Introduction
The case under study involves a dispute between HP Accounting and Samuels, one of the company’s former employees. Samuels has been laboring from an illness, which has caused her to be in a wheelchair full-time. Though she started working with HP while in a wheelchair, her health has been deteriorating with time. However, this has not affected her dedication and commitment to HP. The company’s manager, Penney wrote a retirement notice to Samuels on grounds of her declining health condition. Samuels felt that Penney had discriminated against her because of her disability and she decided to sue Penney before this Tribunal. The ground for Samuels’ lawsuit is Section 8(1)(a) of the Human Rights Code [RSBC 1996].
Section 8(1)(a) of the Human Rights Code [RSBC 1996] prohibits a person from denying any person or class of persons a facility, service, or accommodation ordinarily available to the public, without any realistic or good faith justification. Section 8(1)(b) further prohibits any person from unjustly discriminating against a person or group of people in relation to a facility, service, or accommodation ordinarily available to the public on any ground including disability.
The question before the Tribunal is whether HP Accounting discriminated against Samuels, contrary to Section 8 of the Code. First, the Tribunal will scrutinize the facts of the case. Since the Applicant and Respondents do not agree on most of the facts, the Tribunal will determine the relevant facts to the case based on the evidence produced. Next, the Tribunal will explore the legal findings and establish the reasoning for its decisions. The next section will be on the potential remedies for both parties. The last part discusses other possible arguments that Samuels could use to sue HP Accounting.
Summary of Facts
The Applicant, Samuels, issued HP Accounting and Penney for discriminating against her on grounds of disability, contrary to Section 8(1) of the Human Rights Code [RSBC 1996]. Samuels claims that she has been using a wheelchair since she started working with HP. She has worked with HP for over 20 years and HP knows about her disability. Samuels claims that she was a valued employee of HP and there are clients that HP retained because of her dedicated services.
Samuels claims that Penney decided to move the buildings of HP to Wharf Street without considering her disability. According to Samuels, Penney wanted the company to relocate to Wharf Street because Penney’s office would have a wonderful ocean view. Samuels asserts that she communicated her disability concerns to Penney but Penney thought she was being excessively dramatic. Thus, Penny gave Samuels an abrupt retirement notice with a salary package of six months. Samuels asserts that Penney humiliated her by communicating her abrupt retirement before all the employees of HP.
Penney alleges that the company was aware of Samuels’ disability and the fact that Samuels was a valued employee of the company. However, the Respondents state that they did not discriminate against Samuels when selecting Wharf Street. Penney claims that he took steps to ensure that Wharf Street would be wheelchair accessible in order to accommodate Samuels.
Penney further asserts that he gave Samuels a retirement notice because she insistently asked for retirement. Samuels wanted to retire because she felt that long drives from her home and Wharf Street would make her neck sore. Penney also claims that the rules of HP did not require him to give Samuels any notice or compensation. Thus, he gave the abrupt notice and compensation package with good intentions.
Factual Findings
Factual findings are a chief focus for any tribunal. Cases involving a mutual agreement on facts by the parties concerned are usually straightforward. However, cases where the parties disagree on the facts usually involve the determination of facts by the tribunal. In this case, the Applicant and Respondent agree on certain facts but disagree on most of the facts.
Both parties agree that Samuels started working with HP when she was laboring from the disability and that Penney was aware of her disability. Both parties also agree that Samuels was a valued employee of HP and that she helped in retaining clients for the company.
Exhibits and documents produced as evidence need to be supported by credible factual evidence for them to be admissible (Fenwick, 2007, p. 55). Exhibit E produced by Samuels is photographs of the outside and inside of Wharf Street demonstrating the inaccessibility of the building. This evidence is helpful as it assists the Tribunal in determining whether HP took reasonable steps to ensure that the building would accommodate Samuels. Exhibit F is an email showing a conversation of Penney and two staff members that he will stop at nothing but the harbor because he has been longing for a water-view office. This evidence is not very reliable because the conversion consists of hearsay, which is not admissible.
Exhibit G is a letter from Penney informing Samuels that because of her declining health, she would have to retire from her position and be given a six months compensation package to help her in her transition. This evidence is reliable because it brings out the clear intention of Penney for causing Samuels’ abrupt retirement. Exhibit H is a letter from the Job Search Professionals showing that Samuels is a good candidate for the job market but finding a job has become very difficult. This evidence is admissible as it shows that the abrupt retirement of Samuels has made her jobless.
The Tribunal considers the fact that Penney had assured Samuels that he would ‘figure out something’ to ensure that Samuels fits into the Wharf Street building. Penney, however, does not agree with Samuels that the retirement was because Penney wanted to have an ocean-view office. The Respondent claims that he had organized for ground floor bathroom facilities for Samuels so that she would not strain at her work.
Penney also claims that Samuels had insisted on various occasions that she wanted to retire because she did not want to go to Wharf Street, which was far from her home, and that she did not want long drives to and from the workplace. The Respondents, however, admit that Samuels informed Penney about her health concerns with regard to the long drives between her place and Wharf Street. This information is reliable because it helps the Tribunal in deciding whether the Respondent Company put into consideration the complaints of the Applicant and acted upon them.
Penney claims that the lease for the original building, 1234 Sannichton Road, where HP conducted its operations since its inception expired. In addition, John Smith of Canada Health Inspections deemed the building unsafe, as indicated in Exhibit A, which outlines the problems with the building. Penney produced Exhibit B as a letter that he wrote to immediately notify the employees and suppliers of HP about the change in the status of the buildings. He advised his staff that the offices of the Respondents would be moving only after discussions with an independent building inspector and the current owner of the building.
Penney produced Exhibit C to show that he made arrangements with ABC Real Estate to acquire a new office that would accommodate a wheelchair. Penney also produced Exhibit D to show his engagement with ZZZ Architects in the assessment and preparation of an accessibility audit. ZZZ Architects also made a recommendation plan for a location that would put into account a facility to accommodate Samuels and other members of the public. Exhibits C and D are reliable in the determination of whether HP and Penney took steps to ensure that the new building would accommodate Samuels’ disability condition.
The Respondent claims that Samuels engaged in two conversations with Penney, in which Samuels showed that she would rather retire than make long drives to Wharf Street. Penney also produced affidavits from three employees who attested that Samuels had intimated with them about her desire to retire. Penney alleges that Samuels kept talking to her colleagues that she felt that Penney was selfish by deciding to move to a location that only suits his needs. Penney went ahead and issued Samuels a retirement letter with a six months’ salary, even though the Respondent Company did not require that notice or compensation be given to employees.
Penney claims that Samuels was the one who cited declining health as the reason for retirement. Penney also claims that he has never discussed the Applicant’s mobility or health issues with other employees. The renovations for the accommodation of Samuels were put on hold because Samuels had retired.
Legal Findings
The argument of the Applicant is based on the provisions of Sections 8(1) and 13(1)(a) of the British Columbia Human Rights Code. Samuels argues that the Respondents’ refusal to select an appropriate office space, or in the alternative, the failure to make necessary accommodations for her wheelchair amounted to discrimination as provided under the Code.
Section 13(a) of the Code protects employees from discrimination on grounds of disability. The section prohibits employers from refusing to employ or refusing to continue employing a person with a disability. Section 13(1)(b) prohibits employers from discriminating against employees in relation to employment or any terms or conditions of employment on the basis of disability or any other ground.
Samuels claims that she has always valued her working relationship with HP and that she would like to continue working. Samuels claims that even if Penney had not forced her to retire, she could not continue working for the Respondent company because 1019 Wharf Street does not accommodate her wheelchair condition.
Section 8 of the Code prohibits a person from denying any person or class of persons any facility, service, or accommodation ordinarily available to the public, without any realistic or good faith explanation. Section 8(1)(b) further prohibits employers from unreasonably discriminating against a person or group of people in relation to a facility, service, or accommodation ordinarily available to the public on any ground including disability.
The Respondents assert that the allegations lodged by Samuels should be dismissed. The Respondents believe that they did not refuse to employ Samuels contrary to Section 13(1)(a) of the Human Rights Code. They also claim that they did not discriminate against Samuels in line with Section 8 of the Code with regard to the denial of accommodation, service, or facility ordinarily available to the public.
According to the Respondents, the Tribunal should dismiss the allegations by Samuels under Section 27(1)(b) and (c) of the Code. The Section provides for a tribunal to dismiss complaints, where the omissions or acts complained of, are not in contravention with the Code, or where there is no reasonable ground that the complaint will succeed.
The success of a complaint under Section 8(1) of the Code is based on a prima facie case of discrimination in relation to amenities. Samuels claims that she has been a long-standing employee of HP and that Penney would have put her in mind while looking for another building. According to Samuels, the words and actions of Penney indicated that he did not care about Samuels’ ability to continue working with the Respondent Company. Samuels claims that the emails of Randy and Rumor are sufficient proof for her assertions. The Tribunal deems the evidence provided by the emails as unreliable in this case because they are mere hearsay.
The Respondents have expert evidence to show that the original building at 1234 Sannichton Road was unsafe and that the lease had expired. There is enough evidence to show that Penney took reasonable steps to ensure that the building would accommodate Samuels’ wheelchair as presented by Exhibits C and D.
Penney sought the advice of building experts to come up with a plan that could address Samuels’ concerns. Samuels admits that when she told Penney about her wheelchair concerns, Penney had assured her that ‘he would figure out something. Penney provided evidence to show the special efforts he had made to add square footage to the new building to provide the Applicant with her own private office. Penney also organized for a private washroom facility for Samuels so that she could easily access it. Penny also planned to set up a parking spot close to the entrance of the building to make it easy for Samuels to park her car.
Penney also indicates that he informed all staff members about the plan to relocate and the reason for relocation. He communicated this information through a formal letter, which was disseminated across the firm. The credibility of Penney’s letter for relocation to the staff is higher than that of Rumor and Randy who claimed that Penney wanted to move the building because of his interest in an ocean-office view. It is clear that Penney had a reasonable and bona fide justification to move the building rather than furthering unreasonable and inappropriate personal interests.
The Respondents directed this Tribunal to the case of McDougall v Superior Building Maintenance (N0. 7) 2008 BCHRT 353. The tribunal held that section 8(1) of the Code should not compel employers into hardship in the bid to accommodate personnel. This stare decisis (Taylor, 2008, p.108) forms an important basis for the decision of this issue before the Tribunal. The facts of this case clearly demonstrate that the steps taken by the Respondents are a sufficient indication of their concerns about Samuels’ disability.
The most credible evidence that Samuels can rely on to establish discrimination on the ground of her disability is Penney’s letter for retirement. The letter indicates that Penney was discontinuing Samuels’ employment because of her declining health condition. Penney claims that he gave the abrupt retirement notice because Samuels had insisted on retiring. The Tribunal does not see any reliable evidence showing that Samuels really wanted to retire.
Remedy
Section 37(2) of the Code provides for the remedies that a Tribunal has the authority to order. According to Section 37(1), the Tribunal should dismiss a complaint that it deems unjustified. Section 37(2) (a) states that where the Tribunal deems a complaint as justified, it should order the party that acted in contravention to the Code to stop the contravention or committing a similar contravention. The Tribunal may declare that the conduct complained of amounts to discrimination as prohibited by the Code.
The Tribunal may also order the party that contravened the Code to take certain steps in reducing the consequences of the discriminatory conduct. The Tribunal may also order the adoption and implementation of an employment equity program or another such program for purposes of ameliorating the situation of a disadvantaged person or class of persons. The Tribunal orders this remedy where it establishes that the party contravened the provisions of the Code.
Section 37 (2) (d) provides for remedies that the Tribunal may direct to a party belonging to the disadvantaged class of which the complaint has been lodged. The Tribunal should avail the denied privilege or opportunity to the injured party. Second, the Tribunal should give an order for the compensation of the injured party, or any wages or salary lost, or expenses sustained as a result of the contravention. The Tribunal may also require the Respondent to pay the injured party for any damages to self-respect, feelings, and dignity.
The Respondents directed the Tribunal to Sections 27(1) (b) and (c) of the Code, which provides for dismissal of a baseless complaint or a complaint that does not have the prospect of succeeding. The Respondents cited the case of Saroya v. Hudson’s Bay Company, 2012 BCHRT 306 (CanLII), where the Tribunal held that it is important to establish that a complaint does not have a reasonable prospect of succeeding before dismissing it. The Respondents are of the view that Samuels’ complaint does not have a reasonable prospect of succeeding and that the Tribunal should dismiss it. In respect of dismissal, the Respondents seek costs as provided under Section 37(4) of the Code.
The Tribunal finds that it was not just for the Respondents to give the Applicant a retirement notice on grounds of her declining health condition. Penney could not give such an abrupt notice to Samuels on the ground that Samuels had jokingly said in a conversation that he would rather retire than go to Wharf Street. Furthermore, mere conversations among employees amount to hearsay because there was no formal communication between Samuels and the Respondent Company.
There is a high prospect of Samuels’ complaint succeeding, meaning that her complaint is justified. Penney also acted unreasonably by seeking accommodation advice from experts but eventually forcing Samuels to retire so that he could stop working on the same.
Where the Tribunal deems a complaint as justified, the remedy provided under Section 37(2) (a) is mandatory. Thus, Samuels should be entitled to a mandatory remedy of reinstatement to her position at HP because Penney gave her an abrupt retirement notice on unjustifiable grounds. The Respondents also need to compensate Samuels the salary and wages, and any expenses incurred while seeking this administrative remedy. In addition, the Respondents should compensate Samuels for the injury caused to her dignity as she experienced humiliation before her colleagues when Penney forced her to retire prematurely.
Other Possible Arguments
Procedural Fairness
The other issue that the parties raised was in relation to the abrupt notice given to Samuels. The parties pointed out that the notice given to Samuels was abrupt. Samuels is very devastated because she did not have any financial savings for retirement and her plan was to work with the Respondent Company for at least another 8 years before considering retirement. The applicant can argue that it was not procedurally fair for Penney to base on an informal conversation with Samuels to give her an abrupt notice for retirement.
Penney claims that the procedures of HP Accounting do not require him to give the employees any notice or compensation. He gave the notice to Samuels without putting into account the effects of such an abrupt notice to Samuels. It is even more devastating that Samuels, who has been a great value to the company, is subject to the company’s unfair procedure.
Section 23 of the Ombudsman Act provides that the administration of authority may be reported by the Ombudsman if found that an act, omission, recommendation, or decision complained of has certain problems. A problem may arise if the act, omission, recommendation, or decision under investigation is associated with the application of unfair, unreasonable, or arbitrary procedures.
Samuels can argue that Penney applied an unfair, unreasonable, or arbitrary procedure in deciding to give her an abrupt notice and six months compensation. Penney, as the owner of HP Accounting, should have rectified the procedures so that they operate in line with the Ombudsman Act. Thus, the Tribunal may order the adoption and implementation of an employment equity program or another such program for purposes of ameliorating the situations of employees who have a lower bargaining power than Penney and HP Accounting.
An Improperly Discriminatory Act, Omission, Decision, or Recommendation
Generally speaking, discrimination refers to the act of making a distinction (Code of Administrative Procedure, 2003). Section 23 of the Ombudsman Act [RSBC 1996] holds administrations of authorities liable for acts, omissions, recommendations, or decisions that are discriminatory or based on discriminatory procedures. From a legal perspective, discrimination refers to the act of inappropriately distinguishing persons or classes of persons in line with their personal attributes, and which puts such persons or classes of persons at a disadvantage.
The general rule is that discrimination is inappropriate if it does not reasonably further the achievement of the general objectives of the legislative or administrative scheme that it serves. Thus, Samuels can lodge a successful argument that Penney’s decision to make Samuels retire on the ground of her disability was in contravention of Section 23 of the Ombudsman Act.
Samuels was a valued employee of HP Accounting. There is sufficient evidence, even by the Respondents, that Samuels was a dedicated employee who promoted the realization of the company’s objectives. Samuels worked with HP for a period of over 20 years, and the company never complained that her disability interfered with her performance. Thus, Penney’s decision to force Samuels’ retirement amounts to improper discrimination, contrary to Section 23 of the Ombudsman Act.
Oppressive Decisions
The Tribunal can also decide on the issue of whether the decision by an administrative authority was oppressive, contrary to Sections 23(1)(a)(ii) and (iii) of the Ombudsman Act. Oppressive conduct refers to conduct that is cruel, unreasonably harsh, or burdensome. Oppression refers to the unjust exercise of power or abuse of discretionary authority. The Tribunal should not determine an oppressive act by its motive but by its effects.
Samuels can argue that the abrupt notice to retire given by Penney was oppressive in the sense that Penney unjustly exercised his power by acting unreasonably harsh to Samuels. Furthermore, the six months compensation package could not cater for the devastation caused to Samuels with the premature retirement. The company’s procedures are oppressive because they do not require employees to receive notice or compensation. The procedures are contrary to the rules of natural justice that provide for the right to adequate notice and the opportunity to be heard. The Tribunal should order HP Accounting and Penney to review the procedures and ensure that they are in line with the rules of natural justice. The Tribunal should also caution Penney to use her discretionary power in an appropriate manner so that he does not occasion unreasonable harshness on the employees.
Irrelevant decision
According to Section 23 of the Ombudsman Act, an irrelevant decision is a decision that is based on extraneous rules, policies, circumstances, or matters. HP’s rule that employees should not receive notice or compensation packages is extraneous. Thus, Penney’s decision to give Samuels an abrupt retirement notice and an unreasonable compensation package are irrelevant. Samuels would still succeed if he sued the Respondents under Section 23 of the Ombudsman Act.
Conclusion
The Canadian Tribunal is a quasi-judicial body that aims at determining discrimination complaints by assessing evidence, listening to representations, and issuing rules in line with a particular issue. The Tribunal aims at fostering transparent, fair, and speedy hearings, and providing well-reasoned, precise, and just decisions for any proceedings falling within its jurisdiction. The case of Samuels and HP Accounting is one such case that falls within the Tribunal’s mandate.
The Tribunal is likely to decide in favor of Samuels. Penney does not properly substantiate his reason for issuing Samuels a premature retirement letter on grounds of her declining health condition. The only reason Penney gives is that Samuels had insisted in several conversations that she would rather retire than go to work at the Wharf Street location. Samuels’ remarks only amount to an opinion, which cannot be used as a ground to give her a retirement notice. Samuels showed the inaccessibility of the building for people with disability using an exhibit. There is enough evidence to show that Penney gave Samuels an unjustified retirement notice and that he is liable for discrimination, contrary to Section 8 of the Code.
Judicial review is a very important aspect of the administration of institutions. The judicial review helps in keeping institutions within the bounds of the legitimate use of power. There are various ways in which an institution may be subjected to judicial review. They include procedural fairness, improperly discriminatory acts, omissions, decisions, or recommendations, irrelevant decisions, and oppressive decisions. Samuels can argue on these grounds to show that Penney abused his power by unjustifiably giving her a premature retirement notice and an unreasonable retirement package. Samuels can alternatively argue using these grounds to seek her reinstatement and damages.
References
Code of Administrative Procedure. (2003). Public Report No. 42 to the Legislative Assembly of British Columbia. Ombudsman British Columbia.
Fenwick, K. (2007). Practice Essentials for Administrative Tribunals. Saskatchewar Ministry of Justice and Attorney General.
McDougall v Superior Building Maintenance (N0. 7) 2008 BCHRT 353.
Saroya v. Hudson’s Bay Company, 2012 BCHRT 306 (CanLII).
The British Columbia Human Rights Code, [RSBC 1996] CAP 201.
The Ombudsman Act, [RSBC 1996] CAP 340.
Taylor, G. (2008). BCCAT Adjudicators Manual. BCCAT. 108