In the Matter of the Human Rights Code R.S.B.C. 1996, c. 210 (as amended)
In the Matter of a complaint before the British Columbia Human Rights Tribunal
Teresa Pedley, Complainant and Hospital Employees Union and Unifor Local 468-W, Respondents
Robert B. Blasina Member
Judgment: February 19, 2015
Docket: 12180
2015 BCHRT 30
Counsel: Ib S. Petersen, for Complainant
Alison H. Narod, for Hospital Employees Union
Janine Brooker, for Unifor Local 468-W
Robert B. Blasina Member:
I Introduction and Background
1 The Respondent, Hospital Employees Union (”HEU”) — a trade-union representing employees in health-care in British Columbia — is the employer in this case.
2 The Respondent, Unifor Local 468-W, is the trade-union which represents HEU employees.
3 The Complainant, Teresa Pedley, was an employee of HEU, but at the material time was on an LTD leave due to a physical disability and had not been actively working for about ten years. There is no dispute that she has a physical disability.
4 HEU says that on or about February 1, 2013 the Complainant informed it that she intended to retire with the expiry of her LTD benefits at the end of April 2013. The Complainant does not disagree. She says she intended to retire at age 65 when her LTD benefits would run out; and, she did retire as of that date.
5 In February 2013, due to a loss of a significant portion of its membership to another trade-union in health-care, HEU decided to reduce its staff by 12 employees. There is no dispute that this decision was a necessary economic response to a reduction in revenue as a result of a significant reduction in its dues-paying membership.
6 When an employer intends to alter the employment conditions of a significant number of its employees covered by a collective agreement, s. 54 of the Labour Relations Code 1996 R.S.B.C., c. 244 requires an employer to meet with the trade-union representing its employees to negotiate an “adjustment plan”.
7 On February 28, 2013, HEU and Unifor agreed to such an adjustment plan — the “Transition Fund Agreement”. The Agreement called for HEU to make available to its eligible employees 12 enhanced lump-sum severance packages of $40,000.00 each to facilitate voluntary separations of employment, subject to certain conditions that are not relevant to this decision.
8 HEU presented the severance packages to its actively employed employees via their work e-mail addresses, on March 1, 2013. Employees were given a deadline of March 31, 2013 to apply. They would have until April 30, 2013 to terminate their employment.
9 HEU presented the same severance packages to its non-actively employed employees on March 7, 2013. These employees were absent on extended leaves, including Long Term Disability (”LTD”) leaves, and they did not have work e-mail. Unifor says the agreement to include employees not currently at work in the severance offer was made after the initial agreement was reached. Delivery of the severance offer to these employees was by “Xpresspost”, which is a priority-mail, courier service provided by Canada Post. They too, had to apply by March 31, 2013 and terminate employment by April 30, 2013.
10 The Complainant too, no longer had a “work e-mail” address. She and HEU would communicate regarding various matters via her personal e-mail. Although HEU knew the Complainant’s personal e-mail address, it did not attempt to communicate the severance offer to her by this means.
11 The Complainant was away from home from March 6 to April 6, 2013. She did not receive the Xpresspost delivery; and, it was returned to HEU. Canada Post attempted to deliver the severance offer to her home address on March 7 and 14. It first left her a notice of a failed delivery, indicating where she could go to pick up the item, and, a second notice advising the item would be returned to sender if not collected within ten days. Canada Post returned the item to HEU on or shortly after March 23. Canada Post erroneously noted in its records that the intended recipient had “refused” delivery, and it noted on the envelope returned to HEU that it was “unclaimed”.
12 The Complainant says, when she returned on April 7, 2013, she took the Canada Post notices of attempted delivery to the post office, and she was informed the item had been returned to sender. She says Canada Post did not provide any information about the notice. She attaches a copy of a letter to her from Canada Post dated January 14, 2014 which states that its tracking-record notation that the letter was “refused” was a clerical error. Canada Post writes, “On March 23, 2013 the item was returned to sender because the item was not picked up.” The Complainant says it is therefore likely that HEU received the returned letter prior to the March 31 deadline. HEU does not deny this.
13 Shortly after the March 31, 2013 deadline, HEU selected 12 employees for the enhanced severance packages, and they later resigned. The Complainant had e-mail exchanges with HEU’s Coordinator of Human Resources, post March 31, 2013. However, he did not mention the severance offer to her.
14 The Complainant says she only learned of the severance package offer, through fellow employees, in late June 2013. By this time, HEU had paid out the 12 severance packages. Taking the position it was now too late, HEU refused to provide her a severance payment. Unifor took a similar position, and indicated it would not proceed with a grievance on her behalf — although it later offered to do so.
15 The Complainant claims that this sequence of events, which left her ineligible to claim the $40,000.00 severance, amounts to discrimination by HEU and Unifor against her in the area of employment on the ground of physical disability contrary to s. 13 of the Human Rights Code.
II Application to Dismiss
16 HEU and Unifor have each made an Application to Dismiss (”ATD”) the Complaint pursuant to s. 27(1)(b) and (c) of the Code:
(1) A member or panel may, at any time after a complaint is filed and with or without a hearing, dismiss all or part of the complaint if that member or panel determines that any of the following apply: …
(b) the acts or omissions alleged in the complaint or that part of the complaint do not contravene this Code;
(c) there is no reasonable prospect that the complaint will succeed ….
17 The Tribunal has the following material before it:
- Complaint, November 22, 2013;
- Response to Complaint by HEU, January 13, 2014;
- Response to Complaint by Unifor, January 30, 2014;
- ATD by HEU, February 21, 2014, with attached Statutory Declaration by Chris Finding, HEU Coordinator of Human Resources;
- ATD by Unifor, March 6, 2014;
- Response to HEU and Unifor ATDs, April 4, 2014, with attached Statutory Declaration of Teresa Pedley, Complainant; and,
- Reply by HEU, April 16, 2014, with attached Statutory Declaration of Pamela Sagredo, Legal Assistant.
18 I have considered the information and submissions provided. The parties disagree on the merits of the Complaint; but, there is no significant dispute on the facts.
Submissions: HEU
19 HEU submits the severance offer was intended to generate a staff reduction of 12 employees. It submits the Complainant did not fit within the purpose of the severance offer as she had already decided that she would retire on April 30, 2013 with the expiry of her LTD benefits. It submits, for the Complainant, the severance offer was “effectively a gratuitous offer to her.”
20 HEU submits that it is not the severance offer which the Complainant alleges was discriminatory, but rather the method of its communication to her. HEU submits its longstanding practice was to use registered mail to notify employees on approved leaves of important work-related matters. It submits this practice is reasonable, legitimate, and consistent with the collective agreement. It submits that e-mail delivery outside its internal system does not provide the same record, is not always reliable, and cannot always be proven by the sender. It submits Xpresspost was selected because it is a form of registered mail, is quick, and it affords the sender a formal record that can trace and prove delivery.
21 HEU submits the Complainant is solely responsible for her not receiving the Xpresspost delivery. It submits she was away from home for reasons unrelated to her disability; she failed to make arrangements with Canada Post or anyone else to receive or collect her mail while she was away; and, she did not advise HEU that she would be away.
22 HEU submits the Complainant would not have been prejudiced had she received the severance offer on March 7, 2013. It submits it was not a requirement of the Transition Fund Agreement that an employee have a full month to consider the offer, nor would the Complainant have required a full month.
23 HEU submits the Complainant has not established a prima facie case of discrimination. It submits there was nothing inherently discriminatory in distinguishing between active and non-active employees in regard to the method of communicating the severance offer; and, there is no nexus between the method of communication and the Complainant’s disability. HEU submits the alleged failure in receipt of the communication was due to the Complainant’s decision to absent herself from her home address, for reasons unrelated to her disability, without notifying the HEU of that fact. It submits that “but for” the Complainant’s chosen absence, she would have received the severance offer.
24 In the alternative, HEU submits, if there was discrimination, the discrimination was justified. It submits the duty to accommodate was not triggered, because the Complainant did not inform it of any special need to accommodate, and, a complainant is obliged to facilitate accommodation. It submits the Complainant cannot expect a perfect accommodation.
25 HEU says Canada Post’s records (at the time) indicated that delivery was “refused”. It submits, when the letter was returned, it had no obligation to pursue the matter further; and, in any event, it was the Complainant’s absence from her home which frustrated the attempted communication, and this was not related to her disability.
26 HEU refers to the three-step “unified approach” expressed in British Columbia (Public Service Employee Relations Commission) v. B.C.G.E.U. (1999), 176 D.L.R. (4th) 1, [1999] 3 S.C.R. 3 (S.C.C.) (”Meiorin”). HEU submits the standard applicable to the communication of the severance offer was operationally sensible as a method of communicating the offer to non-active employees who had no work e-mails, and there was no requirement on it to use personal e-mail addresses. It submits it utilied Xpresspost on the honest and good-faith belief that it was a speedy mode of delivery which would record, trace, and prove delivery. It submits the use of Xpresspost was reasonably necessary to communicate with the non-active employees without work e-mail.
Submissions: Unifor
27 Unifor submits it was unaware that the Complainant was out of town, and had not received the severance offer. It submits it offered to pursue a grievance on her behalf, but she declined.
III Response
28 The Complainant submits that her complaint is in regard to the manner and the timing of the attempted communication to her of the severance offer. She submits it was because she was off-work on LTD that HEU attempted to communicate the severance offer via Xpresspost, which was by a different method, and at a different time, from employees actively at work. Therefore, she submits, there is a clear nexus between the method and timing of the communication and her absence due to disability, and therefore a clear nexus between her disability and the adverse treatment, i.e. the denial of the enhanced package.
29 The Complainant submits there is no dispute that she was eligible for the severance offer. She objects to HEU’s reference to the offer in her case as being effectively gratuitous. She submits her expressed intent to retire is irrelevant.
30 The Complainant submits employees on extended leaves were treated differently because the extension to them of the severance offer was an “afterthought”, and not made until March 6, 2013; i.e. five days later than to the active employees with work e-mails. She submits that no consideration was given to the particular circumstances of the employees on LTD. She submits that, having been off-work for ten years, there was no reason for her to inform HEU that she would be away from home. She submits that HEU has not pointed to any obligation requiring her to inform it of her absence from home; and, the reasonable expectation would be that HEU would communicate with her by her personal e-mail, even if in addition to Xpresspost. She submits, in today’s society, there is an expectation of communication by electronic communication, as such communication is reliable, inexpensive, and convenient.
31 In reply to HEU’s alternative argument based on Meiorin, the Complainant submits the HEU alleges no facts to establish that it considered either the method or timing of the communication of the severance offer in the context of her circumstances specifically, or of disabled employees generally. She does not dispute that HEU adopted the manner of communication in a good-faith belief it was necessary to fulfill a legitimate work-related purpose; but, she submits, it presents no evidence that it considered alternatives or the appropriateness of this particular method in the case of employees on LTD compared to other employees on extended leaves.
32 The Complainant submits it is reasonable to infer that the inclusion of employees on extended leaves was an “afterthought”. She submits HEU fails to establish any undue hardship for it to have communicated the severance offer to her via her personal e-mail. She deposes that she frequently, regularly, and daily, checks her personal e-mail. She deposes that she regularly checked her e-mail during her absence between March 6 and April 6, 2013.
33 The Complainant submits there is no reason HEU could not have used both Xpresspost and her personal e-mail, particularly as the severance offer was extended to employees on extended leaves later than to other employees, and, as the severance offer to her was returned to HEU prior to the March 31, 2013 deadline. Yet, she submits, HEU made no further attempt to contact her.
34 The Complainant submits that Canada Post acknowledges its mistake in the tracking record that the item was “refused”. She submits that personal e-mail is capable of tracking delivery, for example through notification that an e-mail was received by the recipient. She submits that the alleged longstanding practice of using registered mail is not a defence under the Code. She submits HEU’s reliance on the collective agreement is in reference to a provision which is irrelevant in the present circumstances.
35 The Complainant submits that Unifor declined to pursue a grievance on her behalf; it was reluctant to provide her information; and it has taken the same position as HEU. She submits it was reasonable for her to decline Unifor’s later offer to proceed with a grievance, and she should not be compelled to utilize the grievance procedure.
IV Reply: HEU
36 HEU replies that the Complainant does not dispute that her month-long absence and her failure to make arrangements regarding receipt of mail in the interim, had nothing to do with her disability. It replies that she does not deny she would have received the severance offer had she been home, or made arrangements for receipt of mail. It submits she would put the onus on HEU to anticipate and be liable for all potential scenarios.
37 HEU agrees that the inclusion of employees on extended leave, including LTD, was raised on the next business day, Monday, March 4, 2013. However, it denies this was an “afterthought”, and submits it was part of a considered approach to ensure that “all bases were covered and all obligations met.”
38 HEU replies that it knew of no “particular circumstances”, in regard to employees on LTD, which required the implementation of a different manner of communication, other than Xpresspost.
39 HEU attaches a document entitled “iCloud Terms and Conditions”. It submits the e-mail system used by the Complainant is not guaranteed, and that e-mail communications are not secure, and are sometimes lost or delayed, despite the best efforts of senders or recipients. It submits that e-mail communications may not be as reliable as the older forms of communications such as priority post.
40 HEU submits there was no reason for it to deviate from its usual practice of using priority post. It submits there was no reason for it to pursue delivery in the face of records that said delivery had been “refused” and the item was “unclaimed”. HEU notes that the Complainant says Canada Post did not provide her any information about the notice. However, HEU submits, she does not say she asked for any information.
41 In reply to the Complainant’s submission that she suffered a loss of $40,000.00, HEU submits that in the circumstances of its concluding a “buy-out” of twelve employees, and considering its efforts to communicate with the non-active employees, it would be an undue hardship for it to unravel past events, considering the Complainant’s responsibility for absenting herself from her home without telling HEU or taking reasonable precautions to receive her mail in the interim.
42 HEU submits the Complainant’s suggestion that she would expect HEU would use her personal e-mail to deliver important work-related correspondence does not justify her failure to notify it of any particular circumstances requiring accommodation. It submits it had no evidence of any change in circumstance indicating that delivery by priority post would not be successful. It submits there are no facts establishing that HEU ought to have considered any alternative method of communication because it ought to have known or anticipated she would not receive the communication. It submits that it had no duty to accommodate her absence from home when the absence was for personal reasons.
43 HEU submits the Complainant unreasonably expects HEU to consider all possibilities about the whereabouts of an employee, and fails to take personal responsibility.
V Analysis and Decision
Preliminary Issue
44 The HEU submits that the Complainant did not fit the profile of an employee who was intended to be the beneficiary of the severance package because she had announced her plans to retire at the end of April 2013. The Complainant submits that the decision to offer the severance package to employees on LTD such as herself was an afterthought.
45 Whether it was an afterthought, or whether the Complainant fit the profile, it is undisputed that a decision was made to offer the severance package to the complainant, and an attempt was made to communicate the offer to her. Neither of these submissions is material.
46 This case boils down to this: a method of communicating the offer to the Complainant was chosen and it had an adverse impact on the Complainant; the sole issue raised by the complaint is whether there is any nexus between that choice, the adverse impact, and the Complainant’s disability.
The Law: Section 27(1)(b)
47 A complaint may be dismissed under s. 27(1)(b) if the acts or omissions alleged in the complaint, if proven, could not contravene the Code. A determination under s. 27(1)(b) is based entirely on the complainant’s allegations, “without reference to any alternative scenarios or explanations provided by the respondent:” Bailey v. British Columbia (Attorney General), 2006 BCHRT 168 (B.C. Human Rights Trib.), para. 12.
48 The Tribunal’s approach, under s. 27(1)(b), is to assess “whether the complainant alleges facts that, if proven, could constitute a contravention of the Code.” Stanley v. Prince George Construction Assn., 2009 BCHRT 94 (B.C. Human Rights Trib.), para. 17. In other words, s. 27(1)(b) is concerned with whether the Complainant alleges facts which, if proven, would establish a prima facie case. In O’Malley v. Simpsons-Sears Ltd., [1985] 2 S.C.R. 536 (S.C.C.) (”O’Malley”), the Supreme Court of Canada stated:
A prima facie case in this context is one which covers the allegations made and which, if they are believed, is complete and sufficient to justify a verdict in the complainant’s favour in the absence of an answer from the respondent-employer. (para. 28)
49 Therefore, in the absence of sufficient evidence to sustain a finding of a contravention of the Code, i.e. in the absence of a prima facie case, a respondent is not obliged to raise a defence. In Ingram v. British Columbia (Workers Compensation Board), 2003 BCHRT 57 (B.C. Human Rights Trib.) (”Ingram”), the Tribunal stated:
… There would have to be some allegation that a worker has been discriminated against on the basis of disability in order for a potentially valid human rights complaint to exist. In other words, a complainant must allege facts that, if proven, would establish that they have been in some way adversely affected by reason of their disability. It is not enough to say one is disabled and has been treated unfairly. There must be some connection or nexus between the two. …
(para. 20, emphasis added)
50 In Syndicat des employés de l’Hôpital général de Montréal c. Sexton, [2007] 1 S.C.R. 161 (S.C.C.), the Supreme Court of Canada stated:
… [T]here is a difference between discrimination and a distinction. Not every distinction is discriminatory. It is not enough to impugn an employer’s conduct on the basis that what was done had a negative impact on an individual in a protected group. Such membership alone does not, without more, guarantee access to a human rights remedy. It is the link between that group membership and the arbitrariness of the disadvantaging criterion or conduct, either on its face or in its impact, that triggers the possibility of a remedy. And it is the claimant who bears this threshold burden.
(para. 49, emphasis added)
51 In the present case, the Tribunal must be satisfied that the Complainant alleges facts which, if proven, would indicate a physical disability, adverse treatment, and a nexus between the physical disability and the adverse treatment. In British Columbia Public Service Agency v. B.C.G.E.U., 2008 BCCA 357 (B.C. C.A.), para. 4, the Court of Appeal spoke of a “causal link” between the disability and the adverse treatment. In sum, whether one speaks of “causal link”, “link”, “factor”, “nexus”, or “connection”, the Tribunal’s concern will be with whether a ground of protection under the Code (in this case, physical disability) substantively contributes to the adverse treatment. If there is adverse treatment, but the alleged Code-protected ground is not a factor in the adverse treatment, there can be no contravention of the Code. In such a case, the Tribunal would not have jurisdiction to provide redress.
Decision: Section 27(1)(b)
52 The Complainant alleges she has a physical disability. This is not in dispute. As a result of her physical disability, she was on a LTD leave which continued through March and April until her retirement on April 30, 2013.
53 The Complainant submits her complaint is in regard to the manner and timing of the attempted communication with her and her later being denied a severance package. She submits that because she was off-work on LTD, HEU attempted to communicate the severance offer to her by Xpresspost. Therefore, she submits, her physical disability was a factor.
54 In respect to her Complaint against Unifor, she complains the Union was not supportive or encouraging when she inquired about the severance offer, and was unwilling to advance a grievance on her behalf. The Complainant does not claim that the severance offer itself was discriminatory.
55 However, as the Tribunal stated in Ingram, para. 20, “It is not enough to say one is disabled and has been treated unfairly.” Not all adverse treatment is contrary to the Code. An ATD pursuant to s. 27(1)(b) of the Code may still be upheld, resulting in dismissal of the complaint, if the complainant fails to allege acts or omissions which, if proven, would constitute a causal link or nexus between the disability and the adverse treatment or impact.
56 The Complainant was indeed off-work, on LTD, because of a physical disability. Other than asserting the ground of physical disability, the Complainant does not allege facts which, if proven, would indicate a causal link between her physical disability and HEU’s choice of using Xpresspost. First, the most that can be established on the Complainant’s alleged facts is a link between that choice and absence from work per se, and not the reason behind the absence. Second, no reasonable inference can be drawn that the Complainant’s disability was a factor in the choice by HEU to use Xpresspost. That choice applied to all employees on extended leaves regardless of the underlying reason for the leaves. Consequently, I find that the Complainant has not established a prima facie case with respect to choice of method of communicating the severance package offer.
57 This leads to the Meiorin-like issue where a seemingly neutral application of a choice results in an adverse impact. In short, the Complainant’s claim of adverse treatment cannot be with respect to the use of Xpresspost per se, but with HEU’s failure to successfully communicate the severance offer to her. In particular, HEU failed to communicate the severance offer to her, whether by Xpresspost or her personal e-mail, in time for her to apply for the severance before the March 31, 2013 deadline.
58 To establish a prima facie case in this respect, the Complainant is required to allege facts that, if proven, would show that the failure to successfully communicate the severance offer to her was connected to her disability and resulted in the adverse impact — the loss of opportunity to apply for the severance. Her own evidence is that she was away from March 6 to April 6, 2013, unrelated to her physical disability. I find that the real nexus between the failure to communicate and the adverse impact established by the facts alleged is her absence away from home, and not her disability.
59 While HEU could have attempted to communicate the severance offer to her via her personal e-mail, regardless of its reasons for using Xpresspost, there is no allegation which would establish that it did not e-mail her at least in part because of her physical disability.
60 Having missed the opportunity to apply for one of the severance packages, the Complainant then alleges she was told — by HEU and Unifor — that it was too late to apply, and nothing could be done. Again, no causal link to her physical disability is presented.
61 Therefore, I grant the HEU and Unifor ATDs under s. 27(1)(b), and dismiss the Complaint against both, pursuant to this provision. Nevertheless, I will also consider the application to dismiss under s. 27(1)(c).
The Law: Section 27(1)(c)
62 A complaint may be dismissed under s. 27(1)(c) of the Code if the Tribunal Member determines there is no reasonable prospect that the complaint will succeed. The Tribunal Member considers all the information that has been provided, not just that presented by the complainant. The Tribunal stated in Wickham v. Mesa Contemporary Folkart Inc., 2004 BCHRT 134 (B.C. Human Rights Trib.):
… The role of the Tribunal, on an application [under s. 27(1)(c)], is not to determine whether the complainant has established a prima facie case of discrimination, nor to determine the bona fides of the response. Rather, it is an assessment, based on all of the material before the Tribunal, of whether there is a reasonable prospect the complaint will succeed: Bell v. Dr. Sherk and others, 2003 BCHRT 63.
The assessment is not whether there is a mere chance that the complaint will succeed, which would be the lowest threshold a complainant would have to meet. Nor is it that there is a certainty that the complaint will succeed, which would be at the highest threshold a complainant would have to meet. Rather, the Tribunal is assessing whether there is a reasonable prospect the complaint will succeed based on all the information available to it. (paras. 11-12)
63 In British Columbia (Workers’ Compensation Appeal Tribunal) v. Hill, 2011 BCCA 49 (B.C. C.A.), the B.C. Court of Appeal described the Tribunal Member’s role under s. 27(1)(c):
It is useful to describe the nature of an application under s. 27 of the Code to provide context for the appellants’ arguments. That provision creates a gate-keeping function that permits the Tribunal to conduct preliminary assessments of human rights complaints with a view to removing those that do not warrant the time and expense of a hearing. It is a discretionary exercise that does not require factual findings. Instead, a Tribunal member assesses the evidence presented by the parties with a view to determining if there is no reasonable prospect the complaint will succeed. The threshold is low. The complainant must only show the evidence takes the case out of the realm of conjecture. If the application is dismissed, the complaint proceeds to a full hearing before the Tribunal. If it is granted, the complaint comes to an end, subject to the complainant’s right to seek judicial review: Berezoutskaia v. British Columbia (Human Rights Tribunal), 2006 BCCA 95, 223 B.C.A.C. 71 at paras. 22-26, leave to appeal ref’d [2006] S.C.C.A. No. 171; Gichuru v. British Columbia (Workers Compensation Appeal Tribunal), 2010 BCCA 191, 285 B.C.A.C. 276at para. 31. (para. 27)
64 In a review under s. 27(1)(c) of the Code, the Tribunal does not determine whether the complainant has established a prima facie case of discrimination or the bona fides of the response: Wickham and Wickham, supra. However, if it is shown that a complainant at a hearing has no reasonable prospect of proving an element of the prima facie case, then clearly there is no reasonable prospect the complaint will succeed.
65 Finally, in light of the Meiorin-like issue identified above, Meiorin, cited by the parties, provides a somewhat helpful overlay in analyzing the prospects of success. The Supreme Court of Canada stated in Meiorin:
Having considered the various alternatives, I propose the following three-step test for determining whether a prima facie discriminatory standard is a BFOR. An employer may justify the impugned standard by establishing on the balance of probabilities:
(1) that the employer adopted the standard for a purpose rationally connected to the performance of the job;
(2) that the employer adopted the particular standard in an honest and good-faith belief that it was necessary to the fulfilment of that legitimate work-related purpose; and
(3) that the standard is reasonably necessary to the accomplishment of that legitimate work-related purpose. To show that the standard is reasonably necessary, it must be demonstrated that it is impossible to accommodate individual employees sharing characteristics of the claimant without imposing undue hardships upon the employer. (para. 54)
Decision: Section 27(1)(c)
66 There is no dispute that the Complainant suffers from a disability and was absent at the material time on LTD. Similarly, the Complainant will likely be able to establish that she suffered an adverse impact, namely the loss of an opportunity to apply for the severance package. The real issue is the nexus to the disability, and, the question under s. 27(1)(c) is whether the Complainant has no reasonable prospect of success in establishing this critical element of the prima facie case.
67 The HEU’s evidence shows that the severance package was offered to eight employees on extended leaves, including three employees on LTD. None were actively working at the time. However, this group included employees who would be subject to return to work (for example, if on maternity leave), and, the very status of being on LTD leave does not necessarily mean the employee’s disability precludes a future return to active employment. HEU says it took steps to communicate the severance offer to these employees by March 7, which should still have provided significant time before the March 31, 2013 deadline to respond.
68 The information provided by HEU to the Tribunal is that Xpresspost was used because the employees on extended leave did not have work e-mail, and Xpresspost was a quick form of delivery by registered mail. Xpresspost was used in all cases, including for the Complainant and the two employees on LTD beside her. I find therefore that the Complainant has no reasonable prospect of establishing that HEU differentiated between these employees based on the ground of their extended leave in choosing the method of communication, or that any of the reasons for extended leave played a role or was a factor in that choice.
69 I also accept HEU’s submission that the conveyance of the severance offer via Xpresspost met the three-part test expressed in Meiorin. In relying on Xpresspost, it is undisputed that HEU treated her the same as any other employee on extended leave, including others on LTD. Using the Meiorin framework, the evidence of HEU shows that it adopted a method of communication that was rationally connected to the job related objective and that the method chosen was adopted honestly and in good faith by HEU believing it to be necessary to achieving the purpose. Xpresspost is an undisputed reasonable process for delivery of the severance offer. Thus, I am satisfied the Complainant has no reasonable prospect of success in establishing a failure on the part of HEU on either of those two elements of Meiorin.
70 The last element requires HEU to show that the method of communication chosen is reasonably necessary to achieve a work-related purpose. To measure the reasonableness, the Supreme Court of Canada said that “it must be demonstrated that it is impossible to accommodate individual employees sharing characteristics of the claimant without imposing undue hardships upon the employer.” The characteristics referred to are those that would be protected by the Code — in this case, disability. However, the evidence shows that the accommodation that would have been required by the Complainant had nothing to do with her disability, and everything to do with her extended absence from home — which is not a protected characteristic.
71 The Complainant does not deny that “but for” her own conduct, unrelated to her physical disability, she would have received the offer. The Complainant does not allege that she was away for reasons of physical disability, and therefore does not establish that her being away required accommodation, as a human rights matter, in the method of communication. For the Complainant to conclude that HEU’s failure to resort to her personal e-mail to communicate the offer is somehow related to her physical disability is pure conjecture on her part.
72 Thus, I am further satisfied that the Complainant has no reasonable prospect of success in establishing a failure of HEU on this last element of Meiorin. I must conclude that the Complainant has no reasonable prospect for a finding that HEU’s not e-mailing her amounted to a contravention of the Code.
73 As a result and on this analysis as well, I am satisfied that the Complainant has no reasonable prospect of establishing the required nexus between the adverse treatment and her disability.
74 To the extent that the Complainant also alleges discrimination in HEU’s refusal to provide her the severance package, after HEU had already paid-out twelve employees who had accordingly resigned, and, she alleges discrimination in Unifor’s agreement with HEU’s position, I find she has no reasonable prospect of success. Considering that: the accommodation she wanted in this regard would require either a reversal of the severance package with respect to another employee, or, an additional expenditure of $40,000.00, and that the Complainant bears sole responsibility for not receiving the offer via Xpresspost, I must conclude that, in the context of a human rights complaint, the Complainant is seeking an accommodation which would visit an undue hardship on her employer and perhaps another employee in the bargaining unit. I must therefore conclude there is no reasonable prospect the Complaint will succeed against HEU.
75 Based on the above considerations, I therefore also find that there is no reasonable prospect that the Complaint will succeed against Unifor. I further note that Unifor later agreed to pursue a grievance on the Complainant’s behalf, but she refused. The Complainant expresses a skeptical perception of the Union. Although there is no issue of the Complainant being “compelled” to go through the grievance procedure, I would not conclude that the Union, as an exclusive bargaining agent subject to a duty of fair representation under the Labour Relations Code, would not provide the Complainant with competent representation.
VI Conclusion
76 In conclusion, I grant the ATDs as filed by HEU and Unifor pursuant to s. 27(1)(b) and (c) of the Code. The Complaint is therefore dismissed.
Applications granted; complaint dismissed.