing files, bank runs, faxing, and receiving and distributing mail.

[59]           Ms. Sullings testified that she was physically located at the switchboard all day. Some days were busier than others. Ms. Sullings described her job duties as primarily that of a receptionist. She booked appointments, answered the telephone, delivered faxes, distributed the mail and ordered supplies. She said that when a client called, she asked what type of law the client required and then made an appointment with the lawyer who practised that type of law. However, she agreed in cross-examination that there were a number of clerical functions assigned to her as well. Among them was the file closing function. At some point she became responsible for the bring-forward systems and for file closing.

[60]           Ms. Wallman testified that on occasion she gave Ms. Sullings family arbitration agreements to type up. She said she told Ms. Sullings there was no rush and Ms. Sullings took several months to complete the work. Ms. Wallman said she then had to reformat the document as it appeared to her that Ms. Sullings did not know how – she appeared to use her computer as a type-writer inappropriately inserting hard returns.

[61]           Ms. Sullings took issue with any complaint respecting the time it took her to complete the task because of the imprecise deadline, but she did not deny or address that the product had to be reformatted by Ms. Wallman.

[62]           While Ms. Sullings testified that she never received a written job description, a list of her job duties was contained in the reporting forms that Laughlin was required to file with Sante and which Ms. Sullings signed. In cross-examination, Ms. Sullings said she had forgotten about those forms. She did agree that she was told orally what her job duties were. In cross-examination, Mr. Laughlin agreed that the only written job descriptions were the ones attached to the Sante reports in 2009 and the job description that was crafted in November 2014 for Ms. Sullings’ physician to review. He said there were no other job descriptions between those dates.

[63]           Ms. Turpin testified that there was a binder at reception that outlined basic reception duties. The binder included an instruction sheet about scanning (digital preservation of closed files), which will be addressed later in this decision.

[64]           I also note that a screenshot of Ms. Sullings’ directory on the Z drive of the firm’s computer server contained, among other things, a document entitled “Receptionist Job Descriptio1” (sic) last modified on November 18, 2010 at 1:02, consisting of 29 KB (Kilobytes). However, that document was not introduced into evidence.

[65]           While Ms. Sullings seemed to suggest that the scope of her responsibilities was not entirely clear, particularly when it came to the scope of the file closing function after digital preservation was introduced at Laughlin, I am satisfied that Ms. Sullings did understand the scope of her job duties including her responsibilities when it came to file closing and digital preservation. Ms. Sullings was trained to some extent by Ms. Howell; she also learned on the job; it is undisputed that her duties were explained to her orally; it is undisputed that she saw the written job description in the Sante reports in 2009 which she signed; it is undisputed that she saw the detailed job description provided to her physician in November 2014 which enabled the physician to identify the restrictions and limitations arising from her physical condition; and, as noted, there was a binder located at reception containing an outline of reception duties including the scanning function. Additionally, Ms. Sullings conceded that she trained her temporary replacements in receptionist duties. Ms. Turpin testified that she too was trained by Ms. Sullings.

[66]           Ms. Sullings testified that from 2009 until March 2014, she was given no warnings or told of any concerns about her work performance. She also said that from May 2014 until she was dismissed she was not told of any concerns about work performance. She agreed that she made mistakes from time to time.

[67]           In 2011, Ms. Sullings took a distance learning course offered by a school in Ontario in order to become a legal assistant. When she approached Mr. Laughlin about taking the course, he encouraged her to take a computer skills upgrading course instead. She chose not to follow his advice. She completed the legal assistant’s course in 2013. In cross-examination Ms. Sullings conceded that she was never hired to work as a legal assistant and never did work as a legal assistant for the firm. She also said that she did not like the conveyancing work and would not want to be Ms. Gushue’s assistant.

1. b) The Complainant’s medical leaves

[68]           Ms. Sullings had hip replacement surgery in July 2011. She was in hospital for a month. While the surgery was initially thought to have gone well, there were complications. She was sent home for two weeks and then readmitted to the hospital in August 2011 to have the first prosthesis replaced. She was again in hospital two to three weeks and then sent home. She returned to work subsequently. She said she was in pain and that everybody could tell she was having pain as she could hardly walk. Initially, she was on crutches; she eventually used a single crutch and then a cane.

[69]           When Ms. Sullings took leave in July 2011 for her first hip replacement, Jackie, a friend of Shondrea Aasman, an office legal assistant, was hired to replace her. Ms. Sullings trained Jackie in receptionist duties before her departure. She also conceded that she trained Jackie in the file closing procedure. However, when she was off for the second hip replacement in August 2011, a temp was hired. She did not recall training the temp in receptionist duties.

[70]           Ms. Sullings was cleared by her physician to return to work beginning September 19, 2011. Her physician recommended this should be on a trial, part-time basis. However, Ms. Sullings said she came back full-time and no part-time work was offered.

[71]           Between her return in September of 2011 and going off in February 2014, Ms. Sullings had a fall in the office due to her disability. She could not pinpoint a date. Apparently, on falling, she cracked a flowerpot. However, she said Mr. Einarsson, his assistant and a client who were meeting in the boardroom, rushed out to help her. Mr. Laughlin found out that Ms. Sullings had fallen in the office when he asked her what happened to the flowerpot. He did not see her fall.

[72]           Ms. Sullings was readmitted to hospital in February 2014 to have the second prosthesis removed and the third one implanted. It was discovered that metal prostheses were incompatible with Ms. Sullings and, as a consequence, the third one was ceramic. She was off work for a period of time beginning in February 2014.

[73]           When Ms. Sullings returned to work following her surgery, she experienced certain physical limitations. She could not lift the boxes. She could not serve coffee, tea or water to clients due to having to use a walking aid. When she required a box for file closing, another staff member would bring it to her. Others took turns serving refreshments to clients.

[74]           Ms. Sullings testified that no other measures to accommodate her were taken. She further said that, contrary to what was stated in the Response, she was never offered part-time work. In cross-examination, Ms. Sullings said she had no complaints regarding the treatment she received on her return to work following the surgeries in 2011 and the surgery in February of 2014. She agreed the accommodation provided through others helping was sufficient to address her needs.

[75]           In January 2014, the firm was looking to fill the receptionist position on a temporary basis as it knew that Ms. Sullings would be going off in February for hip replacement surgery. Initially, a replacement named Angela (last name not provided) was hired. Ms. Sullings said she trained her in the receptionist’s duties, including the file closing process. However, Angela could not do the work full-time because she had her own business and, as a consequence, the firm had to look for another replacement.

[76]           The task was given to Ms. Gushue, the firm’s conveyancer, and Ms. Aasman. Ms. Gushue testified that a former colleague mentioned that Ms. Turpin was looking for short-term employment. Ms. Gushue asked her former colleague to email Ms. Turpin’s résumé. Ms. Aasman and Ms. Gushue reviewed Ms. Turpin’s résumé and interviewed Ms. Turpin. They concluded that Ms. Turpin would be a good fit for the short-term as she was eager to learn. Accordingly, they recommended to Mr. Laughlin that the firm hire Ms. Turpin. He agreed.

[77]           Ms. Turpin is 29. She was 26 when hired. Her qualifications included experience in data entry, filing, and using Excel and Word Programs. Ms. Turpin came to work two weeks before Ms. Sullings left on her medical leave.

[78]           Ms. Turpin said that during those two weeks, Ms. Sullings trained her in receptionist duties including answering the telephone, the switchboard, distributing incoming faxes, distributing mail, learning which type of law the various lawyers did, ordering supplies, knowing where the supplies were kept, and closing and scanning files. Mr. Turpin testified that Ms. Sullings showed her the step-by-step process of closing a file, entering the closed file on the closed file list, scanning on the photocopier and ultimately shredding. Ms. Turpin testified that no one else in the office trained her although everyone in the office was helpful.

[79]           Ms. Sullings agreed that she trained Ms. Turpin in receptionist duties. She explained how to book appointments, deal with the faxing, distribute the mail and faxes, lunchroom duties and buying supplies. She denied training Ms. Turpin in scanning (the digital preservation of closed files process).

[80]           Once Ms. Sullings took medical leave, Ms. Turpin looked after the front desk on her own answering the telephone, making coffee, relaying calls to different parts of the office, receiving incoming faxes, sending out outgoing faxes, date stamping the mail and delivering it to the appropriate part of the office, closing files and scanning closed files. Documents in evidence showed that Ms. Turpin actively solicited work around the office. In particular, she was eager to assist with file closing as the backlog of files to be scanned and shredded seemed to be the bane of everyone’s existence. As described below, Ms. Turpin remained in the firm’s employ in some capacity for approximately one year and has been a full-time employee since January of 2015.

[81]           While the exact date was not established in the evidence, Ms. Sullings returned to work sometime in late March or early April of 2014 and Ms. Turpin’s engagement as Ms. Sullings’ replacement was ended. Ms. Turpin testified that she obtained part-time employment with a real estate firm, Monday to Friday, from 12 to 4 p.m.

[82]           However, Ms. Turpin was still keen on continuing to work for Laughlin. Ms. Turpin asked whether she could come into the office two or three days per week on a part-time basis to help out with various tasks. As real estate conveyancing was picking up at the firm, and was expected to be busy through the summer, Ms. Gushue suggested that would be a good idea and Mr. Laughlin agreed.

[83]           Again, while an exact date was not established, there is no dispute that after a short interval Ms. Turpin returned to work at Laughlin on a part-time basis. As it turned out, Ms. Turpin only came in one or two days per week, mostly Fridays. When she was in the office, she assisted Ms. Gushue with conveyancing. She also assisted with distributing mail, shredding and helping scan closed files. Generally, she helped wherever she could around the office through the summer to the beginning of September of 2014.

[84]           In September 2014, Ms. Sullings was again admitted to hospital for hip replacement surgery on her other hip. The surgery resulted in complications. She lost feeling from the knee down in that leg. Ms. Sullings said she was upset, she hated the world and her doctor. Once released from hospital, she had to use crutches, then a single crutch, and then a cane. She also wore a brace.

[85]           Because Ms. Turpin had already been the substitute receptionist while Ms. Sullings was away on her previous surgery, Ms. Turpin was asked if she would consider taking the full-time receptionist position beginning in September of 2014 for the duration of Ms. Sullings’ medical leave of absence. Ms. Turpin agreed. She left her position at the real estate firm and in mid-September became the substitute full-time receptionist at Laughlin.

[86]           Ms. Sullings testified that she called the firm at the beginning of November wanting to return to work on November 15, 2014. She said that she was told to stay off until December 1, 2014. According to Ms. Sullings, the reason given was that Ms. Turpin was hired until December 1, 2014.

[87]           Before Ms. Sullings returned to work, Mr. Laughlin provided a three-page job description to Ms. Sullings’ physician. The physician was asked to review the job description and identify any limitations or restrictions applicable to Ms. Sullings. As a result, the physician wrote a letter dated November 26, 2014 in which he set out that Ms. Sullings would be able to do most of the activities described in the job description, but some allowance would need to be made for several items.

[88]           First, she was not permitted to use stepladders as she required a crutch for ambulation and standing balance. This would affect her ability to feed the fish and do some filing, but limited filing within her capability was allowed. Second, distribution of heavy boxes was not feasible, particularly if she needed to do this solo. Third, offering coffee to clients was potentially dangerous due to her needing crutches for the foreseeable future. Fourth, she was not to walk or drive to various bank locations. Finally, prolonged standing activities were discouraged. Ms. Sullings conceded that standing for 5 to 10 minutes she could do. At other points in her cross-examination she said that prolonged standing in her mind was anything exceeding 15 minutes.

[89]           Ms. Sullings testified that when she returned to work on December 1, 2014 she gave her doctor’s letter to Mr. Laughlin. Mr. Laughlin implemented the recommendations and, according to Ms. Sullings, told her that they “would give it a try.” Ms. Sullings testified that her impression on her return was that Mr. Laughlin did not want her back. However, she conceded that he never communicated anything along those lines. She said that Mr. Laughlin did not welcome her back or exchange pleasantries with her as he had done on prior occasions.

[90]           As a result of her medical restrictions, other people in the office assisted Ms. Sullings with tasks she could not perform. Ms. Howell testified that there was no resentment on anyone’s part when it came to helping Ms. Sullings. In cross-examination, Ms. Sullings agreed that her needs as set out by her physician were accommodated. She also agreed that for the balance of her employment with Laughlin, her medical condition remained stable and she did not require any further or other accommodation.

[91]           Ms. Sullings testified that she did experience additional problems with tasks at home. However, she conceded that these were not the kind of tasks that she would have to do at the office. She did say that she was experiencing numbness in her one leg and she never knew when it could give out. As a result, she had fallen at home on several occasions and had broken her toes. She told some of her co-workers about those falls. However, she conceded that she did not raise with Mr. Laughlin any additional concerns flowing from her physical condition apart from those identified by her physician. She also conceded that she was not asked to perform any duties that she could not physically do.

[92]           Ms. Sullings testified that she did not think that her general health had changed over the years as a result of her age. She also agreed that she was not asked to do anything that she was unable to do due to her age. She testified that she felt confident she could perform her job with the allowances that were made. She agreed that the “office” stepped in to help.

[93]           Ms. Sullings agreed that there were other elderly persons working in the office. They were lawyers. One of the lawyers, who had worked for the firm, was confined to a wheelchair and, as a result, was accommodated by being given the largest office even though he was only an associate. The reason for that was he needed the extra room to accommodate his wheelchair. One of the other lawyers who had knee replacement surgery was also accommodated by a reduced work week. Ms. Sullings said she observed no untoward behaviour respecting any of the others regarding disability or their age.

[94]           However, Ms. Sullings testified that she did hear people saying that her condition was not as bad as it appeared and that she was probably faking it. Ms. Sullings identified Ms. Wallman as the person who had made that remark. Ms. Sullings agreed that Ms. Wallman had no formal authority over her.

[95]           Ms. Turpin continued to work after Ms. Sullings’ return. Mr. Laughlin said Ms. Sullings had been initially expected to be away until January 1, 2015. Ms. Turpin had been promised a term contract until that date. Ms. Turpin confirmed that it was her understanding that she had a contract until January 1, 2015. When Ms. Sullings returned early, Ms. Turpin asked if she could finish out her contract by helping out around the office wherever she could. Mr. Laughlin agreed. He said she could stay through December and then they would “take it from there.”

[96]           During December 2014, Ms. Turpin and Ms. Gushue had some discussions about Ms. Turpin possibly becoming Ms. Gushue’s conveyancing assistant. Ms. Turpin had already performed some of that work already in her part-time work at Laughlin during the summer of 2014. Ms. Gushue was relatively busy and expected to be significantly busier in the new year. Ms. Gushue in turn spoke with Mr. Laughlin who agreed to give that a try. Ms. Turpin’s contract was extended. During this time, Ms. Gushue began teaching Ms. Turpin aspects of the junior conveyancing position.

[97]           At the end of January, Ms. Turpin became a full-time employee as the junior conveyancer. Ms. Sullings confirmed that she understood that Ms. Turpin was going to become Ms. Gushue’s assistant in the conveyancing department. In February, when Ms. Gushue took bereavement leave, Ms. Turpin handled conveyancing on her own with some assistance from Ms. Howell. She continued to work with Ms. Gushue throughout March, April, May and June 2015 until she stepped back into the receptionist’s role.

[98]           Mr. Laughlin said that the medical limitations experienced by Ms. Sullings caused only a minimal inconvenience in the office. People were not frustrated by her medical condition or her limitations, but rather were frustrated because the backlog for closing files had developed and was continuing to grow. Mr. Laughlin testified that he had no knowledge of Ms. Sullings suffering from clinical depression and no knowledge of her taking medication for depression.

1. c)   The appointment

[99]           Mr. Laughlin testified that he had a policy in place in the firm that the receptionist was not to book appointments for clients except for lawyer referrals. His policy was that legal assistants were to book appointments with the lawyers because the legal Assistant would be familiar with the file or issue. In some cases, an appointment for an existing client would not be necessary as the legal assistant familiar with the file could look after whatever issue the client had and provide whatever information the client was seeking.

[100]      Ms. Howell testified that legal assistants booked appointments. The office policy was not to book an appointment if it was unnecessary. Ms. Howell said the receptionist was in no position to assess whether an appointment was necessary, while on the other hand, a legal assistant familiar with the client’s file could make that determination.

[101]      Ms. Wallman testified that Ms. Sullings passed on client calls to her. If a new client came in, Ms. Wallman worked closely with Ms. Sullings to complete the client intake sheets. She agreed that the firm’s policy was that legal assistants book appointments. She testified that she had considerable knowledge and experience on the basis of which she could determine whether an appointment was necessary. In some cases, Ms. Wallman said, she could answer the client’s questions and address the issue over the phone. For that reason, Ms. Sullings was instructed to direct calls to her.

[102]      Ms. Sullings testified that in March 2014, Mr. Laughlin had occasion to speak to her about work performance. I note that there is some dispute about the date and that it may have been in 2015. Regrettably, witnesses were not as precise as they could have been with dates of certain events. Evidence suggested that Ms. Sullings may not have returned to the firm from her third hip surgery until late March or early April of 2014. Consequently, this event may not have taken place in March 2014. Mr. Laughlin suggested it might have been in March 2015. While that date makes more sense in context, it was not established with any certainty.

[103]      In any event, Mr. Laughlin said that Ms. Sullings was not paying attention to details as much as she used to and that some things had been missed. Ms. Sullings explained that for about a week prior to this, a client had been calling every day asking for Mr. Laughlin. By Friday, she said, the client was very angry and wanted to talk to Mr. Laughlin so she set up an appointment. The client came in to see Mr. Laughlin who was unprepared for the meeting.

[104]      Mr. Laughlin testified that he had not been warned about the appointment and had no opportunity to prepare for the meeting. Mr. Laughlin became angry as a result. After the client left, Mr. Laughlin told Ms. Sullings that “this is strike one and two more strikes and you’re out”. Ms. Sullings testified that she became upset. She said that when he berated her, there was another client sitting in the waiting room waiting to be seen by a lawyer.

[105]      Mr. Laughlin testified that Ms. Sullings took responsibility for making the appointment inconsistent with office policy, but then justified her actions. Mr. Laughlin said Ms. Sullings disagreed with the policy and did not think it necessary to talk to him or his assistant. She was of the view that entering the information on Google calendar was enough.

[106]      Ms. Sullings did not deny that it was office policy for legal assistants to book appointments with existing clients. Ms. Sullings agreed that she had not spoken to or alerted either Mr. Laughlin or his legal assistant about the appointment. Her explanation was that she put the appointment into Mr. Laughlin’s calendar because the client was so persistent and angry. She said she was not responsible for doing anything more. Nonetheless, Ms. Sullings conceded that she also thought that she might be fired over this.

[107]      An associate with the office, Mr. Einarsson, testified that Ms. Sullings had asked him on a number of occasions if Mr. Laughlin was going to fire her. Mr. Einarsson said he did not want to involve himself in office politics so he avoided commenting.

[108]      Regardless of the imprecision on the date, it is undisputed that the event occurred. I am satisfied that it occurred sometime after Ms. Sullings returned from her February 2014 hip surgery. I am also satisfied that it was office policy for legal assistants to book appointments for existing clients. It is undisputed that Ms. Sullings made the appointment and did not inform Mr. Laughlin or his assistant. Further, while this event was not among those specifically listed in the dismissal letter, it is illustrative of the assertion in the letter that Ms. Sullings had been warned that she was not paying attention to details and that she was aware that her employment was in jeopardy.

1. d) The R. Family Law matter

[109]      Ms. Sullings testified that there was an occasion in May 2015, when Mr. Laughlin called her into in his office. Ms. Wallman, who is the family law paralegal, was also present. Mr. Laughlin said that there had been an envelope with documents placed at the reception desk with a memo containing detailed instructions for Ms. Sullings. The documents were for a Mr. R. and were to be served in preparation for a court application.

[110]      According to Mr. Laughlin, Mr. R. had been represented by uncooperative counsel. Mr. R. was behind in support payments and Mrs. R was on social assistance. However, there were some funds sitting in trust that required a court application and an order for Mrs. R. to access them. Mr. R. needed to be served. However, Mr. R. was evading service and his counsel was not cooperating. Then Mr. R. and his counsel had a falling out and Mr. R. was now going to represent himself. He had a letter or note to that effect which he was willing to drop off at the firm. Mr. Laughlin thought this was an opportune occasion to serve him. Mr. Laughlin testified that Ms. Sullings was told that he needed to see Mr. R. and not to let him leave without seeing Mr. Laughlin.

[111]      Ms. Wallman testified that she prepared the documents to be served on Mr. R. She was aware that Mr. R was going to attend the office. Ms. Wallman said she prepared the memo instructing Ms. Sullings as to what she had to do. She also prepared an affidavit of service. It was not clear exactly when the affidavit was prepared, but it was dated to be executed on May 27, 2015. The affidavit specified that Ms. Sullings had served Mr. R. with a Notice of Application filed May 8, 2015, an Affidavit of Mrs. R. sworn May 7, 2015, a Form 8 Financial Statement sworn May 7, 2015, and a Requisition filed May 14, 2015.

[112]      Mr. Laughlin had instructed that he wished to speak to Mr. R and to obtain a copy of his photo identification for the affidavit of service. Ms. Wallman said the memo to Ms. Sullings was on top of the documents. She could not recall if the documents were in an envelope or bundled together with an elastic band or large paper clip. Ms. Wallman did not retain a copy of the memo. She testified that it was not her habit to retain such intra-office memos. Mr. Laughlin testified that typically they would not save or preserve internal memos.

[113]      Ms. Wallman also said she spoke to Ms. Sullings about the file. She told Ms. Sullings that Mr. R. was coming into the office and he needed to be served with the documents. Specifically, she said that when Mr. R came in to the office, Mr. Laughlin needed to see him.

[114]      Ms. Sullings denied that Ms. Wallman had told her that the contemplated application to court could not be made unless Mr. R was served. She denied any such conversation and denied being told that it was important to properly serve him and just hand the documents to him. Ms. Sullings testified she did not know what the documents were about. She simply knew it was a package to be handed to Mr. R. when he came in.

[115]      Ms. Sullings said there was no memo. If there was, she said she never saw it. She said three other people saw the memo, but not her. The three were Ms. Wallman, Ms. Turpin and Ms. Aasman.

[116]      Ms. Sullings agreed that she gave the package of documents or the envelope to Mr. R., but did not have him wait for Mr. Laughlin. Mr. R. signed for it and left. She did not get a copy of his photo identification. Ms. Sullings could not recall whether the package was in a small envelope, a manila envelope or just documents put together. She said whatever was left at the front with his name on it, she just gave it to Mr. R.

[117]      Mr. Laughlin testified that he was aghast and upset about this as was Ms. Wallman. He said that he called Ms. Sullings into his office and explained to her the seriousness of the mistake. Mr. Laughlin told Ms. Sullings that she was not paying attention to details the way she had in the past. After Mr. Laughlin berated her for not advising him that Mr. R was in the office, Ms. Sullings offered to call him to get him to come back. Mr. Laughlin said his impression was that she could not understand what the big deal was that she would simply call Mr. R and have him come back. However, Mr. Laughlin told her not to bother as the opportunity in his view had been missed. Ms. Sullings agreed that Mr. Laughlin explained why simply calling him back would not work as he was evading service.

[118]      Ms. Turpin testified she saw Ms. Sullings get the envelope and saw the memo on it. She testified she read the memo up to a point, but has no knowledge beyond that.

[119]      Ms. Howell recalled the situation regarding the R. matter. Ms. Howell testified that she had heard about it from other people in the office. She recalled that Ms. Sullings apparently did not follow the instructions in the memo that was placed on top of the material she had for Mr. R. Ms. Howell said that Ms. Sullings was so upset by the incident that she had to take a week off work. In cross-examination, Ms. Howell agreed that she did not prepare the documents in question. Ms. Howell said that Ms. Wallman prepared the file and was annoyed that her instructions had not been followed.

[120]      Ms. Sullings said she was upset by the whole incident. Ms. Sullings also said that she understood how serious the matter was after she found out what it was all about. She denied that the seriousness had been explained prior to Mr. R. coming to the office, but she agreed that she understood when spoken to by Mr. Laughlin after Mr. R. had gone. While Mr. Laughlin conceded that he did not put anything in writing to Ms. Sullings about this incident, Ms. Sullings testified Mr. Laughlin “made it perfectly clear.” She conceded that she understood that this would also affect her job security and she knew where she stood.

[121]      I conclude that Ms. Sullings would not have been able to swear the affidavit of service because she testified she was not familiar with the documents she gave to Mr. R. She simply gave him what was left at the front counter in the envelope. I accept Mr. Laughlin’s evidence that the opportunity to have the application heard was lost.

1. e)   The carpet stain

[122]      Mr. Laughlin testified that sometime in the spring of 2015 someone had spilled something on the carpet just inside the entrance way of the office. The stain was about 6′ x 3′ – it was fairly large and significant. It was very noticeable and the first thing that a person would see upon entering the office. In cross-examination, Mr. Laughlin said it could have appeared earlier in the winter.

[123]      Mr. Laughlin said he asked Ms. Sullings to arrange to have the carpet steam cleaned. He said that Ms. Sullings came back with a $300 or $400 quote. Mr. Laughlin testified that he said that was too much and said to arrange for someone to go and rent a steam cleaner at Safeway for a couple of hours. Ms. Sullings did not do it. Ultimately, Mr. Laughlin said that eventually, he himself rented the steamer and cleaned the stain. His concern was that Ms. Sullings was not taking the matter seriously and did not appreciate how it could undermine the first impression that clients would have upon entering the office.

[124]      Ms. Sullings testified that the carpet stain in the entrance area to the office had been on the floor for a while. She was asked by Mr. Laughlin to have it removed. She obtained an estimate from the building superintendent in the amount of $325. She advised Mr. Laughlin of the estimate and he told her that was far too expensive. As a result she said she contacted three additional people. Two wanted to provide a quote and the third said the coffee stain had been in the carpet so long it probably would not come out. Ms. Sullings testified that the day she went to take that information to Mr. Laughlin was the day that he gave her the termination letter.

[125]      In cross-examination, Ms. Sullings agreed she had been told by Mr. Laughlin of the importance of a first impression when clients come into the office. She said she understood that a carpet stain within two to three feet of the entry door did not project a favourable image. She agreed she had been instructed to address the issue and had not yet done so when she was dismissed.

[126]      Ms. Gushue testified that she overheard Mr. Laughlin tell Ms. Sullings to attend to the stain. She recalled that Mr. Laughlin ultimately took care of it himself after Ms. Sullings had been dismissed.

1. f)   Scanning: The digital preservation of closed files issue

[127]      Mr. Laughlin testified that, early on, a computer network was established in the office. The office has a computer room where the server is housed. Each individual desk is connected to the server via ethernet. The Z drive on the server is where all of the data, including client data, is stored. The Z drive has a number of directories. Each staff member has a directory in their name. The Z drive also contains directories divided by practice area.

[128]      The Z drive also has a closed file directory and a scans directory. After the firm decided to preserve closed files digitally, a closed file directory was created on the Z drive. Also important to the digital file preservation process is the directory for scans. I will say more about this aspect below.

[129]      Each workstation has a tower with a local C drive on which the word processing program resides. There is no data stored on the local C drive. All data is intended to be stored on the Z drive on the server. The family assistant has specialized software on her local C Drive called “divorce mate” and the conveyancer has conveyancing software on her C drive as well.

1. i)      The file closing paper process

[130]      Mr. Laughlin testified that the Law Society of British Columbia requires and recommends a formalized file opening, file retention, and file closing process. Mr. Laughlin said that in 2009, because they now had a receptionist to take on these duties, the duties of file opening, retention and closing were assigned to her.

[131]      Ms. Sullings testified that she became responsible for the file closing process. In cross-examination she conceded that file closing was part of her job duties from early on. The lawyers and legal assistants did not close files themselves. She agreed that she knew that the information had to be preserved and she knew that the Law Society has rules about the preservation of files.

[132]      At the time when Ms. Sullings began work for the firm, the file closing process was entirely paper-based. When the file was completed, an assistant to the responsible lawyer put the file in a box for closing. Ms. Sullings retrieved the file from that box and completed a “Closed File Information Form and Checklist” [Checklist] on which she inscribed the original file number, a closed file number, the name of the client, name of the responsible lawyer, the nature of the file, and a client home address. Closed file numbers were sequential. Ms. Sullings checked to see if there were any documents that needed to be returned to the client and if there were any important dates that needed to be diarized. She agreed that the file closing checklist required her to pull out original documents and give those to the legal assistants before closing the file.

[133]      Ms. Sullings also said initially that she maintained a list of closed files on an Excel Spreadsheet [closed file list]. The closed file list showed the closed file number, the name of the client, the “old” file number which was used when the file was active, and the closed file box number in which the closed file was stored. If someone ever needed to retrieve a closed file, they could search the closed file list to identify the box number in which the closed file was stored and the closed file number. That way they could go to the correct box and pull the correct file.

[134]      In cross-examination, Ms. Sullings agreed that apart from the times when she was away and a person named “Ann”, who is no longer with the firm, closed files, she was the only person who completed the Checklist and maintained the closed file list. She then qualified her answer that on occasion, someone else would make the entries, but conceded that maintaining the closed file list was her job. Later, she denied that it was her job to maintain the integrity of the closed file list. When asked whose job it was to maintain the list, she said she had no idea. She said that others made entries and she did not bother to check if they did it correctly. She assumed they knew what they were doing.

[135]      When Ms. Sullings finished closing the file, she put it in a closed file box. The closed file boxes were also sequentially numbered for identification. The closed file boxes were placed in the storage room.

[136]      Once the storage room was filled up with closed files, any additional boxes were put into a vacant office. Some boxes were stored in Mr. Laughlin’s garage. Mr. Laughlin said that there may have been a number of boxes in his garage for a short period of time, but these were brought back to the office. Only a handful of boxes remained for any lengthy period of time. These were also returned to the office eventually.

[137]      Ms. Sullings testified that there were many boxes held off site in Mr. Laughlin’s garage.

1. ii)    Digital preservation of closed files

[138]      In July 2013 it became apparent to the firm that they were running out of physical space for storing closed files. Mr. Laughlin decided to preserve closed files in a digital format on the computer system.[2] As a consequence, the files were to be scanned, saved, back-ups created, and the paper files shredded. Both parties and all witnesses referred to the digital preservation of the closed files as “scanning”. They also used the term “scanning” to mean the physical act of scanning on the large photocopier. The physical scanning of the file on the photocopier is only one step in the process of digitally preserving the closed files.

[139]      Ms. Sullings testified that after the decision to preserve the files in digital format was made, she continued to close files. The first part of the file closing process remained the same. A file to be closed was put in a box. Ms. Sullings retrieved it and completed the Checklist. However, the last step of retaining closed files in physical closed file boxes was now replaced with the digital preservation process.

[140]      Once the Checklist was completed, either one of two things could happen. Either the file was physically placed into a closed file box for scanning and shredding at a later time, or, rather than being physically placed into a closed file box, it could be scanned immediately and the paper version then shredded. However, at the material time due to the extensive backlog of earlier closed files waiting to be scanned, current files were not immediately preserved in digital format. Ms. Sullings put the closed files in the appropriate closed file box, wrote “closed” on the box, and put the box in storage until it was scanned. Ms. Sullings testified that once the files in a closed box were scanned, the boxes were marked “scanned” or “shred” on the lid, and placed behind or under her desk. She then shredded the files in the box.

[141]      Ms. Sullings said someone else did the scanning of the closed files in a closed file box. Ms. Sullings testified that many people did the scanning including Stacy, Angela and Mr. Laughlin’s nephew and niece. She said that when Angela came initially in early 2014, she started doing the backup of the closed files on disk. Ms. Sullings also said that from December 2014, Ms. Turpin did the scanning. Ms. Sullings also said that she occasionally had scanned after December of 2014, but nothing in great volume. Ms. Sullings said that she began scanning more in April and May of 2015. She said that she received training in scanning sometime at the end of February or beginning of March 2015. The training was about a half-day and given by Ms. Turpin.

[142]      Ms. Howell testified that when the firm decided to change to a digital preservation system and acquired the scanner, she taught Ms. Sullings the scanning process, including how to back up the files onto a disk which was then kept in the safe. Mr. Laughlin testified that he believed he was present when Ms. Howell demonstrated the scanning function on the photocopier. She also confirmed that when Ms. Sullings was away on medical leave, other people attended to file closing and scanning. However, she also said that when Ms. Sullings was in the office, it was Ms. Sullings’ job to do the closing and scanning.

[143]      Mr. Laughlin testified that initially there was a small scanner located at Ms. Sullings’ desk. However, a large photocopier was obtained which had photocopy, scan, print and fax functions. Mr. Laughlin said that Ms. Sullings was shown how to scan on the large photocopier at or around the time that the firm decided to change to digital preservation. The process involved pushing the scan icon instead of the photocopy icon and placing the material to be scanned in the feeder and letting the machine do the scanning.

[144]      In cross-examination, Ms. Sullings suggested to Mr. Laughlin that scanning would interfere with her primary duties as receptionist. She suggested that if the phone rings she would have to move back to her desk to answer the phone and stop the scanning. Mr. Laughlin replied that the photocopier had a large feeder and that would not necessarily interfere with her duties as a receptionist. He also said he recognized that Ms. Sullings had mobility issues, but the impact of putting a batch of material into the photocopier feeder to be scanned would have minimal impact on her mobility.

[145]      Mr. Laughlin testified in cross-examination that physical boxes were replaced by virtual boxes. The virtual box was a folder created in the closed file directory on the Z drive. Therefore, as an example, physical closed file box number 12 which contained closed files became a folder named box number 12 in the closed file directory on the Z drive. The closed paper files from the physical box number 12 were then scanned and ultimately saved to file subfolders located within the file folder labelled box number 12.

[146]      Mr. Laughlin said the photocopier allowed three options for saving the scanned material. The operator could manually type in the closed file folder on the Z drive replicating the physical closed file that previously would have been stored in a box. The scanned file would then be saved directly into that file folder. Second, the operator could select the appropriate folder from Z drive menu through which the operator could browse, highlight the selected folder and direct the copier to save the scanned material to that folder. Finally, if the operator did not choose either of the first two options, the copier would simply assign a number to the scan a save it to the scans directory on the Z drive.

[147]      If the last option was selected, then once the actual scan was complete, Ms. Sullings was required to complete the process by opening the scans directory, retrieving the scanned closed file, and saving the scanned closed file in the appropriate closed file folder located in the closed file directory on the Z drive. That step is done from the desktop computer. Mr. Laughlin said that she could access the scanned file on the Z drive, open the scanned file to make sure all of the documents are there, and then re-save it by creating a new folder or subfolder, as may be required if not already created, within the closed file directory on the Z drive.

[148]      Mr. Laughlin testified that as a back-up, the scanned file was also to be saved onto two CD-ROMs. One was kept in the safe in Mr. Laughlin’s office and the other was kept off-site. Mr. Laughlin also said that he told Ms. Sullings that when the files were closed and scanned, backups were to be made to ensure that the files would not be lost in the event of some disaster. Mr. Laughlin did not recall Ms. Sullings telling him that she did not know how to do backups.

[149]      Mr. Laughlin testified that Ms. Sullings’ responsibility for scanning the files was part of her closing duties. He said he would have explained that to her at about the time when the decision was made to digitally preserve closed files.

[150]      In cross-examination, Ms. Sullings agreed that she was shown how to scan a file when the digitization was first started in 2013, but she said it was not enough to really teach her the process. Further, she added that she was not shown how to scan large quantities. She did say that she scanned documents from time to time that were only a couple of pages long. She conceded that the scanning process was essentially like photocopying on the big photocopier. She agreed that when scanning, as in photocopying, documents are placed in the feeder of the photocopier, a name is entered and the start button is pushed.

[151]      Ms. Turpin testified that when she was initially hired to replace Ms. Sullings in January of 2014, Ms. Sullings had taught her how to scan closed files. Ms. Turpin said Ms. Sullings followed steps set out on a piece of paper in her own handwriting that she kept at her desk. Ms. Turpin confirmed that the Checklist was completed first. A closed file number was assigned and the information was entered on the closed file list in Excel. The file was put back in the box to await scanning.

[152]      After Ms. Sullings went off on her medical leave, Ms. Turpin took over the receptionist’s responsibilities, including the file closing process and scanning. In cross-examination, Ms. Turpin said that while Ms. Sullings had shown her how to scan closed files, she realized upon assuming the duties that the process she was taught was in some ways unhelpful. Ms. Turpin said that, in effect, she then taught herself the process.

[153]      Ms. Turpin testified that when Ms. Sullings returned to work in December of 2014, Ms. Sullings said she did not know how to scan the closed files properly. Ms. Turpin said that they scanned a file together and as they completed each step, Ms. Turpin typed up the process step by step and saved the completed document to the computer. This document, titled “How to Scan a Box/File”, was last modified on computer on December 11, 2014 [December 11 Document]. Ms. Sullings testified that she believed that she had created the December 11 Document. She did not recall seeing it in 2013.

[154]      Another document, titled “Scanning”, last modified December 3, 2014 [December 3 Document] was also entered as an exhibit. Ms. Sullings conceded that both the December 11 Document and December 3 Document were in her computer directory on the Z drive.

[155]      Ms. Sullings testified that she did not create the December 3 Document and had never seen it. Ms. Turpin testified that Ms. Sullings created it and had mentioned that the December 3 Document was in a binder containing a description of basic receptionist duties. She had shown Ms. Turpin the document when Ms. Turpin first started. The binder was kept “up front”. Ms. Turpin said that once she learned how to scan, she did not have to refer to this document.

[156]      The December 11 Document also reflects the description of the scanning process provided by Mr. Laughlin in his evidence. The December 11 Document instructions for the digital preservation process (scanning in the broad sense) read as follows:

 

How to Scan a Box/File

(1)           Open up the Z; Scans. Minimize.

(2)           Open up Z; Closed Files Scanned

(3)           Right Click. New. Folder. Named folder whatever box you are scanning. (ex. Box 161) Hit enter.

(4)           Open your new folder (Ex. Box 161)

(5)           Grab file from box (Ex. CF 3408) Right click New, Folder, name folder whatever closed file is (Ex. CF 3408) Hit enter.

(6)           Open folder CF 3408 on computer.

(7)           Grab folder pull apart removing all staples, paper clips, tape etc. Any corners that are messy cut down.

(8)           Go to scanner put file in, hit Image Send, Address Book, QRSTY, Server_Scan Folder and Start

(9)           When file is completely scanned go back to computer find the scanned files in Z; Scans. Highlight the file, right-click and cut the file and paste it into the Box and CF. So example Box 161 open CF 3408 and right click and paste file into it.

(10)      Repeat steps 5 – 10 till entire box has been scanned and shred all the paper.

[157]      Steps (1) to (6) and (9) are done on a desktop computer. Step (8) is done on the office photocopier/scanner. I understand from Mr. Laughlin’s description that Step 9 could be eliminated from the process if the operator doing the scanning at the photocopier directed the machine to save the scan directly into the already created subfolder in the virtual box folder in the closed file directory on the Z drive. Step (10) is done using the office shredder.

[158]      The December 3 Document titled “Scanning” essentially contains a replica of the steps outlined in the December 11 Document. However, the steps are set out in a somewhat different and disjointed order.

[159]      While Ms. Sullings testified she believed she created the December 11 Document, I am not persuaded that she was the creator of the document. Ms. Sullings testified that she was not properly trained in the scanning function until sometime in March 2015. She insisted that it was well after she returned to work on December 1, 2014 after her last hip surgery. She testified that at that point she was not conversant with the scanning process. In her argument, Ms. Sullings said that whatever training she had received, scanning was not her forte and she was not very good at it. She was not very successful at it nor was she keen on it. She did not like it. She said it was difficult for her to move from reception to the copier to address files that got jammed.

[160]      I find that it is more likely than not, that Ms. Sullings was not the creator of the December 11 Document. Her testimony, that she was not conversant with the scanning process, would be inconsistent with any claim of authorship of a document that in precise detail lays out the scanning process.

[161]      On the other hand, Ms. Turpin testified that she was the author of the December 11 Document and that it was created in early December 2014 when she walked Ms. Sullings through the scanning process step-by-step. I am persuaded that Ms. Turpin was knowledgeable in scanning and therefore find that, more likely than not, she was the creator of the December 11 Document as she described.

[162]      Both Ms. Turpin and Ms. Sullings claimed that they typed the document. I find that regardless of who actually did the typing, the creative mind behind the document was Ms. Turpin’s.

[163]       As noted, the December 3 Document, while addressing the same steps, is somewhat disjointed. It is unclear whether the document was created on December 3 or whether it was last adjusted and/or saved on December 3. Ms. Turpin said that the December 3 Document was the document found in the binder at the front that contained a description of the receptionist duties. While Ms. Sullings denied authoring or seeing the December 3 Document, I am persuaded that Ms. Sullings referred to the document when training Ms. Turpin before she left on her leave in February of 2014. I am also persuaded that Ms. Sullings referred to a handwritten instruction sheet that she used when scanning when Ms. Turpin first arrived at the firm.

[164]      One final step was to save the closed files to a disk for back-up. Once a sufficient number of closed files had been scanned to fill up a disk, they were copied from the Z drive on the computer server to a disk. Ms. Turpin emphasized that it was important to copy to a disk and not “cut and paste” as the latter would result in the file being erased from its location on the Z drive. The backup disks were kept in a safe in Mr. Laughlin’s office.

[165]      Ms. Sullings agreed that backups were made. However, she testified that Angela was the person who scanned the closed files to the disks, and that creating backups was not in her job description. Ms. Sullings testified that at some point Mr. Laughlin told her she should be backing up the scanned closed files. Ms. Sullings said she spoke to Ms. Turpin who told her to wait until all the files had been scanned. Ms. Sullings said she had never done a backup.

[166]      Ms. Turpin testified that when she was replacing Ms. Sullings on leave, she performed the paper file closing steps, and then steps (1) to (10) of the scanning process up to and including shredding. Ms. Turpin testified that when Ms. Sullings returned from leave, it was Ms. Sullings’ job to perform that work. However, Ms. Turpin said that from time-to-time she helped in the scanning process. When Ms. Turpin helped out, she performed steps (1) to (9). Because the firm’s accountant only worked in the office twice per month, Ms. Turpin used the accountant’s desktop computer to access the Z drive on the computer server in order to perform steps (1) to (6) and (9). The paper file closing steps were still done by Ms. Sullings and Ms. Sullings did the shredding.

[167]      Mr. Laughlin testified that computer skills, office systems and processes were not Ms. Sullings’ strength. She did not do well with systems or protocols and did not excel in that area. To the extent that scanning engaged both the use of the photocopier and her desktop computer, I find that Ms. Sullings did not seriously contend that Mr. Laughlin’s impression was not accurate.

[168]      Mr. Laughlin agreed that Ms. Sullings had convinced others in the office to do more of the actual scanning. He said if Ms. Sullings was able to convince others, then more power to her. As long as the job was getting done and Ms. Sullings was able to enlist the help of others, he was not going to interfere. However, he said that despite this, the scanning was her responsibility and not anyone else’s responsibility.

[169]      Ms. Sullings testified that she and Ms. Turpin had an agreement that Ms. Sullings would do the file closing at the beginning of the process and the file shredding at the end of the process, but that Ms. Turpin would do the scanning part. In cross-examination, Mr. Laughlin asked Ms. Sullings whether the scanning was the responsibility of various other individuals in the office, particularly the legal assistants. Ms. Sullings agreed that it was not. Ms. Sullings also testified in cross-examination that she never scanned a single file until after December 2014.

[170]      In cross-examination, Mr. Laughlin suggested to Ms. Sullings that the entire file closing process consisting of retrieving, filling out the checklist, returning documents to clients, diarizing important dates, scanning and shredding was all one process and that she was responsible for that process starting in 2013. Ms. Sullings responded that she did not know when she was formally told she would be scanning. However, she agreed that she did scan some files earlier, contradicting her testimony that she never scanned a file before December 2014.

[171]      Mr. Laughlin also suggested that the reason other people got involved in the scanning was because Ms. Sullings was falling behind. Initially, she agreed that it was not the job of other people who got involved to close and scan files. She then said she did not know if they were doing the scanning for themselves or who told them to do it.

[172]      Ms. Sullings agreed that scanning files was part of the closing process as much as diarizing important dates. She agreed that scanning and ensuring preservation was central to the file closing process. She agreed that to the extent they were able, others would help her. But then she said it was only Ms. Turpin who helped. She said that Ms. Turpin would help when she had nothing to do for Ms. Gushue. She also said she never asked for help, but agreed that she never refused when Ms. Turpin offered to help. She agreed that she could have refused Ms. Turpin’s offer to help scan. Ms. Sullings said that Ms. Turpin had her own job and would help when she had nothing else to do.

[173]      Ms. Sullings said that, depending on the thickness of files and the number of files in a closed file box, it would take her two days to do a box with closed files until it was ready for shredding.

[174]      Ms. Sullings agreed that to retrieve a closed file from the Z drive, a person would open the closed file directory and click on a file folder representing a virtual box and then click on a subsequent subfolder representing the closed file. The scanned documents would then appear on the screen.

iii)   Was scanning part of Ms. Sullings’ job?

[175]      I find Ms. Sullings’ evidence was both internally and externally inconsistent on this question. At one point she said that she did not realize the scanning was now part of file closing. She said that she scanned a few letters prior to December 2014 and that, prior to December 2014, she had never scanned a single file. When it was put to her in cross-examination that the entire file closing process – retrieving, filling out the checklist, returning documents to clients, diarizing important dates, scanning and shredding are all one process for which she was responsible beginning in 2013, Ms. Sullings said she did not know when she was formally told that she would be scanning. She also agreed that she did do some file scanning before December 2014. At another point, she said she only began scanning in March/April of 2015. Ms. Sullings also testified that she had never been told that she had to be scanning all the time.

[176]      Ms. Howell recalled an office meeting at which Ms. Sullings mentioned that scanning was not her job. Ms. Howell said that she was corrected and told that scanning was part of her job. Ms. Howell also said she showed Ms. Sullings some shortcuts on the scanner. I surmise the shortcuts may have been to save scans directly into the closed file folder in the closed file directory on the Z drive bypassing saving them into the scans directory. Nothing turns on this latter point.

[177]      Ms. Wallman also testified that she recalled a meeting at which the issue of scanning came up. Mr. Laughlin told Ms. Sullings that scanning was her job and Ms. Sullings appeared surprised.

[178]      Ms. Gushue also testified that the scanning and shredding was part of Ms. Sullings’ job description. Ms. Gushue said that Ms. Sullings was responsible for the file closing system.

[179]      Ms. Sullings initially said she was never trained in scanning until March 2015. In cross-examination, Ms. Sullings agreed that she was the one who trained Ms. Turpin in January of 2014. She also agreed that when Angie was hired as a replacement for her, she trained her as well. She agreed that no one else trained Angie. Ms. Turpin said Ms. Sullings showed her how to scan in January 2014. While Ms. Sullings contended in argument that Ms. Gushue trained Ms. Turpin in scanning, Ms. Gushue testified that “we” trained her – she and Ms. Sullings. Ms. Gushue testified that Ms. Sullings trained Ms. Turpin in receptionist’s duties, and that along with Ms. Gushue, trained her in photocopying and scanning.

[180]      Ms. Gushue also said that Ms. Turpin stepped into Ms. Sullings’ shoes when Ms. Sullings left on medical leave. Ms. Gushue testified that prior to Ms. Turpin, scanning was fully Ms. Sullings’ responsibility. Ms. Turpin testified that when she was trained in receptionist duties, closing, scanning and shredding was part of the training. She testified that she was told that this job duty was the receptionist’s responsibility and that never changed.

[181]      Elsewhere, Ms. Sullings conceded that she had been shown how to scan when the firm first moved to digital preservation (2013). However, she qualified her answer by saying it was not enough for her to understand the process properly and she never scanned big files.

[182]      Ms. Sullings agreed that it was not the job of the legal assistants to close files and scan closed files. But then she said others did close and scan. Initially, Ms. Sullings agreed she understood other people were trying to help because the scanning had fallen behind and the backlog was growing. Then she said it was not their job and she did not know why they were doing it or who had told them to do it.

[183]      Ms. Sullings agreed that Ms. Turpin helped her with scanning when she had nothing to do for Ms. Gushue. However, she said that she did not ask for Ms. Turpin’s help, but did not refuse it. Ms. Sullings went on to say that she and Ms. Turpin had an agreement, that Ms. Sullings would close files and Ms. Turpin would scan them.

[184]      Ms. Sullings said she was never told that it was her duty to oversee the scanning. She said she was never told to make sure that the files were correctly scanned, saved and that backup disks were created. The only functions she said she performed were the initial step of completing the Checklist and the final step, the shredding of the file. She said other people closed and scanned files.

[185]      Ms. Sullings disagreed that she was to supervise Mr. Laughlin’s nephew and niece when they worked consecutive summers at the office, although she agreed that they were generally under her supervision. Ms. Sullings went on to say that she did not know she was supposed to tell them what to do. She did concede that when both Mr. Laughlin’s nephew and niece did scanning, they used the photocopier which is about six feet from Ms. Sullings’ desk. However, she denied showing them how to scan and did not know who trained them.

[186]       I find there is no dispute that the digital preservation of closed files (scanning) was not the job of any of the legal assistants or the lawyers. I find it is beyond dispute that when others scanned close files, they did so in an effort to help Ms. Sullings with her work. I find that there is no dispute that Ms. Sullings did receive training in 2013 in the digital preservation process. I also find there is no dispute that she did some scanning prior to December 2014 when she returned from her last medical leave. I accept Ms. Turpin’s evidence that Ms. Sullings had a handwritten instruction sheet she relied on when scanning. Finally, there is no dispute that Ms. Turpin did scanning as part of her job when replacing Ms. Sullings when Ms. Sullings was on medical leave.

[187]      Against that backdrop, I prefer the evidence of Ms. Turpin. Ms. Sullings was knowledgeable enough to participate in training Ms. Turpin in the scanning process. The fact that Ms. Sullings helped train Ms. Turpin in scanning as a prelude to Ms. Turpin replacing Ms. Sullings on leave, is indicative that the scanning function was part of the receptionist’s job and is consistent with Ms. Turpin’s evidence that she was told that scanning was the receptionist’s responsibility. It is also consistent with the fact that Ms. Turpin scanned while carrying out her duties in the receptionist’s position. Finally, I accept the evidence of Ms. Howell and Ms. Wallman that Ms. Sullings was reminded in meetings that scanning was her job.

[188]      As a result, I find that the digital preservation process was part of Ms. Sullings’ job as a receptionist and integral to her responsibility for the file closing process. The fact that she did not like scanning, was not good at it, tried to divest herself of it whenever she could, or simply chose not to do it, does not change the fact that it was her responsibility and her job.

1. iv) Alleged failure to preserve closed files

[189]      Ms. Gushue recalled that at the end of May 2015, a client came in looking for a document from a prior real estate transaction. Because it was an old file, Ms. Gushue pulled up the closed file list on the computer and proceeded to search for the client’s file. She could not find the file. She then went to another system called PC Law that tracks time, billing and client information to confirm that she had the correct file number. PC Law is used to open a client file, record the client’s address, email, telephone particulars, the type of law and the assigned lawyer. It is also used to perform a conflicts search. She confirmed the correct information and then went back to the closed file list and this time found the client’s name, the associated closed file number and the virtual closed file box folder in which the file should have been in. While she found the virtual box, the file was not in it.

[190]      Ms. Gushue then surmised that perhaps the file had not been scanned because someone had need of it at the time the physical box contents were being scanned. So Ms. Gushue went looking for a physical box and a physical file. She could not find it.

[191]      Ms. Gushue had also noticed that there were very few files in the virtual box so she became concerned that other files may be missing. Ms. Gushue said she spoke to Ms. Turpin. She advised that there were some items in the virtual box, but not the one she needed. Ms. Turpin also went looking for the physical box but she too was unable to find it.

[192]      Ms. Turpin recalls the matter a little differently. Ms. Turpin testified that she believed that sometime around the end of May 2015, a client called the office looking for a document related to a conveyancing matter. Ms. Turpin said Ms. Sullings relayed the call to the conveyancing department. At that time, Ms. Turpin was working as the conveyancing assistant to Ms. Gushue. Ms. Gushue asked Ms. Turpin to look for the file.

[193]      Ms. Turpin pulled up the closed file list and searched the client’s name. She discovered that the file was closed and most likely scanned. She first looked for the physical closed file box, but was unable to find it. She then concluded that it had been scanned. She went to the closed file directory on the Z drive and looked for the virtual box folder. She found the box folder and when she opened that folder, she found some subfolders that belonged in that box, but the specific closed file folder she was looking for was not there. She reported to Ms. Gushue.

[194]      Ms. Gushue asked Ms. Turpin to check whether the missing file was filed in some other folder and whether other files were missing. She testified that over a seven to ten-day period in early June, Ms. Turpin checked a number of virtual closed file box folders, and found that files were missing. Ms. Turpin was vague in her recollection of how that came about. She seemed to recall that there was another missing file, but she did not remember much about it.

[195]      Ms. Gushue and Ms. Turpin reported this to Mr. Laughlin. Mr. Laughlin testified that he was advised by Ms. Gushue and Ms. Turpin that some files were missing from the closed file directory of the Z drive. He confirmed he instructed both Ms. Turpin and Ms. Gushue to go through the entire closed file area of the Z drive as well as other areas of the Z drive and report so that he would know the scope of the problem they were facing. Ms. Turpin said Mr. Laughlin instructed her to search the Z drive to see how big the problem really was.

[196]      Ms. Gushue testified that Mr. Laughlin instructed both of them and that she then asked Ms. Turpin to go through the closed file list and determine which files were saved into correct folders. She was told to indicate that on the closed file list. Ms. Turpin began her task by printing the closed file list. Seventy-one of 139 pages were printed and entered as an exhibit. Ms. Sullings took issue with the fact that not all 139 pages were printed and submitted. Ms. Turpin testified that when she prints from Excel, only the pages of the spreadsheet with cells that contain information print. The remainder do not unless she actually specifies that she wants those pages printed. However, Ms. Turpin said they would show nothing but empty cells with no data.

[197]      I accept Ms. Turpin’s evidence that the remainder of the list would show only empty cells as they had not yet been populated with closed file data.

[198]      Ms. Turpin testified that she then opened every virtual closed file box folder in the closed file directory on the Z drive, and every closed file subfolder to check if the documents in the closed file had actually been scanned and saved in the proper location. She annotated her findings on the closed file list. Ms. Gushue also assisted in doing some of the work and Ms. Gushue’s annotations also appear on the closed file list. Ms. Turpin also searched the whole of the Z drive as well looking for missing files.

[199]      Ms. Gushue testified that Ms. Turpin looked at all of the virtual box folders associated with the entire closed file list. Ms. Gushue said that between the two of them they identified close to 1,000 files that were not where they were supposed to be. Ms. Turpin then searched the whole of the Z drive and could not locate the files. Ms. Gushue also said that Ms. Turpin retrieved the backup discs and was able to locate some of the missing files there. She also found that some files had been saved in the wrong virtual box folders. Ms. Turpin confirmed that she found some files saved in the wrong subfolders or recovered them from the backup discs. Ms. Turpin spent time putting files where they belonged on the Z drive. In the end, however, over 300 files were still missing.

[200]      Both Ms. Turpin and Ms. Gushue testified that they made annotations on the closed file list which Ms. Turpin had printed from the computer. Generally speaking, they both said that checkmarks indicated that the closed files had been scanned and saved in the proper location in the closed file directory on the Z drive. They also both indicated that highlighted files were ones that were missing. In some cases a highlighted file would subsequently have a check mark by it or a notation that it had been found. In some cases the files were found on backup disks and put back in the computer system on the Z drive. In other cases, Ms. Turpin said she drew a vertical line next to the closed file numbers on the list, but could not recall why she did that. I note that on the closed file list exhibit, on some of those pages where Ms. Turpin had drawn the vertical line next to the closed file numbers, Ms. Turpin made a notation “on disk” on the right-hand side next to the closed box numbers. Ms. Turpin’s evidence was that files had been backed up to the disks up to and including box 119 and there were no backups subsequently. In some cases, files that had been highlighted as missing, were later found and noted as “okay” or “good”. In other cases, there was a vertical line and no other annotations. Ms. Turpin could not recall or explain what that meant. Ms. Turpin testified that in some cases files were named incorrectly. Either she or Ms. Gushue noted “named wrong”.

[201]      On some of the pages, Ms. Turpin noted when she was away (“Jenn not here”) and could not have been scanning the files. In those areas a number of closed files were found to be missing. Ms. Turpin also noted times when she was at work and was doing the scanning. In those segments, the odd file was also missing. However, for the most part where Ms. Turpin noted in the margin “Jenn” or “Jenn would of (sic) been scanning” or “Jenn & Ang” or “Jenn & Angela”, virtually all of the closed files were found in the closed file directory on the Z drive. Ms. Turpin was unable to explain in her testimony how she made those determinations at the time.

[202]      Angela was the temp who was there when Ms. Turpin first started working for Laughlin in January 2014. Ms. Turpin said she would come in Friday mornings to help out with scanning because scanning was so backed up.

[203]      Ms. Turpin said she can determine when a box was scanned because the Z drive updates dates. She also said that she started scanning at box 170 of the closed file list. However, one of the marginal annotations suggests she may have started at around box 133. However, Ms. Turpin, Ms. Gushue and Ms. Sullings all testified that some closed file boxes were not scanned in chronological order. Ms. Turpin also noted that there were problems found in some of the recent scanning, beginning at box 188, and notably boxes 190, 192 through to 194. These were done at a time When Ms. Turpin said Ms. Sullings would have been doing most of the scanning – the late spring of 2015. Ms. Sullings conceded that she was scanning sometime after March 2015, and said she was scanning until her dismissal.

[204]      Ms. Turpin noted that in one case, five boxes of Mr. Einarsson’s files were put into a room for Ms. Sullings to scan. These five boxes went missing and were never found. In other cases, Ms. Turpin recreated whatever she could find from other directories on the Z drive from documents that were generated by the firm’s word processing program.

[205]      Ms. Turpin also testified that she recalled scanning box 174 because she had to go into that file folder on a number of occasions to retrieve conveyancing files. She said that a couple months after she had scanned it, she went in to find that the files had been deleted. She had to reconstruct the box. Fortunately, files from this box were in one of five that had not yet been shredded, so Ms. Turpin was able to rescan and reconstruct the missing files. She asked Ms. Sullings whether she remembered deleting or doing anything with these files and Ms. Sullings said no.

[206]      Finally, Ms. Turpin said she found one box that had been scanned and saved, but also found another box waiting to be scanned and saved with the same box number on it. Ms. Turpin said it was the receptionist’s job to put the closed box number on the box once the Checklist was completed.

[207]      Ms. Gushue said she and Ms. Turpin reported what they had found to Mr. Laughlin in about the third week of June. They provided Mr. Laughlin with the annotated closed file list. She testified that she was motivated by her concern about the firm’s position with respect to missing files. She left it with Mr. Laughlin as to how to proceed.

[208]      Ms. Turpin testified that she presented her findings to Mr. Laughlin. She took him through the annotated closed file list pointing out what was missing, what she had found and what she had been able to restore.

[209]      Mr. Laughlin said that, among other things, they discovered that no backups had been made from box 120 up to box 205. However, closed files from box 195 to 205 had not yet been scanned at the time Ms. Turpin examined the closed file directory, so there would be no reason for those to have been backed up on disk. Mr. Laughlin was concerned that Ms. Sullings had not been properly scanning and saving the files or doing the backups. Mr. Laughlin said that Ms. Sullings was trained to do it and it was not happening. There is nothing in her physician’s report that indicated that she was unable to do the scanning as long as other people lifted the physical boxes for her from which she could retrieve the files to be scanned.

[210]      Ms. Turpin also testified that Ms. Sullings knew that Ms. Turpin was going over the scanned files. Ms. Turpin said Ms. Sullings had asked her what she was doing and Ms. Turpin told her that she was reviewing the scanned files because there had been some issues about missing closed files. Ms. Sullings wanted to know why Ms. Turpin was doing this job, and Ms. Turpin said she was instructed to do it.

[211]      Finally, Mr. Laughlin testified that he did not report the closed file issue to the Law Society. He said that most law firms do not keep records beyond what was required by the Law Society but his firm does more than what is required.

1. v)    Sullings’ explanation

[212]      Ms. Sullings testified that on June 22, 2015 everyone was looking for a missing file and could not find it. Ms. Sullings said that as a result, she began assembling a list of deleted boxes in order to check Angie’s computer to see if they were stored on her computer. Ms. Sullings went on to say that they should have been on the Z drive. She confirmed her understanding was that scanned files were saved to the Z drive, but then she went on to say that everybody has a Z drive and that there has to be more than one Z drive. I infer that is why she thought to check Angie’s computer.

[213]      Ms. Turpin said that on June 23, 2015, while she was cleaning out Ms. Sullings’ desk, she found the list of deleted boxes that Ms. Sullings had started and left in the drawer. This was a handwritten list of deleted boxes and was not on Ms. Sullings’ computer. Ms. Turpin referred to this list in her June 25, 2015 memo.

[214]      In cross-examination, Mr. Laughlin suggested to Ms. Sullings that various closed files on the closed file list were missing from the virtual boxes to which they ought to have been scanned and saved. Ms. Sullings said she had no idea why the closed files were missing and indicated that much of that was done before she was at the firm. Ms. Sullings said others were doing closed files before she came. Ms. Sullings did not appear to appreciate that files that were closed before she became employed by Laughlin in 2009, were not scanned until 2013 and later, well after she had joined the firm.

[215]      Ms. Sullings also said she had no idea if, how, and why they would be named wrong. Ms. Sullings said she did not take on the scanning function until later. When she was asked at what point she became responsible, she said she could not recall.

[216]      Ms. Sullings said that before her last medical leave beginning in September 2014, there were a number of closed file boxes waiting to be shredded. When she returned on December 1, 2014, they had all been shredded. Ms. Turpin acknowledged that there were a number of closed file boxes waiting to be scanned and shredded and that some of those were done during Ms. Sullings’ absence. However, she said that a number of them remained when Ms. Sullings returned.

[217]      Ms. Sullings also said she was never told it was her duty to oversee the scanning. She testified that when others did the scanning, she assumed they did the process correctly and she did not check to see whether the files had been saved to the appropriate locations on the Z drive before she shredded the contents of the closed file boxes.

[218]      Ms. Sullings also said that she was never told that backup disks needed to be created. Mr. Laughlin testified that on at least two occasions he had told Ms. Sullings that closed files had to be backed up on discs. He recalled telling her when the firm first began digitizing the closed files. However he could not place a timeframe on the second time that he said he told her.

[219]      Ms. Sullings maintained that any files that she scanned and saved were saved into the correct subfolder of the closed file directory on the Z drive. Ms. Sullings said that she was still closing and scanning files on the day that she was dismissed. She denied Ms. Turpin’s assertion that Ms. Sullings had been instructed to stop closing and scanning five days before her dismissal.

1. vi) My findings

[220]      I accept Ms. Sullings’ evidence that she had no idea what happened to the missing closed files. Further, I find that Ms. Sullings was not very conversant when it came to the file closing/scanning/backup/shredding process. She understood the paper aspect of the file closing which initiated the process and the shredding at the end, which was a straightforward task. I find she had difficulty in articulating the steps in between.

[221]      I cannot find as a fact that Ms. Sullings was solely responsible for the errors that caused the files to disappear. I note that a number of the files that were missing from the closed files folders in the virtual box folders on the closed file directory on the Z drive were recovered from the backup disks. Ms. Turpin testified that it was important to “copy and save” to backup disks rather than “cut and paste” as one would do from the scans directory to the closed file directory. A cut-and-paste in making backups would result in files disappearing from the Z drive and being retained on the backup disk only. Ms. Turpin also testified that someone may have thought it was no longer necessary to keep files on the Z drive once the backups were made, because they were old files.

[222]      Even though I cannot find as a fact that Ms. Sullings was the one who caused all of the missing files to disappear from the closed file directory on the Z drive, I accept Mr. Laughlin’s evidence that it was Ms. Sullings’ responsibility to maintain the integrity of the system and therefore to ensure that files have been properly scanned and saved. When describing the process, Ms. Sullings was conversant with how she could access a closed file on the Z drive and therefore, I find that she could have checked to ensure that files had been saved prior to shredding them. However, as Ms. Sullings testified, she did not check because she assumed that whoever was doing the scanning, was doing it right.

[223]      I also accept that, while they highlighted who was likely scanning at different points of the closed file list, Ms. Gushue and Ms. Turpin expressed no conclusions regarding who was responsible for the closed files that went missing. However, and more importantly for what I must decide, I find that Mr. Laughlin was convinced by Ms. Gushue’s and Ms. Turpin’s findings that Ms. Sullings had failed in her responsibilities when it came scanning and saving closed files.

1. g) Incomplete tasks

[224]      The only incomplete task that I have considered is related to the file closing scanning process.

[225]      Ms. Turpin testified that on July 20, 2015 she sent an email asking staff in the office whether they had any files that needed to be closed. As a result, she went from 4 boxes that needed to be closed to 13 boxes that required closing and an additional 24 backed up boxes that required scanning because it was not being done. Ms. Turpin suggested that Ms. Sullings was to be scanning the entire time she was employed with Laughlin and there should never been such a backup. She was only asked to stop scanning and closing due to some issues five working days before her termination.

[226]      While Ms. Sullings denied that she had been told scanning was her job, or that she had been told to stop five days before her dismissal, I find that she must bear some measure of responsibility for the backlog continuing to grow. I accept that there was a backlog when digitization first started because there were numerous physical closed files in physical closed file boxes which needed to be digitized, I also find that Ms. Sullings avoided that work whenever and however she could. As a result, I accept that the continuance of the backlog and its increase was in part due to her reluctance to do the work.

1. h) The Complainant’s issue with Ms. Wallman

[227]      Mr. Laughlin became aware of an issue that arose between Ms. Wallman and Ms. Sullings. Ms. Wallman made a comment about Ms. Sullings’ weight in the context of a discussion about the relative merits of yogurt and kale.

[228]      Ms. Sullings testified that she was tired of Ms. Wallman talking about her weight. She said that she made a harassment complaint against Ms. Wallman to Mr. Laughlin. In her complaint she said, “This is not the first time that [Ms. Wallman] has said something about my weight and I am really getting tired of it. I have brought this to your attention once before. I feel Bullied and feel uncomfortable with [Ms. Wallman’s] comments. My weight has nothing to do with her and I wish that she would keep her opinions to herself.”

[229]      Mr. Laughlin said Ms. Sullings attempted to enlist him in her cause. Mr. Laughlin said that Ms. Wallman was a senior experienced family law assistant with 25 years of experience. He said Ms. Wallman was direct in her approach, but never mean. She was very much into fitness and healthy living. Mr. Laughlin said that he was not present when Ms. Sullings and Ms. Wallman had their interaction and was going by what he was told. He spoke to both of them, but he did not recall whether he had both in his office. Mr. Laughlin refused to participate in the dispute telling both that they should grow up behave as adults and get along with each other. Mr. Laughlin said that he had no time for office politics. He was not going to encourage this kind of behaviour by taking sides.

[230]      In cross-examination, Mr. Laughlin agreed that Ms. Sullings got along with everyone except Ms. Wallman. Ms. Wallman got along with everyone except Ms. Sullings. He said they tolerated each other but there was no open hostility.

[231]      Ms. Wallman admitted that she teased Ms. Sullings about her weight in the lunchroom in a discussion about yogurt. She said that she later apologized because she realized she had hurt Ms. Sullings’ feelings.

[232]      Ms. Howell testified that Ms. Wallman’s direct approach sometimes came across as a bit harsh. She did not recall any incidents between Ms. Wallman and Ms. Sullings that she witnessed. She did say that she heard about one occasion where Ms. Wallman hurt Ms. Sullings’ feelings in the six-year period.

[233]      Ms. Howell testified that she was aware that Ms. Sullings had made a written harassment complaint to Mr. Laughlin. She was not aware of how the matter was ultimately resolved. She was aware that Ms. Wallman made a hurtful comment about Ms. Sullings’ weight in the kitchen area at the office.

[234]      Ms. Sullings also said the Ms. Wallman made a comment about her age. She said Ms. Wallman had said “don’t you think she is too old for the job”. However, Ms. Sullings agreed that Mr. Laughlin never made a comment about her age. Ms. Sullings agreed that it was just the one comment that Ms. Wallman made and that she did not report this comment to Mr. Laughlin. Ms. Wallman denied making this comment.

[235]      Ms. Howell also said that she had heard rumours that Ms. Wallman had said that Ms. Sullings should simply just retire. Ms. Howell said she thought that was based on Ms. Wallman’s view of Ms. Sullings’ work. It was put to Ms. Wallman that she made her comment on the heels of the R. matter. Ms. Wallman testified she did not recall making such a comment.

[236]      Mr. Laughlin denied that he knew or heard Ms. Wallman tell Ms. Sullings that she was faking her health problems. Mr. Laughlin also denied that he knew or heard Ms. Wallman tell Ms. Sullings she was too old for the job. Ms. Wallman denied making both of those comments.

[237]      Ms. Sullings conceded that she had a personality conflict with Ms. Wallman that predated her surgeries.

1. i)   The Dismissal

[238]      Mr. Laughlin testified that Ms. Sullings, like most people, excelled in some areas, but not others. She excelled in her interaction with clients; she was chatty; she was friendly, but the clerical aspect of her job was not her strength. Mr. Laughlin said that Ms. Sullings did not do well with computers, procedures, or anything structured. When she initially started, these duties were a small portion of her receptionist job. As the firm grew, there was a need for systems and procedures to be put in place.

[239]      Mr. Laughlin testified that no one gets fired over a single mistake. They get told that they made a mistake and instructed on what they should have done. Mr. Laughlin said that the same was true with Ms. Sullings. No one incident on its own resulted in her dismissal. However, a number of incidents put together convinced Mr. Laughlin that Ms. Sullings was not performing up to expectations. Mr. Laughlin said he could not be confident of future improvement as a result of which he chose to terminate Ms. Sullings’ employment. Mr. Laughlin said that neither her age nor physical conditions were factors that he considered when making his decision.

[240]      It was put to Mr. Laughlin in cross-examination that the reason Ms. Sullings did not do well with computers was because younger people tend to be more comfortable with computers rather than older people. Mr. Laughlin replied that that was a stereotype and that ability to handle computers had nothing to do with age, but rather turned on exposure and training.

[241]      Mr. Laughlin testified that he prepared the dismissal letter earlier in the day on June 22, 2015. Mr. Laughlin testified that he waited until five o’clock to ensure that the office was essentially cleared out. However, Ms. Turpin, Ms. Gushue, Ms. Howell and Ms. Wallman were still there.

[242]      At 5 p.m. Mr. Laughlin called Ms. Sullings into his office, but, before handing her the dismissal letter, he said he asked for an explanation regarding the missing closed files in the computer system. As far as he was concerned, the computer files showed what they showed and the only issue was how they got that way. Mr. Laughlin said Ms. Sullings denied that there were any problems. He said that after he heard her response he made the decision and gave her the letter. Mr. Laughlin denied in cross-examination that the real reason he dismissed Ms. Sullings was because she had a disability or because of her age.

[243]      Ms. Turpin testified that after Ms. Sullings came out of Mr. Laughlin’s office, she asked Ms. Turpin to join her in Ms. Gushue’s office. She then accused them of being the cause of her dismissal, after which she left.

[244]      Ms. Gushue confirmed that Ms. Sullings came into her office and told her that she just got fired because of her and Ms. Turpin. Then she left. She could not recall on what day that occurred.

[245]      Ms. Sullings said Mr. Laughlin handed her the dismissal letter as soon as she walked through the door. She said he told her that her time at Laughlin had come to an end. Ms. Sullings denied that there was any discussion about problems with the closed file system. She could not recall denying that there were problems.

[246]      Mr. Laughlin denied that he had the dismissal letter in his hand and was waiting to hand it to Ms. Sullings as soon as she walked through the door of the office.

[247]      While Ms. Sullings said there was no discussion about the closed files, she did recall a discussion about her perception that people were picking on her.

[248]      Ms. Sullings testified about her understanding as to what underlay her dismissal. Ms. Sullings testified that, in her view, if there were problems people would blame her. She said that it was convenient to blame her. She felt that she had been made a scapegoat for the difficulties in the office and that somebody had it in for her. She thought that someone was out to get her and that there was a conspiracy against her. She felt that she got blamed whenever problems occurred.

[249]      She agreed that she had a personality conflict with one person – Ms. Wallman, who was part of the alleged conspiracy to get her. She said she had conflict with a couple of others, but nothing too major. She said that Ms. Wallman had a vendetta against her and that it pre-existed her return from her last surgery. Indeed, she agreed that her personality conflict with Ms. Wallman pre-existed any of her surgeries.

[250]      She also agreed that her perceived scapegoating had its roots in the personal difference with Ms. Wallman and she believed that Ms. Wallman played a big part in her dismissal. The reason that she harboured this belief was that she said Mr. Laughlin and Ms. Wallman were close and, according to Ms. Sullings, he listened to her all the time. However, Ms. Sullings conceded that no one else in the office had it out for her.

[251]      Ms. Sullings agreed in cross-examination that her medical disability was addressed and was not an issue at work. In cross-examination, Ms. Sullings also agreed that she was not dismissed due to her physical disability. However, she maintained that Ms. Wallman would bug her about her age and her weight. When it was pointed out to Ms. Sullings in cross-examination that the meeting with Mr. Laughlin was not a meeting with Ms. Wallman, she replied that while that may be the case, Mr. Laughlin and Ms. Wallman were close. Ms. Sullings believed Ms. Wallman had a big part in her dismissal.

[252]      Ms. Sullings said that, sooner or later, something would be found to get rid of her. She had no idea why they were out to get her. She agreed that differences possibly arose from personality conflicts – in particular with Ms. Wallman. She agreed that the two of them did not get along and she thought she was blamed when she should not have been. She also did not believe that she had any personality conflict with anyone else.

[253]      Ms. Sullings agreed that the conflict had nothing to do with medical condition, but was personal to her. She agreed that she had been accommodated and was able to do the work. When asked if age was an issue in her conflict with others, she said that they had more power. She said she was hoping age was not an issue.

VI   SUBMISSIONS

1. a) Sullings

[254]      Ms. Sullings says that there is no requirement to establish a mental element of intention to discriminate. She argues that the discrimination does not have to be the only or sole reason of ground. As long as the dismissal is in part based on prohibited grounds, the Complaint has been established. It is on Laughlin to justify its actions. However, she concedes that Laughlin is not required to prove just cause.

[255]      Ms. Sullings says that employers rarely expressly state they are terminating an employee because of their age or any other protected characteristic. Discrimination based on age can be subtle. The Tribunal must be mindful that discrimination is not a practice which one would expect to be displayed openly.

[256]      Ms. Sullings argues that while she was employed at Laughlin, her main duty was reception, that is, responding to telephone calls, couriers, etc. as indicated by the job title. Her workstation was the reception desk and counter. While closing files was also part of her duties, Ms. Sullings maintains that Laughlin refused to accept that reception was her main duty.

[257]      Ms. Sullings says that from March until November 2009 she performed her duties well. After November 2009 there were no written assessments and Mr. Laughlin agreed that she was an excellent receptionist. Ms. Sullings points out that there are no records relating to her performance in her employee file and no written record of any discipline.

[258]      Ms. Sullings says that the file closing is central to Laughlin’s case, whether for cause or performance issues. She says there was a backlog of files in 2013 because, up to that point, closed files had been stored in paper form in paper boxes. Ms. Sullings argues that Ms. Turpin did not dispute that when she went off on her medical leave in September 2014, there were approximately 30 boxes in the storage room, and another 30 in the vacant office and 12 others in a third office.

[259]      Ms. Sullings says there is some evidence that she received training after the introduction of the electronic storage of closed files. She says that whether she did or not, she did not do much scanning of closed files until her return to work after her fourth surgery in December 2014. Ms. Sullings says that Ms. Gushue testified that Ms. Sullings was not successful with scanning. Ms. Sullings says that she trained Ms. Turpin with reception duties, but others including Ms. Gushue trained her with respect to scanning. Ms. Turpin claimed that Ms. Sullings trained her with respect to scanning, but then said that Ms. Sullings did not know how to do it. She claimed that she and Ms. Sullings jointly created the “how to scan a box” document and saved it for her in her personal folder because she (Ms. Sullings) was confused. Ms. Sullings asserts that Ms. Turpin’s evidence is not credible. Ms. Sullings says that Ms. Turpin continued to do the scanning and there was a division of labour between them, where Ms. Sullings did the closing and shredding, and Ms. Turpin did the scanning.

[260]      Ms. Sullings points out that Mr. Laughlin claimed that Ms. Sullings was trained in the scanning process. He said there was not a lot of training because it was similar to operating the photocopier. Ms. Sullings says it was much more complicated. She notes that Mr. Laughlin said that she was trained several times. She says this evidence must be assessed in the context that she was not strong on computers and in view of her lengthy absences for medical reasons in February through March 2014 and then again September to December 2014.

[261]      Ms. Sullings says that Mr. Laughlin did not conduct any proper investigation of the file closing and scanning issues that he claimed to have relied upon. Ms. Sullings says that Mr. Laughlin testified that a few days before June 22, 2015, someone was looking for a closed file which could not be found. She points out that both Ms. Turpin and Ms. Gushue testified that the incident occurred at the end of May. The missing file expanded into several others. Ms. Sullings notes that Ms. Gushue could not recall why they went deeper and neither of them involved her (Ms. Sullings) in the search for the missing files. Ms. Turpin testified she did not feel she needed to and this is odd particularly given her expressed firm view that Ms. Sullings was responsible for the situation. Ms. Sullings says that a significant amount of time passed before Ms. Turpin and Ms. Gushue told Mr. Laughlin that there was a problem – that thousands of files are not saved and misidentified. He told them that he wanted a full report and to go through the entire Z drive. He said it took them a couple of days. Mr. Laughlin claimed they provided a handwritten summary and later a printout of the closed file list with handwritten notations. Ms. Gushue denied preparing a handwritten summary. Ms. Sullings says that Mr. Laughlin’s assertion that Ms. Turpin and Ms. Gushue were independent investigators defies common sense.

[262]      She says that his testimony that her dismissal is based on non-performance that affected clients outside the office is not credible. She points out that Mr. Laughlin agreed that other people were doing the scanning, but nonetheless held her responsible. Ms. Sullings says that the closed file list with the annotations appears to suggest that many closed files are missing or have been incorrectly named. Ms. Sullings argues that Mr. Laughlin had no personal knowledge of the veracity of the information brought to him by Ms. Turpin and Ms. Gushue, and no personal knowledge or, indeed, any knowledge of when the alleged transgressions occurred. Ms. Sullings says that it is abundantly clear beyond a shadow of a doubt that the closed file list annotated did not show that Ms. Sullings was responsible for the alleged errors, because the list does not contain dates or information with respect to who, and when, closed the files and shredded the closed files. From Mr. Laughlin’s perspective, Ms. Sullings was responsible whether she did the work or not, and regardless that she had been on medical leave.

[263]      Ms. Sullings argues that the annotations on the closed file list done by Ms. Gushue and Ms. Turpin are not corroborated by forms or any other documentation. Ms. Sullings argues that Laughlin failed to produce the Checklist for each closed file. Checklists would disclose who was responsible for closing the file and when the file was closed. Ms. Sullings argues the Tribunal must draw an adverse inference from the failure to disclose and produce the Checklists because the Checklists would identify who did the closing. Ms. Sullings says that there is no evidence that Ms. Turpin or Ms. Gushue reviewed the Checklists for each closed file and reported on it. Finally, Ms. Sullings argues that anyone could access the closed file documents in the Z drive and therefore anybody could change or delete them because there was no password protection.

[264]      Ms. Sullings says if the problem was of the magnitude claimed, it would have manifested itself long before. Ms. Sullings says that before she went off on medical leave in September 2014, she did not do much scanning. She was not comfortable with scanning files. She closed and shredded them. She stated there was a backlog of files to be shredded. When she returned they were all gone.

[265]      Ms. Sullings argues that after her return to work in December, she was mobility impaired and this would impede her ability to use the photocopier/scanner as she would have to move back and forth between reception and the photocopier. This would require standing. She disputes Mr. Laughlin’s contention that she could be scanning while sitting and says it is reasonable to infer that her ability to do scanning after her return to work would be somewhat impaired.

[266]      Ms. Sullings says that with regard to the R. Family Law matter, she was given an envelope containing materials, but there was no note or memorandum on the envelope. She agreed that she had been told by Ms. Turpin, Ms. Aasman and Ms. Wallman afterwards that there was. She denies being told of the importance of serving Mr. R. or having to serve him.

[267]      With regard to the carpet stain, Ms. Sullings says that when Mr. Laughlin directed her to find someone to go to Safeway to rent a steam cleaner, that someone was her and she was subject to accommodation due to her disability and visible mobility problems.

[268]      Ms. Sullings says that Mr. Laughlin’s testimony that he had not made up his mind even though he prepared the dismissal letter is not credible. She says that the manner of her dismissal was harsh and reprehensible and, while he waited until 5 p.m., he never checked to see whether there other employees around in the office.

[269]      She also notes that after being dismissed, Mr. Laughlin sought to pad the reasons for her dismissal. There was a memorandum written by Ms. Turpin which she claimed to have started on her own just a few days after Ms. Sullings’ dismissal and updated from time-to-time. Ms. Sullings argues that Mr. Laughlin’s description of her was disrespectful, patronizing, demeaning, and humiliating, not to say flat-out wrong, and inconsistent with the assertion of performance issues that were the basis for her dismissal. There is no record of performance issues or discipline in her file and if he had had performance issues throughout, he would have likely dismissed her much earlier. Ms. Sullings says that his testimony was simply not credible.

[270]      Ms. Sullings says there is no dispute that Ms. Turpin was younger than her at the material time, that Ms. Sullings was dismissed from her employment as receptionist, and that Ms. Turpin replaced her as receptionist. Ms. Sullings says she has established a prima facie case with respect to age.

[271]      Ms. Sullings argues that when she was off work in February for her third hip surgery, Laughlin hired a much younger female employee to cover her absence. Ms. Turpin was hired on a term contract for the duration of Ms. Sullings’ absence. She was trained by Ms. Sullings with the exception of scanning. Ms. Sullings points out that Ms. Turpin’s qualifications did not include any experience or training as a receptionist in a law firm or otherwise. Ms. Sullings argues that Laughlin assigned duties to Ms. Turpin for which she was not qualified.

[272]      After Ms. Sullings returned from her February surgery sometime in late March or early April, Ms. Turpin left Laughlin and then returned sometime in May/June 2014 on a casual part-time basis doing work that included scanning, shredding and other sundry duties. Ms. Turpin replaced Ms. Sullings when Ms. Sullings went on her medical leave from September to December 2014. Ms. Sullings argues that Mr. Laughlin testified that Ms. Turpin was hired to assist with conveyancing and to be trained by Ms. Gushue. Ms. Sullings says that when she returned, Ms. Turpin would be geared up for the real estate rush in the spring. The firm was not busy and it was a role for her to grow into.

[273]      Ms. Sullings argues that Ms. Turpin’s employee file does not contain any records relating to alleged part-time work nor to the real estate training. There is indeed a lack of records with respect to her employment or contract work – something that would have been simple for Laughlin to show using payroll records. Ms. Turpin on her own testimony was not hired as a permanent employee until January 2015. Ms. Sullings says it makes little sense that she was hired for conveyancing and for her to grow into the role. If that was true, which Ms. Sullings does not accept, she was not confirmed in that role when Ms. Sullings returned on December 1, 2014. Ms. Sullings says that it makes little sense for the firm to put the effort and expense into training Ms. Turpin during the real estate downtime for the anticipated rush and not lock up the employment relationship with her earlier.

[274]      Ms. Sullings argues that Ms. Turpin was worried about her early return to work. She did not want to lose her job because she had no other job to go to. Ms. Sullings says that Ms. Gushue convinced Mr. Laughlin to keep Ms. Turpin on and then, later, to make her a permanent employee as of January 31, 2015. Ms. Sullings argues that Ms. Turpin was cagey, cunning and crafty. She says that Ms. Turpin’s concern was to stay employed and she was attempting to be the bird pushing the other bird out of the nest.

[275]      Ms. Sullings argues that Ms. Gushue and Ms. Turpin were close friends. Ms. Gushue was instrumental in Ms. Turpin’s hiring. Ms. Gushue was also instrumental in having Ms. Turpin stay on in the part-time capacity during the summer of 2014. As well, Ms. Gushue was instrumental in having Ms. Turpin become a permanent employee at the end of January 2015.

[276]      Ms. Sullings says that she had numerous medical conditions and health problems including depression. Ms. Sullings says that when she returned to work on December 1, 2014 she was visibly disabled and mobility impaired using first two crutches, then one crutch, and then a cane and braces. She was limping. She says Mr. Laughlin was aware of her medical problems including the numbness in her left leg.

[277]      With regard to her disability, Ms. Sullings points out that her return to work was delayed from early November to December because Ms. Turpin was working. Mr. Laughlin required a medical clearance for the first time. He put a job description in place for her. He prepared a job description without consulting her. She received a cold reception after her return. She told other employees that Laughlin did not want her back and wanted to fire her. Ms. Turpin stayed on with Laughlin and became a full-time employee at the end of January 2015.

[278]      She notes that Mr. Laughlin did not require any medical clearance prior to allowing her to return after the first three surgeries. After the September to December 2014 absence, Mr. Laughlin required a medical clearance for return to work. He also required her doctor to set out limitations in her ability to perform the duties. He presented her with a job description that was developed by Ms. Gushue and Ms. Aasman in November 2014 while Ms. Sullings was away on medical leave. The new job description expressly included scanning. Ms. Sullings was not consulted. While in her complaint Ms. Sullings stated that she had never had a job description before, she did not mean that she did not have job duties. What she meant was that her job duties had never been set out in a Laughlin and Company document although they were broadly and very generally set out in the Sante agreements.

[279]      Ms. Sullings concedes that Laughlin accommodated her as her doctor had requested. She concedes that she remained on accommodation until her dismissal.

[280]      At the time of her return, Ms. Sullings told other employees that Mr. Laughlin intended to get rid of her. She argues that her lengthy absences were not convenient for the firm. She says that Mr. Laughlin was not pleased to see her return to work and was cold towards her. He continued to be cold. He did not welcome her back and she said she felt like she did not exist. She said that Mr. Laughlin unilaterally changed her hours of work from 8:30 a.m. to 4:30 p.m. to 9 a.m. to 5 p.m.

[281]      Ms. Sullings says that the staff was not happy about having to pick up some of her duties. She argues that other staff helped her with heavy boxes and served coffee, but they were frustrated with having to pick up the slack.

[282]      She notes that Mr. Einarsson said they were complaining that Ms. Sullings was not pulling her weight. Ms. Wallman made comments about people claiming medical problems and faking them, that she should retire, and that she was too old for her job. Ms. Wallman used to bug her about her age and Mr. Laughlin dismissed those concerns when she reported that to him. Ms. Wallman noticed that people were frustrated because Ms. Sullings was frustrating to work with. Ms. Sullings notes that Mr. Laughlin admitted that the backlog frustrated other staff because in addition to their own duties, they would take on closing files. Files were coming in faster than going out. Ms. Sullings says that there was necessarily a backlog when the scanning process was introduced that cannot be blamed on her.

[283]      Ms. Sullings argues out that in March 2014, when Mr. Laughlin berated her in front of a client for having erred in booking an appointment without his approval, Mr. Laughlin just did not bother to look in his calendar. She points out there was no discipline recorded in her employee file with respect to this incident.

[284]      Ms. Sullings points out that Mr. Laughlin placed Ms. Turpin in her position after her dismissal. She says that was the reason why Laughlin kept Ms. Turpin on after Ms. Sullings returned to work. Ms. Sullings denies the veracity of Mr. Laughlin’s allegations against her and says they are entirely without merit. She points out that Mr. Laughlin did not conduct a proper investigation of the file closing and scanning issues on which he relied. She notes that a number of people performed the scanning function and, accordingly, she cannot be blamed for all those issues. She notes that Mr. Laughlin testified that if other people were doing the scanning, she was still responsible and if she could talk other people into doing it more power to her. Ms. Sullings says that from his perspective it was very simple, scanning was part of her job, and, therefore, she was responsible.

[285]      Ms. Sullings argues that the performance issues are really a red herring and not material to the decision that Mr. Laughlin made. Ms. Sullings does not accept that she misconducted herself. She says she tried to do her duties to the best of her abilities. Ms. Sullings notes that whatever training she received in scanning, scanning was not her forte, she was not very good at it, not very successful, and not keen on it. She did not like it. It was difficult for her to move from reception to the scanner and, in particular, to deal with the files that got jammed.

[286]      She argues that the real straw that broke the camel’s back was her fourth absence from September to December 2014. She returned to work with a need for accommodation. Other people had to pick up the slack and that generated unhappiness in the firm. Ms. Sullings believed that Ms. Turpin was a friend of Ms. Gushue and that she was not qualified for the job for which she was hired.

[287]      Ms. Sullings argues that Mr. Laughlin favoured Ms. Wallman because Ms. Sullings was not like Ms. Wallman. Ms. Wallman was fit and into healthy living; she was direct. On the other hand, according to Ms. Sullings, Mr. Laughlin thought Ms. Sullings was emotionally driven, did not do well with systems and was obviously unfit and mobility impaired.

[288]      Ms. Sullings says that Mr. Laughlin did not appreciate the things she did around the office, and noted them to be petty and ridiculous pursuits such as naming fish or organizing birthday parties. Ms. Sullings says that Mr. Laughlin favoured Ms. Wallman in the complaint related to her weight and thus her medical condition. She notes that Mr. Laughlin thought that Ms. Sullings sought to enlist him on her side in a dispute having to do with whether kale was better than yogurt and that Ms. Sullings was more concerned with interpersonal matters rather than life-changing effects on clients.

1. b) Laughlin

[289]      Mr. Laughlin argues that, in November 2014, Ms. Sullings contacted him to discuss returning to her duties ahead of the anticipated January 1, 2015 date. Mr. Laughlin required Ms. Sullings to obtain confirmation from her doctor that she was indeed able to return to work so soon after her operation. Mr. Laughlin caused a detailed description of Ms. Sullings’ job duties to be drafted and gave a copy to Ms. Sullings to review with her physician. Although the job description was considerably more detailed than the summary provided to Sante in 2009, Ms. Sullings had the opportunity to review it and at the time did not indicate that it was in any way inaccurate. Ms. Gushue testified that she believed the job description document accurately reflected Ms. Sullings’ duties

[290]      Ms. Sullings returned to work on December 1, 2014 and Mr. Laughlin accommodated the restrictions set out in her physician’s letter.

[291]      Mr. Laughlin argues that Ms. Sullings had difficulties with certain clerical aspects of her job, namely attention to detail, following office procedures, and taking direction. Nothing serious had come from the shortcomings in the past, but that situation changed after her return to work in December 2014.

[292]      Mr. Laughlin notes that in support of the allegation that Laughlin had it in for her from the time of her return from her surgery, Ms. Sullings said that Mr. Laughlin was cold. She was unable to point to any other evidence in this respect relating to Laughlin. Mr. Laughlin notes that Ms. Sullings felt her job was in jeopardy and mentioned this to other employees including Mr. Einarsson, a senior associate. Mr. Laughlin says there were a number of performance-related issues during the winter and spring of 2015. Mr. Laughlin argues that, in March 2015, Ms. Sullings refused to comply with office procedures regarding the booking of appointments. In May 2015, Ms. Sullings seriously mishandled and refused to follow directions regarding effecting service on an opposing party in the Family Law matter. The third culminating incident which resulted in Ms. Sullings’ dismissal was the discovery of significant problems with the integrity of the firm’s digital data storage system. When the system was examined, it was discovered upwards of a thousand files had not been properly scanned or scanned at all. Some files were recovered, but over 300 were remaining unrecovered. When Mr. Laughlin prepared the dismissal letter, he nonetheless gave Ms. Sullings an opportunity to respond to these findings. Laughlin argues that Ms. Sullings refused to take ownership of the mistake and refused to acknowledge the fact that files were missing.

[293]      Mr. Laughlin argues it is axiomatic that a respondent cannot be called upon to prove a negative. It is for this reason that the replacement by a younger person alone is not sufficient to demonstrate age discrimination. If that were the case, people of advanced age would over time be given an exemption from all requirements of job performance that apply to anyone else. Rather, the existence of a younger replacement for a complainant should be viewed as being sufficient to justify an inquiry into the possible existence of discrimination. It is far from conclusive. Upon a respondent demonstrating valid reasons for replacement by a younger person, the Tribunal is called upon to weigh the totality of the evidence to determine whether age and similarly, disability, was a factor contributing to the adverse impact suffered by a complainant.

[294]      Mr. Laughlin submits that in Price v. Topline Roofing, 2013 BCHRT 306 (CanLII), at para. 70, the Tribunal said that the complainant bears the burden of establishing a prima facie case of discrimination on the balance of probabilities. To establish a prima facie case of discrimination under s. 13(1) of the Code, the complainant must establish a protected ground (in that case age), that he suffered an adverse treatment in employment, and that it is reasonable to infer from the evidence that his age was a factor in the adverse treatment: Armstrong v. British Columbia (Ministry of Health),2010 BCCA 56 (CanLII), and Health Employers Association of British Columbia v. BCNU, 2006 BCCA 57 (CanLII) at para. 38. In rejecting the employer’s claim of proper grounds for termination in Price, the Tribunal noted the grounds appear to have been arrived at after Mr. Price’s termination and that, until his termination, all indications were that he was a good employee. This is in contrast with the present case where Ms. Sullings was repeatedly advised of her work shortcomings and advised that her employment was in peril.

[295]      Mr. Laughlin argues that the only evidence in support of Ms. Sullings’ allegation of discrimination on the basis of age was her statement that a co-worker, Ms. Wallman, with no authority over hiring, made a remark once in a nine-year time span that she should consider retiring. There is no evidence that Mr. Laughlin ever took any notice of her age in his decision to terminate her employment. Mr. Laughlin submits that an off-hand remark by a person with no authority or decision-making ability should be viewed as just that: an off-hand remark with no significance.

[296]      Mr. Laughlin argues that there is massive evidence pointing to other reasons for Ms. Sullings’ dismissal, all of which has been extensively canvassed. Ms. Sullings was aware of these issues prior to her termination and they were listed with some particularity in the dismissal letter. Mr. Laughlin went so far as to explain the thought process behind his decision and his realistic assessment of the likelihood of improvement. Mr. Laughlin submits that Ms. Sullings failed to establish a prima facie case of age discrimination.

[297]      Mr. Laughlin says that Ms. Sullings was fully accommodated upon her return from her fourth surgery and notes that discrimination is not alleged prior to her return in December 2014. She admits that she did not feel discriminated against with respect to disability.

[298]      Notwithstanding Ms. Sullings’ subjective impressions, it is clear from the evidence that Laughlin took measures to ensure that she could be properly accommodated upon her return in December 2014. These included providing a comprehensive job description for Ms. Sullings to review with her doctor, and upon receipt of the doctor’s opinion as to her ability, permitting her to return to work before scheduling and implementing procedures that recognized her physical limitations. The evidence is that more physically demanding tasks that Ms. Sullings had previously done, were now undertaken by coworkers. Ms. Sullings is unable to point to any example of her physical limitations being raised as an issue. Indeed, the bulk of the evidence is that her coworkers pitched in and were happy to help her.

[299]      The grounds for Ms. Sullings’ dismissal were unrelated to her physical disability even in the most indirect sense. As already indicated, Ms. Sullings’ work performance issues were made clear to her at the time of the infractions. There is no evidence of physical disability being a factor in Ms. Sullings’ termination prior to being raised within the context of this Complaint.

1. c)   Sullings’ reply

[300]      Ms. Sullings argues that, in this case, her younger replacement was highlighting the perceived deficiencies of the older incumbent. The younger person was more energetic, more computer savvy, thus highlighting Ms. Sullings’ shortcomings. It is permissible for an employee to be dismissed for performance issues and a person’s age or disability does not shield them from the vagaries of business. Here, Ms. Sullings says that when Ms. Turpin was hired, the hiring process was highly suspect, and there was not even a résumé provided to Mr. Laughlin. There was nothing that apparently rendered her an obvious candidate for the reception position. Ms. Sullings says that her subsequently stepping in as a replacement in the reception position a year and a half later following Ms. Sullings’ dismissal is tainted by the initial hiring.

[301]      Ms. Sullings says that the performance issues in this case were not of the magnitude suggested by Laughlin. She agrees she made mistakes regarding the appointment and the R. Family Law matter. With regard to the scanning issue, there is no evidence that the missing files were her fault. She points to the frustration of coworkers with regard to her, including Mr. Laughlin and Mr. Einarsson.

VII     ANALYSIS AND DECISION

[302]      As already noted, the fact that Ms. Sullings exhibits protected characteristics and that she suffered an adverse impact is not in dispute.

[303]      Ms. Sullings noted in her evidence and in her argument that she suffers from depression. Ms. Wallman testified that Mr. Laughlin was reluctant to dismiss Ms. Sullings at an earlier date for alleged misconduct, because it had been reported that she might kill herself if she lost her job. Ms. Wallman was surprised that Ms. Sullings had not been sent for a psychiatric evaluation. However, the Complaint was grounded in physical disability and no complaint of mental disability was made by Ms. Sullings. The references to depression were raised in argument only in relation to remedy. Further, Mr. Laughlin was not made aware that she suffered from depression. Nor was there any reference to depression in the physician’s note respecting what duties Ms. Sullings could or could not perform upon her return to work on December 1, 2014. Finally, the medical notes provided by Ms. Sullings respecting her depression post-date her dismissal. I find that depression as a mental disability is not a factor in play in this particular case as it relates to Ms. Sullings’ dismissal from employment.

[304]      The question which I must answer is whether Ms. Sullings’ age and/or physical disability was a factor in her dismissal from employment. This is the nexus element in the Moore test: Moore v. British Columbia, 2012 SCC 61 (CanLII).

[305]      I agree with Ms. Sullings that intent is not required to establish the nexus element. As the Court said in University of British Columbia v. Kelly, 2016 BCCA 271 (CanLII), at para. 24:

I would add to these reasons the following observations. Discrimination is not contrary to the Code unless a distinction that has been found prima facie discriminatory is not justified. There is no requirement to establish a mental element, a guilty mind, or an intention to discriminate at the third step of the prima facie discrimination test.

[306]      I also agree with Ms. Sullings that employers rarely advertise their misdeeds.

… As submitted by Mr. Rozario, it is the rare case where an employer expressly states that they are terminating an employee because of their age, or any other protected characteristic. In my view, as with race-based discrimination, discrimination based on age can be subtle. I find the Tribunal’s comments in Mezghrani v. Canada Youth Orange Network (CYONI) (No. 2), 2006 BCHRT 60 (CanLII), also applicable to age-based discrimination. In Mezghrani the Tribunal stated:

In approaching this task, I am mindful of the fact that “discrimination is not a practice which one would expect to be displayed openly”: Basi v. Canadian National Railway Co. (1988), 9 C.H.R.R. D/5029 (C.H.R.T.) at para. 38481. In particular, discrimination on the basis of race is frequently subtle. Direct evidence of racial discrimination is rarely available, and such discrimination must often be inferred from the conduct in issue. Those observations were made in Basi, which was written nearly 20 years ago. Given the progress in Canadian society in that time period, in which overt racism has become even less acceptable, it is likely that racial discrimination has become even more subtle. In many cases, the “subtle scent of racism” may have become very hard to detect. That said, in order for a finding of racial discrimination to be possible, there must still be some evidence from which such discrimination could be inferred. (para. 28)

Rozario v. The Manufacturers Life Insurance, 2017 BCHRT 4 (CanLII), at para. 21, (emphasis added)

[307]      I agree with Mr. Laughlin that when an older person is dismissed from employment and is replaced by a younger person, at the very least that may be cause for an inquiry. I would add that absent any explanation, or where the explanation is not supported by evidence, that may be enough to support an inference that age was a factor in the dismissal, particularly keeping in mind that the protected characteristic need only be a factor, not the sole or even primary factor. I also agree with Mr. Laughlin that when an explanation supported by evidence is put forward, then the task of the Tribunal is to weigh the totality of the evidence.

[308]      In Vestad v. Seashell Ventures Inc., 2001 BCHRT 38 (CanLII), the Tribunal said at para. 44:

… The applicable test is that “an inference of discrimination may be drawn where the evidence offered in support of it renders such an inference more probable than the other possible inferences or hypotheses”: Béatrice Vizkelety, Proving Discrimination in Canada(Toronto: Carswell, 1987) at 142; Magee v. Warner Lambert Canada Inc. (1990), 12 C.H.R.R. D/208 (B.C.C.H.R.) at paras. 37-38; Roper v. Jace Holdings Ltd. (1993), 22 C.H.R.R. D/294 (B.C.C.H.R.) at para. 39; 11 McKinnon v. Ontario (Ministry of Correctional Services) (No. 3) (1998), 32 C.H.R.R. D/1 (Ont. Bd. Inq.) at paras. 313-315.

[309]      As a result, I must reach my conclusions based on inferences drawn from the whole of the evidence before me. Therefore, the question before me is whether I can reasonably infer from the circumstances of this case that Ms. Sullings’ age and/or disability was a factor in her dismissal from employment.

[310]      Ms. Sullings presented her case in a manner indicative of a wrongful dismissal or just cause case under a collective agreement. While Ms. Sullings conceded in argument that an employer is not obligated to establish cause for dismissal, her approach rests on the premise that if there was no cause or if the cause appears trumped up, then I must draw the inference that her protected characteristics of age and disability were factors in her dismissal.

[311]      As a result, Ms. Sullings argued, among other things, that there were no written warnings or written discipline placed on her employee file. I agree with Ms. Sullings that in circumstances where cause for dismissal is alleged after the dismissal has taken place and there is no record of progressive discipline on the employee file, lack of a record may lay the groundwork for an inference that a protected ground was a factor. Whether or not there is a written record of discipline may be a relevant consideration in assessing whether a termination of employment is discriminatory: Price v. Top Line Roofing, 2013 BCHRT 306 (CanLII), at para. 76.

[312]      However, Mr. Laughlin points out that Ms. Sullings, unlike Mr. Price, knew her job was in jeopardy and mentioned that to other employees including Mr. Einarsson, a Senior Associate. While Ms. Sullings argued that she mentioned to other employees that Mr. Laughlin was trying to get rid of her, I prefer the evidence of Mr. Einarsson that what she was actually saying was that she was fearful that her job was in jeopardy and that she could be fired.

[313]      The fact that Mr. Laughlin did not observe the niceties of papering the employee file does not lead to an inference that the Code was breached in the circumstances of this case. That is because Ms. Sullings conceded that she had been warned and that she knew that her employment was in jeopardy both after the appointment incident and the R. Family Law matter. I find that concession consistent with the evidence of Mr. Einarsson and Mr. Laughlin. Consequently, the fact that there was no written record on her employee file is of little assistance to her in the face of her admission.

[314]      Ms. Sullings argues that Mr. Laughlin refused to accept that reception was her main duty and that scanning and closing files was a secondary duty. The problem with that argument is that Mr. Laughlin is the boss and he does not have to accept Ms. Sullings’ view of her duties. Ms. Sullings’ difficulty in this case is that she refused to acknowledge that scanning – the digital preservation of closed files – was a significant and important part of her responsibilities.

[315]      Based on all of the evidence, I find that scanning was the straw that broke the camel’s back, not as Ms. Sullings’ contends, her fourth absence. Indeed, Ms. Sullings agreed in her argument that the file closing process is central to Mr. Laughlin’s case that she was dismissed for cause or for performance issues.

[316]      Ms. Sullings says that Ms. Turpin did not dispute that when she went off on medical leave in September 2014 there were some 72 boxes about the office waiting to be scanned and/or shredded. While this may be true, Ms. Turpin did dispute that all of those boxes had been shredded by the time Ms. Sullings returned in December. Ms. Turpin testified that a number had been scanned and shredded, but many still remained.

[317]      Ms. Sullings argues that she did not participate in training Ms. Turpin in the scanning process. However, I prefer Ms. Turpin’s evidence that Ms. Sullings participated in that training because Ms. Turpin recalled that Ms. Sullings referred to a “cheat” sheet that she used when she did the scanning. It is undisputed that Ms. Sullings had received some training herself when the digital preservation process was first introduced.

[318]      Ms. Sullings says that Mr. Laughlin’s description of scanning being like photocopying is erroneous. She says that it is much more complicated. I agree with Ms. Sullings that the whole digital preservation process, or scanning in the broad sense, is more complicated than simply feeding documents into the photocopier and pushing the scan button. However, the rest of that process, apart from the physical scanning at the photocopier, was something that was done on the desktop computer by accessing the Z drive. The steps were laid out on a document that Ms. Sullings had in the binder at reception and were subsequently laid out in the December 11 Document put together by Ms. Turpin in the presence of Ms. Sullings.

[319]      Ms. Sullings notes that Mr. Laughlin did not require any medical clearance prior to her return after the first three hip surgeries. However, the evidence shows that the first two surgeries were back to back and she did not return to work in between them. Further, Ms. Sullings submitted a copy of a letter from her doctor clearing her to return to work following that second surgery in September 2011. Finally, the issue in November 2014 was that Ms. Sullings wanted to return early – before the anticipated date of return. I am not prepared to draw an adverse inference against Mr. Laughlin for being cautious in those circumstances, particularly when the termination of employment occurred several months later.

[320]      Ms. Sullings argues that other employees in the office were frustrated at having to pick up the slack because she could not do certain things as a result of the limitations and restrictions set out by her physician in his letter. However, the evidence was that the employees were not frustrated with her condition, but were frustrated with the fact that files are not being closed and scanned quicker than files coming in. As a result, a backlog was continuing to grow. Mr. Einarsson testified that he had some concerns with Ms. Sullings’ photocopying, and Ms. Wallman said there was a delay in Ms. Sullings’ typing some agreements, but these were not matters brought to Mr. Laughlin’s attention.

[321]      Ms. Sullings argues that her disability impeded her ability to do scanning. She says that scanning would require her to stand at the photocopier and she disputes Mr. Laughlin’s contention that she could be scanning while sitting. I agree with Ms. Sullings that the actual physical act of scanning, that is, taking the disassembled closed paper file and feeding the documents into the feeder and pressing the scan button on the photocopier would require her to get up, walk over to the photocopier and stand for a couple of minutes.

[322]      However, I note that Ms. Sullings said that she was restricted from prolonged standing which, in her view, was in excess of 15 minutes. She also testified that she was able to do the work assigned to her. As I already noted, scanning in the broad sense, which required the creation of a closed box folder in the closed file directory on the Z drive, and the creation of a closed file subfolder in that box on the Z drive, the transfer of the scanned documents from the scans directory into the closed file directory on the Z drive where the new folders had been created, is done from the desktop computer while in the seated position.

[323]      Consequently, as I noted before, the parties in this hearing referred to scanning as both in the broader sense of the digitization procedure, and as descriptive of the actual physical act of feeding the documents into the photocopier. I find that when Mr. Laughlin spoke about scanning being done from a seated position he was referring to it in the broader sense. On the other hand, when Ms. Sullings contended that her physical disability would interfere with scanning, that was in reference to the narrow use of the word.

[324]      Mr. Laughlin points out that Ms. Sullings had the opportunity to review the job description that was prepared in November 2014 and she did not challenge its accuracy at the time. Ms. Gushue testified that she believed the job description accurately reflected Ms. Sullings’ duties. Scanning was part of the described duties.

[325]      Ms. Sullings contends that when she testified that her job duties had never been set out in a job description before November 2014 she meant that it they had never been set out in a Laughlin document. She conceded they were briefly set out in the reports to Sante. While that may be the case, I find it makes little difference as Ms. Sullings knew what her job was. The evidence was that she maintained a binder or a book at reception setting out all of her duties, including a document that laid out the scanning process (the December 3 Document).

[326]      I find that the important point here is that the limitations and restrictions set out by Ms. Sullings’ physician were honoured and Ms. Sullings was fully accommodated. She testified that she required no other accommodation. She also testified that she was able to do the work that was required of her.

[327]      I am not persuaded that Ms. Sullings’ disability posed a barrier to her performing the scanning function, with the exception of actually bringing the closed file boxes to her desk to be disassembled for scanning. I find that the only part of the file closing, scanning, and shredding process that Ms. Sullings could not do due to her disability, was to bring up the closed file boxes. Mr. Laughlin also argues that the more physically demanding tasks of Ms. Sullings’ position were done by other employees who were happy to assist. I am satisfied that others were more than willing to do the heavy lifting in order to help Ms. Sullings. I am also satisfied that if the copier jammed, Ms. Gushue, whose office was nearby, was also willing to and did assist Ms. Sullings by clearing the jam.

[328]      Ms. Sullings testified that she told other employees that Mr. Laughlin intended to get rid of her. I find that is self-serving evidence. The fact that she was repeating her perception does not make it so; nor does it validate her perception.

[329]      Ms. Sullings argues that Mr. Laughlin favoured Ms. Wallman because Ms. Sullings was not like Ms. Wallman. She points out that Mr. Laughlin testified that Ms. Wallman was fit, into healthy living, and was direct. On the other hand, Ms. Sullings says he described her as an emotionally-driven person who did not do well with clerical functions and systems. Ms. Sullings says she was obviously mobility impaired. Ms. Sullings also says that Mr. Laughlin did not appreciate the little things she did around the office such as naming the fish or organizing birthday parties.

[330]      Ms. Sullings says that Mr. Laughlin’s description of her was disrespectful, patronizing, demeaning, and humiliating, not to say flat-out wrong and inconsistent with the assertion of performance issues that were the basis for her dismissal. I cannot find, on the evidence, that Mr. Laughlin favoured Ms. Wallman. Mr. Laughlin’s other witnesses testified giving similar impressions of Ms. Sullings.

[331]      While I do find that Mr. Laughlin’s description of Ms. Sullings may be considered as somewhat patronizing, I also find that what Mr. Laughlin was attempting to convey was that Ms. Sullings’ skillset was better-suited to interpersonal contact such as receiving clients and handling the telephones, but was not so suited to executing clerical duties. Ms. Sullings concedes that she was not comfortable with scanning files. She also concedes that despite whatever training she received in scanning, scanning was not her forte, she was not very good at it, not very successful and not keen on it. In short, she did not like it. Her evidence was that she saw “reception” as the job title implies, to be her main job. In short, I find her evidence consistent with Mr. Laughlin’s characterization, although Mr. Laughlin could have been more circumspect in his choice of descriptors.

[332]      While Ms. Sullings suggested to Mr. Laughlin that her discomfort, particularly with computers, was a characteristic of her age, I agree with Mr. Laughlin, that it was a product of exposure, or more accurately, a lack of exposure. It is undisputed that Ms. Sullings did only some scanning prior to her return on December 1, 2014. Ms. Sullings testified that she did the closing and shredding, while others helped with the scanning. She conceded that she could have refused the help, but did not. It is also undisputed that scanning was not the job of the lawyers or legal assistants. It was part of the closing process which began with closing and ended with shredding. I am persuaded that it was an integral part of the receptionist’s duties. The fact that Ms. Sullings chose to limit her duties to closing and shredding and to do as little as possible when it came to scanning, did not increase her exposure and did not help overcome any discomfort she harboured. The adage “use it or lose it” has some grounding in reality.

[333]      As to Ms. Sullings’ complaint that Mr. Laughlin did not appreciate the little things she did around the office such as organizing birthday parties or naming the fish in the fish tank, Mr. Laughlin is the boss and he gets to set the relative value on the duties being performed by his employees. The fact that he does not place much value on the little things does not support an inference of discriminatory conduct and does not overcome the burden that Ms. Sullings must meet in this case.

[334]      Ms. Sullings argues that Mr. Laughlin failed to conduct a proper investigation of the scanning issues upon which he relied in her dismissal. She says that Ms. Gushue and Ms. Turpin were not independent investigators. In cross-examining Mr. Laughlin, it was put to him that they were not trained in investigation and were not information technologists. However, I find that Ms. Gushue and Ms. Turpin were tasked with identifying the scope of the closed file problem. I further find that all that was required, as Ms. Turpin testified, was to open each closed box folder on the Z drive, to see what subfolders it contained, and then to open each subfolder to see what documents were had been scanned and saved. I find this process did not require the expertise of an information technologist.

[335]      Ms. Sullings also argues that Mr. Laughlin failed to disclose and produce the Checklists because the Checklists would identify who did the closing. I agree with Ms. Sullings that the Checklist would identify who did the closing. I also note that Ms. Sullings testified that doing the closing was a job she was familiar with and did along almost from the beginning of her work with Laughlin. The point that Ms. Sullings misses in her argument is that the Checklist would not identify who actually did the scanning. The evidence was that the person who did the closing and filled out the Checklist was not necessarily the person who did the scanning.

[336]      Ms. Sullings contended in cross-examining Ms. Turpin that there was no way Ms. Turpin could identify the particular dates on which documents were scanned and saved in order to ascertain and support her annotations as to when she was doing the scanning. Ms. Turpin’s reply was that when the documents were saved, a date was affixed by the computer and would be available for viewing when the closed box folder and close file subfolder were accessed on the computer. Notably, problems in the closed file directory were found at a time when Ms. Sullings admits she was scanning after having been trained by Ms. Turpin, according to Ms. Sullings, in or around March of 2015.

[337]      Ms. Sullings notes that from Mr. Laughlin’s point of view, whether she actually caused the closed files to disappear or not, she was responsible because it was part of her duties. She notes that some of the files might have disappeared when she was on medical leave and she could not be held responsible. As I noted in the evidence, Ms. Sullings was conversant with how to access the files that had been scanned and saved in the closed file directory on the Z drive. It is undisputed that just before her dismissal she herself had started compiling a list of missing closed files which is consistent with knowing where to look in the Z drive. The problem is that Ms. Sullings simply assumed that others who did the scanning were doing it correctly. She did not check the closed file directory to see if files had been properly saved. As a result, I find there is a basis for Mr. Laughlin to take the position that Ms. Sullings was responsible as she ought to have checked before taking the irreversible step of shredding the files.

[338]      With regard to the R. Family Law matter, Ms. Sullings says that she was given an envelope containing materials, but there was no note or memo on the envelope. She denied that she was told about the importance of serving Mr. R. She agreed that she was subsequently told by Ms. Turpin, Ms. Aasman and Ms. Wallman that there had been a memo.

[339]      In regard to this item, I find that the important aspect is that Ms. Sullings was made well aware subsequently, that her job was in jeopardy. Whether this was fair or not, is not something that I need to decide. Whether this would stand up in a wrongful dismissal action is also something I need not decide.

[340]      With regard to the carpet stain, Ms. Sullings argues that when Mr. Laughlin told her to find someone to go to Safeway to rent a steam cleaner, she assumed that someone was her, and she could not do it because she was under an accommodation due to her disability and visible mobility problems. However, her evidence was that she was still in the process of getting estimates which she was going to present to Mr. Laughlin on the day that she was dismissed from employment. That evidence is inconsistent with her contention that she thought she was being directed to go to Safeway. I further note that Mr. Laughlin did not rely on this item in the course of his argument.

[341]      Mr. Laughlin argues that Ms. Sullings was unable to point to any evidence with respect to him to support the notion that he was trying to get rid of her,other than her perception that he was cold. Mr. Laughlin argues that the fact that a younger person was hired alone is insufficient to demonstrate age discrimination. He notes that in the case of Ms. Sullings and her age, anyone who would be hired subsequently is likely to be younger. He does concede that the hiring of a younger person as a replacement should be viewed as sufficient to justify an inquiry into possible existence of discrimination, but alone it is far from conclusive. It requires the Tribunal to weigh the totality of the evidence to determine whether age, and also similarly disability, was a factor contributing to the adverse impact.

[342]      Ms. Sullings argues that Ms. Turpin was a younger, more energetic, and a more computer savvy person who highlighted Ms. Sullings’ deficiencies. Ms. Sullings concedes that it is permissible for someone to be dismissed for performance issues and that age and disability is not a shield. Ms. Sullings says that Ms. Turpin’s hiring process was highly suspect in that she had not even given a résumé to Mr. Laughlin. She was not an obvious candidate for the reception position and her subsequent stepping in as a replacement on a permanent basis at reception following Ms. Sullings dismissal is tainted by the initial hiring. Ms. Sullings also argues that Ms. Turpin was cagey, crafty, and cunning in giving her evidence.

[343]      Ms. Sullings attacks Ms. Turpin’s qualifications to be a receptionist. Her theory appears to be that Ms. Turpin was hired without any obvious qualifications solely because she was young. As a result, Ms. Sullings says that when Ms. Turpin ultimately replaced her after her dismissal, the circumstances of her hiring tainted that replacement. I find that is an unsupportable stretch that runs counter to the evidence. The evidence was that Ms. Gushue and Ms. Aasman did obtain and review Ms. Turpin’s résumé. I note that, among other things, Ms. Turpin had experience with Excel and Word programs on computer. I also note that by the time Ms. Turpin replaced Ms. Sullings following her dismissal, Ms. Turpin had at least one-half year in the receptionist’s job and additional time in doing the scanning function when assisting Ms. Sullings. I also note that when Ms. Sullings was initially hired, she too had no experience as a receptionist.

[344]      Ms. Sullings also argues that Mr. Laughlin’s position, that Ms. Turpin was brought back on a part-time basis in the summer of 2014 and kept on after December 1, 2014 to assist Ms. Gushue, does not make any sense. She says that if Mr. Laughlin was going to expend time and resources on training Ms. Turpin in the position of junior conveyancer, he would have locked up her employment much sooner than the end of January 2015. I find Mr. Laughlin’s explanation both reasonable and rational. It is supported by Ms. Gushue’s evidence regarding her needs in conveyancing.

[345]      I pointed out to Ms. Sullings in the hearing that even if she was correct about Ms. Turpin and Ms. Gushue conspiring to get her dismissed so that Ms. Turpin could have the receptionist job, that would make Ms. Turpin and Ms. Gushue not very nice people, but would not necessarily establish a breach of the Code. I note, however, that Ms. Turpin already had a job with Laughlin. Ms. Turpin testified that she was quite happy where she was and was not looking for Ms. Sullings’ job. While it made sense for Ms. Turpin to step into the receptionist job given how events unfolded, the evidence was that Laughlin subsequently had to find and hire another junior conveyancer to replace Ms. Turpin.

[346]      In her evidence, Ms. Sullings also contended that her dismissal was a result of a conspiracy driven by the personality conflict which she had with Ms. Wallman. She tied Ms. Wallman’s comments about her weight as going to her disability, and Ms. Wallman’s comments about retirement as going to her age, and on the basis of her assertion that Ms. Wallman and Mr. Laughlin were close, she argues that Mr. Laughlin adopted Ms. Wallman’s views and therefore, age and disability were factors in her dismissal.

[347]      Mr. Laughlin points out that the only remark Ms. Wallman made once in the full time that she and Ms. Sullings worked together concerned a comment that Ms. Sullings should consider retiring. That is a remark of which he was unaware and that it should be considered as an offhand remark by a person with no authority or decision-making ability. It is inconclusive and immaterial.

[348]      Ms. Wallman denied making any discriminatory remarks. She did not recall making the comment about retirement. In any event, none of this was brought to Mr. Laughlin’s attention and therefore could not figure in his decision. While Ms. Sullings argues that she was tired of Ms. Wallman bugging her about her age and weight, the written complaint to Mr. Laughlin mentioned only her weight.

[349]      In Furtado v. Cold Logic and another, 2012 BCHRT 227 (CanLII), the Tribunal noted that:

Mr. Furtado’s only allegation in respect of age is that a co-worker asked him how old he was and allegedly verbally abused him. The co-worker, Mr. Pass, deposes that he recalls a conversation on October 18, during an orientation session, when Mr. Furtado told him he was fifty-three. Mr. Pass did not hold a position which had the authority to terminate Mr. Furtado. There is no evidence he had any role in that decision. (para. 37)

[350]      I am satisfied that Ms. Wallman had no authority to dismiss Ms. Sullings. I am also satisfied that she played no role in the dismissal, a perspective that Ms. Sullings also harboured when her first reaction was to accuse Ms. Turpin and Ms. Gushue of being responsible for her dismissal.

[351]      It is undisputed in the evidence that, following her dismissal, Ms. Sullings rounded up Ms. Turpin and spoke to both Ms. Turpin and Ms. Gushue in Ms. Gushue’s office and blamed the two of them for her dismissal. I find that she related her dismissal to the activities of Ms. Turpin and Ms. Gushue of examining the closed file directory on the Z drive and finding the deficiencies. There was no evidence of any particular animosity between Ms. Turpin and Ms. Gushue, and Ms. Sullings; there was also no evidence that Ms. Turpin or Ms. Gushue ever made comments about Ms. Sullings’ disability or age. As a consequence, I find that Ms. Sullings’ alternate view of blaming Ms. Wallman for her dismissal is inconsistent with her reaction at the material time.

[352]      Further, Ms. Sullings attempted to link her weight to her disability, and therefore urged me to find that Ms. Wallman’s remarks were directed at her disability. However, I find that link was not established. It rests primarily on Ms. Sullings’ speculation that her disability contributed to her weight gain. I also find that drawing an inference that Ms. Wallman was implicitly attacking her disability by remarking on her weight is inconsistent with Ms. Wallman’s attributing weight to yogurt as she did.

[353]      I also find that the conspiracy theories advanced by Ms. Sullings, whether that Ms. Turpin and Ms. Gushue conspired to get her fired so that Ms. Turpin could have her job, or that Ms. Wallman led an office-wide conspiracy rooted in her personal prejudicial views of Ms. Sullings to get rid of Ms. Sullings, are speculation with no foundation in the evidence.

[354]      Ms. Sullings argues that Mr. Laughlin sought to pad the reasons for dismissal and I should draw an adverse inference from that. While I ruled against Laughlin on a number of the items in the Response and in the June 25, 2015 memo, I find that Mr. Laughlin’s arguments in support of relying on those items was not outside the realm of rationality. I am not persuaded to draw an adverse inference on this point. I further note that while after-acquired cause has no role in the human rights arena, it may well have a role in wrongful dismissal. However, that is not a matter for me to decide.

[355]      In summary, the evidence in this case is overwhelming that Mr. Laughlin dismissed Ms. Sullings because of performance issues. It is undisputed that Ms. Sullings was aware that her employment was in jeopardy after the appointment issue. It is undisputed that she knew exactly where she stood respecting the jeopardy in which she found her employment after the R. Family Law matter.

[356]      When it comes to the issue of scanning, it is undisputed that the file closing process was part of the receptionist’s responsibilities and that Ms. Sullings was aware of that from early on in her employment. It is undisputed that when digital preservation of closed files began in 2013, Ms. Sullings received training in scanning. It is undisputed that scanning and backing up, along with shredding, were part of the file closing process. It is also undisputed that these responsibilities did not reside with any other person in the office. While Ms. Sullings denies having been told at that time that scanning was her responsibility, and, in addition, that she must make backup disks of the scanned files, I find on all of the evidence that Ms. Sullings was told that scanning and backing up were part of her responsibilities.

[357]       Finally, it is undisputed that there were problems discovered in the closed file directory by Ms. Turpin and Ms. Gushue and that these problems were significant. They reported the problems to Mr. Laughlin. I find that Mr. Laughlin considered this information to be a culminating incident and he dismissed Ms. Sullings.

[358]      Ms. Sullings would have me drawn inference that her age and physical disability were factors in the dismissal. Neither her age nor her physical disability posed any barrier to booking appointments or carrying out instructions as in the R. Family Law matter or the less significant carpet cleaning issue. Further, with regard to scanning, neither her age nor her physical disability posed a barrier to carrying out those duties with the exception of lifting and carrying the physical closed file boxes to her desk. Others were willing to help and indeed, they did. Ms. Sullings conceded that her physical disability was fully accommodated.

[359]      Ms. Sullings argues that others in the office were frustrated by having to bring the boxes and pick up the slack. However, I find that the frustration stemmed from the fact that the scanning was not being done – that being the portion of Ms. Sullings’ duties which were not impacted by her physical disability or her age.

[360]      Further, Ms. Sullings suggests that an inference should be drawn from the fact that there was an office conspiracy to get rid of her. In the first instance she points the finger at Ms. Turpin and Ms. Gushue as having caused her dismissal in order that Ms. Turpin could get Ms. Sullings’ job. On the other hand, she points the finger at Ms. Wallman because Ms. Wallman had made some comments about her weight and, at some point, may have suggested that she should retire. The link she asks me to draw is that Ms. Wallman’s conduct infuses Mr. Laughlin’s decision and therefore, age and physical must be factors in the dismissal. As already noted, this last basis on which Ms. Sullings asked me to draw the inference is rooted in speculation and not supported by the evidence.

[361]      While the fact that Ms. Sullings was replaced by a younger person also weighs in her favour, when placed in the context of the totality of the evidence before me, I find that it alone is not enough to sustain an inference that age was a factor in Ms. Sullings’ dismissal.

[362]      Having reviewed all of the evidence, I find I am unable to draw the inference that Ms. Sullings’ age and/or disability was a factor in her dismissal from employment with Laughlin. Applying the test set out in Vestad, I cannot find that the inferences that Ms. Sullings would have me draw are more probable than the alternative explanation put forward by Laughlin. Whether her dismissal was fair, or whether it will hold up in a wrongful dismissal action is not for me to decide. Those are matters outside the scope of the Code.

 

 

 

 

VIII   CONCLUSION

[363]      For all of these reasons I dismiss the Complaint. As a result, it is unnecessary for me to address the issue of remedy.