Date Issued: May 17, 2013 File: 9969 Indexed as: Moutal v. School District No.

38, 2013 BCHRT 132 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 B E T W E E N: Violeta Moutal COMPLAINANT A N D: School District No. 38 (Richmond) RESPONDENT

REASONS FOR DECISION APPLICATION TO DISMISS: Section 27(1)(b), (c), and (g)

Tribunal Member: Counsel for the Complainant: Counsel for the Respondent:

Norman Trerise Rose Chin Chris E. Leenheer

I [1]

INTRODUCTION Violeta Moutal filed a complaint under the Human Rights Code alleging that

School District 38 (Richmond) (the District) discriminated against her in the area of employment on the basis of a mental disability. [2] She alleges that the District failed to accommodate her in their decisions and

actions related to her attendance issues and difficulties with working in the Districts administrative offices. [3] The District denies that they discriminated against Ms. Moutal and have applied

to dismiss her complaint pursuant to ss. 27(1) (b), (c), (d) and (g) of the Code. II [4] FACTUAL BACKGROUND TO THE COMPLAINT Ms. Moutal has been employed by the District since September 14, 1989. She has

worked as a Secretary-District Administrator for the District since April 29, 1996. The District says that this role is largely secretarial. She performs many duties including booking appointments for academic advisors and adult students, setting up English assessments on the computer system and performing data entry of assessment results. She is routinely required to interact with students. [5] The clerical employees of the District, including Ms. Moutal, were represented by

CUPE, Local 716. [6] Ms. Moutal took a medical leave of absence in March of 2007 due to a mental

health issue. She received long-term disability benefits (LTD) commencing in July of 2007. She was ultimately cleared to return to work in September of 2007 by her psychiatrist. Medical information provided at that time fully cleared her to return to work and did not suggest that she required any accommodation. [7] Ms. Moutal maintained her role as Secretary-District Administrator upon her

return from her leave of absence. [8] Ms. Moutals position at the District Office was no longer available when she was

returned to work on or about November 1, 2007 and accordingly, the District sought an

alternative position for her elsewhere in the District. It was determined that there was a position available for her in the Continuing Education Department. [9] Ms. Moutal was placed in a temporary position in a support role in Continuing

Education and eventually for the Adult Secondary School Completion Program, reporting to the Director of Continuing Education. She remained classified as Secretary-District Administrator. The majority of her work was carried out at the Sea Island Adult Learning Centre (Sea Island). [10] [11] There was no direct supervisor for Ms. Moutal at the Sea Island location. In discussions with Ms. Moutal prior to placing her in the Continuing Education

Department, it became evident that she was resistant to working at Sea Island in part because of a history between herself and another employee with whom she would have to work at Sea Island. [12] A meeting was held on December 17, 2007 involving representatives of the

District, the President of CUPE, Local 716, and Ms. Moutal. At that meeting, Ms. Moutal expressed concern regarding a permanent placement at Sea Island in part because one of the individuals she would be required to work with and she did not get along. In response, Don Kaltenbach, District Administrator Human Resources for the District, pointed out that it would be difficult for her to return to work in the District Office because of past history in an attempt to persuade her that the change would be in her best interest. Ultimately, Ms. Moutal accepted the permanent position at Sea Island. [13] When Ms. Moutal returned to work, the District was aware that she scheduled

weekly visits with a medical professional during her lunch breaks on Wednesdays. The District says there was no communication with them that these visits related to a mental disability. In November of 2007, an arrangement was made which allowed Ms. Moutal to take a longer lunch on Wednesdays and in exchange take shorter lunch breaks on Tuesdays, Thursdays and Fridays. [14] Mr. Kaltenbach deposes that as District Administrator Human Resources, his

duties include responsibility for posting and filling staff positions, negotiating and applying the Collective Agreement and dealing with grievances under the Collective

Agreement in connection with support staff. He is authorized to maintain employee personnel files on behalf of the District. [15] Michael Khoo is the Director of Instruction Continuing Education Richmond

School District and has been serving in that capacity since April of 2007. He oversees the various District Continuing Education Programs for adults and school-aged students. The District offers personal interest courses, Adult English as a Second Language courses and settlement programs. In his role, he manages a varying number of staff over three to four separate locations. [16] It immediately became evident that Ms. Moutal was having difficulty attending

between the normal work hours of 8:30 a.m. and 4:30 p.m. and Mr. Khoo became aware of that fact. He spoke to Ms. Moutal on several occasions emphasizing that she was to attend work at 8:30. She was directed to inform Mr. Khoo if she was going to be late for work. [17] Further, Ms. Moutal was required to visit her physician on Wednesdays. She

asserts that she advised Mr. Khoo that she was visiting her psychiatrist. Mr. Khoo says otherwise. What is agreed is that she was provided with an extended lunch on Wednesdays to facilitate these appointments and a truncated lunch period on Tuesdays, Thursdays and Fridays to compensate. [18] Over time, Mr. Khoo became aware of her tardiness in part because of reports

from Ms. Moutals alienated co-worker. Mr. Khoo attempted to manage her attendance. He spoke to Ms. Moutal on several occasions to clarify the expectation that she was to attend at work at 8:30 a.m. and that in exchange for the longer lunch hour on Wednesdays, she was to take abbreviated lunches on other weekdays. [19] In response to the Districts concerns, Ms. Moutal advised Mr. Khoo that she was

struggling to attend by 8:30 a.m., expressed concern about being micro-managed, and took issue with the fact that her co-worker was reporting her absence and other absences were being managed by Mr. Khoo. She advised that she never short-changed her employer because she would work past 4:30 on days when she arrived late. She did not advise that her tardiness was attributable to any mental disability. She does say that she had specifically told Mr. Khoo that on Wednesdays she attended with her psychiatrist. 3

[20] [21]

Over time, she continued to be tardy and rarely alerted the District to her lateness. At some point prior to May of 2010, Ms. Moutals work schedule was modified to

allow for a 9:00 a.m. start and 5:00 p.m. finish to her work days Monday through Friday. [22] Despite these modifications to her schedule, Ms. Moutal continued to have

difficulty attending work on time. [23] It is common ground that when Mr. Khoo was attempting to manage Ms.

Moutals attendance, at no point did he inquire whether there were medical considerations affecting her ability to attend work on time. [24] Ms. Moutal states that on the morning of April 28, 2010, when she arrived at

work, Mr. Khoos vehicle was in the parking lot but all of the lights in the building were off. She turned the lights on and immediately saw Mr. Khoo sitting in the dark by himself in the office he occupied when he was at Sea Island. Mr. Khoo questioned Ms. Moutal about her attendance and Ms. Moutal deposes that his attitude was hostile such that she cried and pleaded with him to understand her circumstances. She says that Mr. Khoo was unresponsive and left and that on May 4, 2010, she received a letter from him advising that an investigation is going to take place regarding her tardiness. [25] Mr. Khoo paints quite a different picture saying that in order to gain access to Ms.

Moutals office at Sea Island, it is necessary to either walk through an unlit storage room or through a classroom. He says he chose to walk through the storage room which explains why he emerged from the dark. He acknowledges that there was a discussion with respect to her tardiness and says that he stressed his concern that she was to alert him when she was late for work and point out that she had not done so on this occasion. He says that during the various meetings and discussions he had with Ms. Moutal over time regarding her attendance at work, she never once indicated she had difficulty attending work on time because of a mental disability. [26] An investigation was conducted into Ms. Moutals tardiness in 2010. During the

meeting related to the aforementioned investigation, Ms. Moutal explained that the mornings continued to be problematic for her and requested a change in her hours to

allow her to work from 9:30 a.m. to 5:30 p.m. She says that Mr. Kaltenbach refused the request without exploring it with her. [27] The meeting which took place on May 13, 2010 was followed up by a letter of

expectation from Mr. Kaltenbach setting out the expectation that Ms. Moutal was to be at her desk at 9:00 a.m., her hours of work and the arrangement with respect to lunch breaks. It stated that if she needed to deviate from that schedule for any reason she was to get prior approval from Mr. Khoo and if she was going to be late for the start of her shift or late from returning from her relief break or lunch break for any reason, she was required to notify Mr. Khoo by telephone as soon as she arrived at her workplace. [28] Mr. Khoo asserts that, while the co-worker did on occasion inform the District

that Ms. Moutal was not at work, the District did not enlist the co-worker to provide information to assist them to supervise the Complainant. She was never requested to monitor Ms. Moutals absences from work. [29] Mr. Khoo deposes that he requested all support staff communicate with him with

respect to their absences or tardiness and attaches to his Affidavit a January 9, 2009 memorandum to staff at Sea Island and perhaps other locations, evidencing that fact. [30] Ms. Moutal was required to attend another meeting on March 23, 2011 to discuss

her tardiness issues. She was advised that she was entitled to be represented by a Union representative and the Union was copied on the letter advising her of the meeting. Ms. Moutal suggests that Mr. Khoo expressed his uncertainty respecting the accuracy of certain dates that he suggests she was tardy attending work. Mr. Khoo, on the contrary, says that he advised her that the list was not complete and that there were other dates where he believed she had been late for work but he could not verify. He says the dates discussed in the meeting were accurate. The dates discussed were five in number in the months of February and March 2011. [31] Subsequently on April 26, 2011, a meeting was held attended by Mr. Kaltenbach,

the President of the Union and Ms. Moutal. At the meeting, Mr. Kaltenbach advised Ms. Moutal that he wanted her to report to the District Administration Office commencing Monday, May 2, 2011. Mr. Khoo deposes that Ms. Moutal did not indicate that she suffered from a mental disability that impaired her ability to meet the Districts 5

expectation with respect to attendance and timeliness at that meeting. Neither did she indicate that a mental disability prevented her from working at the District Office. He says that he didnt become aware of Ms. Moutals health concerns until April 27, 2011 when she provided a letter from her psychiatrist to Mr. Kaltenbach which was subsequently shown to him. [32] That letter states, among other things:

In the course of therapy, Ms. Moutal made a remarkable recovery from a severe mental breakdown in 2006. Following a medical leave of absence she was able to successfully return to full time-work. For the past three years, one of Ms. Moutals main ongoing challenges revolved around her work situation. As a result of that, some of her therapy sessions focused on helping her deal effectively with the conditions of her employment, work environment and the nature of her communication with her supervisor. Ms. Moutal is currently under considerable stress and has endured significant hardship due to her supervisors repeated official allegations regarding Ms. Moutals hours of work. Ms. Moutal informed Dr. Minhas recently that as a result of these contentions, she has been subjected to disciplinary actions and has been directed to relocate her office to the Main Administration Building so that she can be better supervised and monitored. In my opinion, this move could be detrimental to Ms. Moutals mental health and well-being, due to past work-related trauma in that specific work location and her tenuous working relationship with her current supervisor. I wish to note that Ms. Moutal takes psychotropic medications as part of her therapy, which cause adverse effects that mostly interfere with her functioning in the morning. I understand that the medication created a sluggish state in the mornings, which led to her being late to work. I strongly recommend that Ms. Moutal be given special consideration for her occasional morning tardiness. It will be beneficial if her hours are more flexible and can better meet her needs.

 Similarly, I strongly recommend that Ms. Moutal remain at her current work location at Sea Island Learning Centre and receive the support that she needs to fulfill the duties of her work there. I strongly recommend not to transfer her back to the same environment where she experienced her mental breakdown in the past. [33] Ms. Moutal deposes that the suggestion of returning me to the Administration

Building caused me severe stress and anxiety. I had an overwhelming fear of returning to work to a building where I intended to end my life. I genuinely believe working at that place on a daily basis posed a threat to my health and safety. [34] After receiving the psychiatrists letter of April 27, 2011, Mr. Kaltenbach

corresponded with Ms. Moutal requesting further information from her psychiatrist. The psychiatrist responded with a letter dated May 22, 2011 in which he stated: Even though Ms. Moutal was in full remission by the time of our previous communication had taken place (see my letter from April 27, 2011) currently there is a severe regression in her condition and she is at high risk for developing a full blown relapse of her symptomatology. While experiencing full remission of her condition Ms. Moutal is able to perform the required duties or administrative job at the required level. [35] In addition, the letter from the psychiatrist advises that when Ms. Moutal

experiences full remission from her illness, her condition doesnt prevent her from attending her job on time. It also advises that the psychotropic medication she is prescribed increases the degree of fatigue she experiences in the mornings and that those medications are a major factor in her difficulties in arriving at her job at the required time. [36] The letter also says that the prognosis for Ms. Moutal to achieve a full remission

is a very positive one provided adaptations for her condition exist. It further says there is no reason to assume that with the proper adaptations she will not be successful in regaining her normal function. I understand that with the term adaptations he is referring to accommodations. [37] The letter goes on to state that when Ms. Moutal is in full remission, her ability to

work at the Richmond School Board Administration Department is returned to normal. It

further states that her future exposure to the building (the District Administration Office) and to the people in it severely increases the risk for a relapse. [38] The psychiatrist also says that Currently, Ms. Moutal has unfortunately

redeveloped severe signs of relapse of her anxiety episodes. He also says that her symptoms can result from a medical condition as well so she is currently being investigated by her family physician to rule out any medical condition. He says that it is quite possible that her symptoms are part of her relapse of her anxiety condition relating to the recent stress over the last couple of months around her employment. With the accommodation she needs and the support I am confident she will get from her employer, Ms. Moutal is likely to regain full remission and will be able to perform the full duties of her job. He makes it clear that she should not return to the District Administration Office. [39] Mr. Kaltenbach responded that the letter from her psychiatrist provides

insufficient information to support a conclusion that she is unable to return to work at the District Administration Office. Further, Mr. Kaltenbach says that she is to return to work at the District Administration Office on June 30, 2011 and that if she refuses to report to work then she will be required to undergo an independent medical examination (IME) by a psychiatrist of the Districts choosing. [40] The Union intervened. Ultimately, it was agreed that Ms. Moutal participate in an

independent medical examination (IME) limited to the issue of her need for accommodation. [41] Ms. Moutal says that she informed Mr. Khoo that she would be taking a vacation

in August of 2011 and that Mr. Khoo responded that he needed to confirm that this request would be feasible. Ms. Moutal says that this is another example of discrimination. The District responds that Mr. Khoo needed to confirm that granting Ms. Moutals vacation request would not compromise the available manning thus creating a cost to the Continuing Education Department. Ultimately, Ms. Moutals vacation request was approved. [42] In August of 2011, a psychiatrist retained by the School District to provide an

IME of Ms. Moutal provided his opinion which disagreed with the material provided by 8

Ms. Moutals psychiatrist and can be summarized as stating that Ms. Moutal, at the time of his examination, did not present with any clinically significant

psychological/emotional disturbances or cognitive deficits which would affect her ability to perform her current occupational duties, that her mental health issue is in remission and has nothing to do with her difficulties attending work on time. [43] The District accepted the opinion of the psychiatrist they had retained and on

September 6, 2011 confirmed their decision to reassign Ms. Moutal to the District Office effective September 12, 2011 and reiterated the expectation that she attend work between the hours of 9:00 a.m. and 5:00 p.m., take one hour for lunch and two 15-minute relief breaks during her shift, thereby effectively deviating from the accommodated lunch arrangement which had been in place previously. [44] The District received a letter from Ms. Moutals psychiatrist expressing serious

concern respecting their decision and reiterating his strong recommendation that they refrain from requiring Ms. Moutal to report to work at the District Administration Office. He states: An acute exposure of Ms. Moutal to the place which was a scene of her last major breakdown puts her at a very high risk of her relapse of her symptoms and might destabilize her mental health leading to another collapse including the risk for re-emerging of self-harm ideations and actions. I believe that putting a hold on such abrupt directive and moving to a process in negotiating the best work scenario for Ms. Moutal would turn a very dangerous situation to a much safer one where both Ms. Moutals and the RSBs interests are secured and will support her gainful and worthy employment within the RSB. I emphasize that currently Ms. Moutal is experiencing more acute stress related symptoms that warrant a possible mental collapse given that for the past several months she has endured a painstaking process that she feels has threatened integrity, job security and livelihood and it would likely have a detrimental effect on any individual, let alone on Ms. Moutal whose medical history warrants the minimization of stress causing anxiety and worry. [45] stating: On the same day, Mr. Kaltenbach wrote, not to the psychiatrist, but to Ms. Moutal

In our view, the letter of Dr. Minhas dated September 9, 2011 does not provide us any basis upon which to change our decision to require you to work at the District Office. We accept the opinion of Dr. Levin which is that you do not suffer from any present mental condition that would prevent her from returning to work at the District Office. You are required to report to the District Office on Monday, September 12th. If you intend to take sick time we will require a full medical assessment from your doctor outlining your medical condition, why you were unable to report to work at the District Office, any measures the employer may undertake to assist you in your return to work at the District Office, as well as your prognosis for returning to full time duties at the District Office. We note that we reserve our right to require additional medical information if required, as well as to seek any independent review of such medical information to confirm an inability to attend work. Any requests for other unpaid leaves will be considered by the Administration. [46] Ms. Moutal responded by advising on September 9, 2011 that she would be taking

a medical leave of absence effective Monday, September 12th. [47] Dr. Minhas provided a letter dated September 14, 2011 supporting Ms. Moutals

sick leave. [48] Mr. Kaltenbach responded to the situation with a letter dated September 15, 2011

addressed to Ms. Moutal in which he stated: This is a formal notice that you are currently on an unsubstantiated leave from work. We require you to immediately provide us with medical documentation explaining your current absence from work. In addition, depending on the medical documentation we may request further medical information and/or may consider your current absence to be unpaid. [49] Mr. Kaltenbach in the same letter suggested that, in the circumstances, the District

would be required to explore the option of recruiting another instructor and indicated that if Ms. Moutal was to retain her Continuing Education position she needed to notify the District by September 20th that she would be available on or before September 26th to resume her regular duties at the District Administrative Office. [50] That communication was followed up by another letter to Ms. Moutal from Mr.

Kaltenbach dated September 21, 2011 acknowledging receipt of Dr. Minhas letter and reiterating that the IME:

10

Clearly indicates that you are not suffering from any medical condition preventing you from reporting to work at the Administration Office. and We do not accept Dr. Minhas letter of September 14, 2011 to support a claim for any continued absence or payment of sick leave benefits. If you do not return to work by Monday, October 3, 2011 we will review your continued employment with the School District. [51] At this point on September 22nd, Ms. Moutals general practitioner provided a

note that said she was unable to attend work for four to six weeks for medical reasons. Perhaps unsurprisingly, the District did not feel that the certificate from the general practitioner provided sufficient information on which to change their position. [52] Accordingly, Ms. Moutals general practitioner wrote a letter indicating that as of

September 22, 2011, Ms. Moutal was demonstrating symptoms of a mixed mood disorder worsening in the face of work pressures she perceived as unfair. [53] On October 3, 2011, Mr. Kaltenbach emailed Ms. Moutal indicating that her

general practitioners letter of September 28, 2011 did not provide the District with sufficient information on which to change their current position on her request for sick leave. It concludes with the phrase: If you do not report to work at the Administration Office after four weeks, or sooner, we will review your employment with the School District, including determining whether you have abandoned your employment. [54] Finally on October 5, 2011, Dr. Minhas wrote to Mr. Kaltenbach emphasizing that

his note of sick leave based on her mental state as presented on September 14th as well as the general practitioners note of sick leave based on her examination of Ms. Moutal on September 22nd were both addressing Ms. Moutals current mental health condition which had significantly deteriorated since the time she was seen by Dr. Levin, the independent psychiatrist. Further, he states that a relapse of Ms. Moutals anxiety/mood symptoms had in fact occurred and states that the interaction between the District and Ms. Moutal in his opinion is taking a severe toll on Ms. Moutal and is negatively affecting her mental well being.

11

[55]

On September 27, 2011 a report was issued by an investigator retained by the

District to investigate an allegation of harassment of Ms. Moutal by Mr. Khoo (the Investigation Report). The Investigation Report dealt with some of the issues before the Tribunal, including Mr. Khoos micro-management of Ms. Moutal, the use of a coworker to advise of tardiness, the incident of Mr. Khoo sitting or emerging from the dark, an inappropriate comment by Mr. Khoo and the delay in approving Ms. Moutals vacation. It concluded that harassment had not occurred and that the Collective Agreement had not been violated. It also specifically stated that Although there are references in this report to the issue of accommodation for a medical condition, this investigation was limited to an examination of the complaint of the harassment made by the Complainant against the Respondent. The issue of duty to accommodate has not been explored by this investigation. III THE DISTRICTS APPLICATION TO DISMISS

Section 27(1)(g) Timeliness of the Complaint [56] The District submits that all conduct occurring prior to April 26, 2011, being six

months prior to October 26, 2011 (the date that the Complaint was filed) are late filed. [57] The District submits that none of the alleged acts of discrimination which

occurred prior to April 26, 2011 constitute a continuing contravention because none of the incidents alleged could be a violation of the Code and because there is no similarity between the events which occurred post April 26, 2011 and those which occurred earlier. The District says the only events which occurred post April 26, 2011 are the decision of Mr. Kaltenbach to reassign Ms. Moutal to a different office building, the subsequent back and forth between the parties with respect to medical documentation, and Ms. Moutals assertions with respect to the scheduling of her vacation. [58] In the alternative, the District says that the allegations relating to Mr. Khoos

impugned conduct are not supported by any nexus between Ms. Moutals assertions that Mr. Khoo was micro-managing and supervising her too closely and her alleged mental disability. They point to medical documentation that her medical condition was in full remission as of September 2007 and remained in full remission until 2011. They also say

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that there is no similarity in substance or pattern to the alleged conduct of Mr. Khoo during the six-month time limit and those that were filed out of time. They therefore submit that none of the allegations concerning Mr. Khoos conduct are part of a timely continuing contravention. [59] They also say that the Tribunal should not exercise its discretion to accept the out

of time allegations and that they should therefore be dismissed. For reasons that will become evident, I do not articulate their arguments in this regard. Section 27(1)(b) No Contravention of the Code [60] The District submits that the Complaint should be dismissed in its entirety on the

basis that the acts or omissions alleged in the Complaint allege facts which, even if proven, do not constitute a contravention of the Code. They say this because they say there is no evidence of a mental disability sufficient to satisfy Ms. Moutals requirement to prove a prima facie case, no evidence of adverse treatment of Ms. Moutal by the District, and no nexus between any adverse treatment that the Tribunal might find and Ms. Moutals mental disability (should the Tribunal disagree with their submission that there is insufficient evidence to establish a mental disability). Section 27(1)(c) No Reasonable Prospect of Success [61] The District says that the Complaint should be dismissed under s. 27(1)(c) on the

basis that there is no reasonable prospect that the Complaint will succeed. [62] The School District has compartmentalized its submissions with respect to s.

27(1)(c). I will utilize the same subheadings. Allegations Against Mr. Khoo [63] The School District submits that the allegations that Mr. Khoo was rude to Ms.

Moutal, micro-managed her attendance at work, used information from co-workers regarding Ms. Moutals absences or required Ms. Moutal to report her tardiness to him do not provide a basis upon of which a finding of discrimination can succeed. [64] The School District submits that Mr. Khoo was unaware of any medical condition

Ms. Moutal may have been suffering from. They say it was his understanding that she was in full remission and that she had been cleared to work without accommodation. 13

They say that Mr. Khoo denies supervising Ms. Moutal too closely and that Ms. Moutal never indicated she was suffering from a mental disability which caused her to be tardy. [65] The School District submits that Dr. Minhas reports are directly contradicted by

the independent expert retained by the parties. [66] The School District submits that all support staff were required to email Mr. Khoo

respecting intended absences and tardiness. He says the same applies to requiring staff to work at varying locations when staffing levels required it. [67] The School District further states that there is no nexus between Mr. Khoos

delayed approval of Ms. Moutals vacation request and her mental disability. They say the vacation was approved, after a delay to allow Mr. Khoo to ensure that his department would have sufficient staffing levels in Ms. Moutals absence. [68] The School District submits that these allegations by Ms. Moutal amount to

nothing more than allegations of harassment which have been independently investigated and found to be unsubstantiated. The Allegation Regarding the Decision to Relocate Ms. Moutal [69] The School District says that the decision to relocate Ms. Moutal to the District

Administration Office was arrived at in conjunction with the Union because she was unsupervised in the Sea Island position and she had breached the letter of expectation provided to her. [70] The School District says that at the time the decision was made to relocate Ms.

Moutal to the District Office there was no indication she was suffering from a mental disability. They say in any event that their conduct was not related to Ms. Moutals medical history or alleged disability. Allegations Regarding Acceptance of Ms. Moutals Medical Evidence [71] The School District submits that the medical evidence which Ms. Moutal

provided to them was internally inconsistent, did not indicate she was suffering from a disability at the time, and did not suggest that she had an illness which required accommodation. They say that, as a result, the IME was carried out and resulted in a clear

14

and conclusive determination that Ms. Moutal was not suffering from a mental disability and did not require accommodation. [72] The School District says that it was in the aforesaid context that they repeatedly

rejected the completely uninformative medical notes provided by Ms. Moutal. [73] The School District says that once Ms. Moutal provided medical information

which confirmed that she was ill and required a leave of absence they began the process of approving her sick leave. [74] The School District says that Ms. Moutal has yet to provide adequate medical

documentation to support her assertion that she cannot work under supervision or in the District Administration Office. They say that their requests for additional medical information regarding her unsubstantiated leave of absence and her expected return to work were a reasonable request from a reasonable employer to an employees extended leave of absence where medical documentation has been sparse, vague and conflicting. [75] The School District says that it was entitled to delay in approving Ms. Moutals

sick leave until it satisfied itself of her medical condition. [76] The School District submits that the delay in approving Ms. Moutals sick leave

was caused in part by Dr. Minhas request to deal with the District directly, and by the grievance process because the School District had to have its actions approved by the Union. IV [77] THE POSITION OF MS. MOUTAL RESPECTING THE APPLICATION TO DISMISS The District set out, as a preliminary matter, a concern that Ms. Moutal may have

obtained consent to an extension to file her response submission through a misrepresentation. The District never actually opposed the late filing of the response. Ms. Moutal appears to have adequately addressed the issue under separate communication dated March 20, 2013 and the District did not respond. In view of the fact that no application is in front of me from the District on the issue, I will consider all submissions in my analysis of this application.

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Section 27(1)(g) Timeliness of the Complaint [78] Ms. Moutal says that she was discriminated against due to her mental disability

because the District failed to accommodate her on the basis of that disability which contributed to her pattern of tardiness at work and made her unable to work in the District Office. She says, further, that the District ought to have accommodated her disability by engaging in a process of inquiry prior to taking action with adverse consequences to her and ought to have chosen to minimize workplace stressors for her that similarly had adverse consequences. [79] She says that she provided medical documentation from her treating psychiatrist

which supported her need for accommodation and that instead of acceding to the request of accommodation, the District proceeded with a process of distrustful micromanagement and progressive discipline. She says the Districts approach culminated in the extreme measure of requiring that she relocate to the District Administrative Office where the incident which resulted in her extensive absenteeism for medical reasons prior to her return in 2007 had occurred. [80] Ms. Moutal says that the allegations pre-dating April 26, 2011 are part of a

continuing contravention and that, following the concept of a liberal and purposive interpretation required in assessing a continuing contravention, the intent of the Code is not to impose unreasonably strict adherence to dates to reject the Complaint on the basis of timeliness, but rather the Tribunal must consider the overall course of conduct alleged in determining whether a complaint falls within the time limitations. [81] Ms. Moutal says that all of the Districts disciplinary actions are part of an overall

continuous course of action that Ms. Moutal alleges is in contravention of the Code. Section 27(1)(b) No Contravention of the Code Disability [82] Ms. Moutal submits that the Districts position that the acts or omissions alleged

in the Complaint do not constitute a contravention of the Code because Ms. Moutal has failed to establish that she suffered from a disability during the relevant timeframe is not consistent with human rights jurisprudence that encourages Tribunals to adopt a broad

16

and liberal approach in applying the Code. In particular, she says that it has been determined by the Supreme Court of Canada that the duty to accommodate applies to ongoing disabilities. In that regard, she points to Morris v. B.C. Rail, 2003 BCHRT 14 at paragraphs 205 to 209 where the Tribunal points out that the Supreme Court of Canada has held that disability includes persons who have overcome all functional limitations and who are limited in their everyday activities only by the prejudices of stereotypes that are associated with a particular ground. Ms. Moutal says that conditions such as congenital and malformations, asthma, speech impediments, obesity, acne, and being HIV positive, even when they do not result in a functional limitation, come within the concept of disability, Morris. [83] Ms. Moutal therefore urges that the term disability should not be so strictly and

narrowly defined to only apply to present disabilities. She urges that to do so would not be consistent with the intent and purposes of the Code. [84] Ms. Moutal says that given her history, the information that was made available to

the District, and her complaints to them, as well as the letters provided by Dr. Minhas, there is prima facie evidence of a disability. She points out that the Districts duty to accommodate does not necessarily end once an employee recovers from a disability and returns to work. She urges that the District cannot act in ignorance of Ms. Moutals limitations or potential limitations. [85] Ms. Moutal says that the District is attempting to compartmentalize her disability,

which is not only a superficial approach but is an approach that was expressly rejected by the Supreme Court of Canada in McGill University Health Centre (Montreal General Hospital) v. Syndicat des employs de lHpital gnral de Montral, [2007] 1 S.C.R. 4. [86] Ms. Moutal says that the District had sufficient information that they were under a

duty to inquire respecting whether her difficulties were at all related to her disability. [87] Ms. Moutal submits that once a clear request for accommodation was made

through Dr. Minhas letter of April 27, 2011, the District had an obligation to meaningfully engage in a cooperative process with her which they failed to do.

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[88]

Ms. Moutal further says that the District should have given weight to Dr. Minhas

opinions and sought a specific response to the independent medical physicians conclusions but it chose not to. She says that the District cannot chose to rely solely on information helpful to its case in order to make its decisions. She points out that Dr. Minhas was her treating psychiatrist and he should have been provided with the opportunity to explain his opinion and respond to the IME. She further points out that the independent medical examination was in error when it states that her medication would not be expected to cause Ms. Moutals reported morning psychological and physical disturbance and provides an excerpt from the Compendium of Pharmaceuticals and Specialties which expressly states that the medication in question includes side effects such as insomnia, somnolence and fatigue. [89] Ms. Moutal further says that the fact that she did not initially request

accommodation for her tardiness does not justify the Districts failure to accommodate. It is pointed out that the need for accommodation does not rest solely on the Complainant but rather is a process where both parties bear responsibility. Nexus [90] Ms. Moutal states that the nexus is clear. She says that she suffered from a severe

mental disability. She made a recovery from a mental breakdown and the debilitating aspect of her condition appeared to be in sufficient remission to allow her to work. She says however that she was still sensitive to stressors which could trigger a relapse and reemergence of her major depression. She points out that the District, during a meeting of October 22, 2007, demonstrated awareness that the previous workplace could have consequences to her well being in its attempt to justify her relocation to the Sea Island office. [91] Ms. Moutal says the symptoms of stress and anxiety reported by her and

supported by her psychiatrist cannot be viewed in isolation so as to dismiss their relationship to a disability. She says that the District and, in particular, Mr. Kaltenbach and Mr. Khoo should have been aware of her mental disability based on the information that had been presented to them.

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[92]

Ms. Moutal submits that the allegations demonstrate a consistent refusal to

accommodate her on the basis of her disability as a whole. [93] Effectively, Ms. Moutal is stating that the actions of the District through Mr.

Kaltenbach and Mr. Khoo demonstrated a failure to accommodate which has a clear connection to her mental disability and that the nexus is therefore obvious. Section 27(1)(c) No Reasonable Prospect of Success [94] Ms. Moutal states that, taking her medical history into consideration, the

Complaint goes well beyond the scope of an ordinary workplace dispute. She says this Complaint is about a person who has a lengthy background of a serious mental disability that has resulted in a series of sick leaves and an eventual breakdown in the workplace, all of which was known to the School District. She says that the School District was aware that, upon her return to work, she continued with her therapy and her medications and that those facts put the School District on notice that some degree of ongoing disability was likely present. [95] Ms. Moutal says that the School District failed to seek relevant medical

information when confronted with her tardiness and that the School District should have been sensitive to, not only the action it was taking, but also to how she responded to pressure and stressors in the workplace. She refers specifically to the School Districts handling of the conflict with her co-worker, the reliance on her co-workers, and other third parties, reporting to Mr. Khoo, the communication of her tardiness to other departmental staff, the disclosure to her co-worker of Ms. Moutals visits to her psychiatrist, and the heavy-handed disciplinary steps taken. [96] Ms. Moutal points out that Mr. Kaltenbachs assertions that he treated her no

differently than he would have treated any other District employee and Mr. Khoos assertions that he treated all staff in an equitable manner, reveals a lack of understanding in the School District of the nature of its duty to accommodate. [97] Ms. Moutal says that when Dr. Minhas provided the School District with his letter

of April 27, 2011, the School District had clear notice that her tardiness was related to the medication she was taking.

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[98]

Ms. Moutal asserts that, from the time she was placed in the Continuing

Education Department, the evidence indicates that the School District was engaged in a hostile campaign towards her where either no tolerance was going to be exercised, or no support would be given for the accommodation she required on the basis of her disability. [99] Ms. Moutal says that in September 2011 when she sought medical leave the

School District demonstrated an obstinate attitude in its handling of the situation. She says the School District deliberately ignored the medical information provided by her, causing her emotional and financial hardship, and again demonstrating no effort to engage in a process of accommodation. [100] Ms. Moutal submits that the School Districts conduct actually indicates a degree of malice as it refused to accept her medical notes from two physicians. [101] Ms. Moutal points out that the internal investigation was pursuant to the Collective Agreement provisions relating to general harassment/sexual harassment. Ms. Moutal says that the investigators findings are not determinative of her Complaint. [102] Ms. Moutal submits that, in light of the two diametrically opposed versions of the incidents relating to Mr. Khoos conduct, the School Districts conduct as a whole, and the significance of the contradictory and medical opinions, it cannot be said that the Complaint has no reasonable prospect of success. V THE SCHOOL DISTRICTS REPLY TO MS. MOUTALS RESPONSE

Submissions re Section 27(1)(g) [103] The School District repeats that the timely allegations are not of the same nature as the earlier allegations that Ms. Moutal was micro-managed by Mr. Khoo. They say, accordingly, there is no basis for finding a continuing contravention. [104] The School District takes issue with Ms. Moutals contention that the School District engaged in a successive course of disciplining her and refusing her request for accommodation. They point out that, despite her tardiness and long lunch breaks, she was not disciplined but merely provided with a letter of expectation. They say, further, that they allowed Ms. Moutal to modify her lunch schedule, modify her work hours and

20

sought medical information in connection with her assertion that she could not be moved back to the District Office. Further, they say that Ms. Moutals suggestion that they treated her in a hostile manner by taking disciplinary action seriously misconstrued events. They say that Ms. Moutal did not, despite multiple opportunities, provide an explanation which suggested that her tardiness in general and inability to work her scheduled hours were connected in any way to any protected ground. Submissions re Section 27(1)(b) [105] The School District submits that the arguments of Ms. Moutal that she was suffering from a disability and that the School District ought to have known or inquired about that disability are ill-founded and that the case law advanced by Ms. Moutal in support of her position does not do so. [106] The School District further says that it acted in an informed manner, given the information that had been provided to it. They say that Ms. Moutal was given numerous opportunities to explain her tardiness, extended lunch breaks and departures from work without permission but never related them to a mental disability. They further say that she was fully cleared to return to her duties and that the subsequent medical information provided by her psychiatrist did not clearly state that she was suffering from a mental disability which prevented her from working at the District Office. [107] They further state that the medical information provided by Ms. Moutals psychiatrist contained nothing which definitively indicated that she was suffering from a mental disability or provided any explanation for her pattern of taking extended lunch breaks, leaving work without permission and failing to inform Mr. Khoo of her absences or changes in schedule. [108] The School District stresses that Ms. Moutal agreed to the IME and to be bound by the results of the independent experts assessment. They dispute that they ought to have rejected the independent experts opinion in light of Dr. Minhas letter in response to the report. They say, in fact, that Dr. Minhas September 9, 2011 letter isnt a response to the IME since it states that Dr. Minhas has no knowledge of the content of the IME. They say that they chose to give weight to the medical evidence of an independent medical expert which they were entitled to do. 21

[109] The School District submits that there were no obvious signs that Ms. Moutal may have been suffering from a mental disability, and that, although she was given numerous opportunities to explain her tardiness, extended lunch breaks and general attendance problems were related to a mental disability, she chose not to do so. [110] The School District relies on case law which essentially determines that where there is no factual support of a link between a disability and adverse repercussions experienced by the complainant, the complaint must be dismissed. [111] The School District submits that an excerpt from the Compendium of Pharmaceuticals and Specialties presented by Ms. Moutal through an Affidavit of a legal assistant is hearsay and cannot be relied upon to refute the expert evidence of the independent medical expert respecting the side effects of Zoloft. Accordingly, the School District submits that Ms. Moutals arguments respecting the validity of Dr. Levins opinions respecting the impact of Zoloft should be ignored. Submissions re Section 27(1)(c) [112] The School District disputes that conflicting affidavit evidence prevents a complaint from being dismissed on a s. 27 application. [113] The School District also takes issue with Ms. Moutals characterization that it was aware of a lengthy background with a serious mental disability resulting in a series of sick leaves and an eventual breakdown in the workplace. They also dispute awareness that upon her return to work in her new position, Ms. Moutal continued with her therapy and her medications in order to manage her symptoms and be functional. The School District says that Ms. Moutal was never working under an accommodation upon her return to work. They say that the attempts to alter Ms. Moutals work schedule were to assist her with attendance issues, that she was spoken to on numerous occasions regarding tardiness, excessive lunch breaks and her pattern of leaving work without permission and failing to notify her supervisor of changes in her schedule. They say that aside from receiving a letter of expectation, the Complainant was not subject to any disciplinary response in connection with her performance issues.

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[114] The School District suggests that Ms. Moutal, if she did in fact require an accommodation, was under a duty to participate in the process. They take the position that she did not. VI ANALYSIS AND DECISION

[115] I have read all of the evidence and submissions submitted by the parties to this Complaint. It is not necessary for me to address all of that material and I will address only that which I consider to be necessary to my decision. TIMELINESS OF THE COMPLAINT Section 27(1)(g) The Law [116] Section 22 of the Code governs the time limit for filing a complaint. (1) A complaint must be filed within 6 months of the alleged contravention. (2) If a continuing contravention is alleged in a complaint, the complaint must be filed within 6 months of the last alleged instance of the contravention. [117] The Tribunal has consistently held that the time limit in s. 22(1) is a substantive provision; Chartier v. School District No. 62, 2003 BCHRT 39, para. 12. [118] In MacAlpine v. Office of the Representative for Children and Youth 2011, BCHRT 29, the Tribunal said: In order to constitute a continuing contravention, the allegations must first disclose incidents that could, if proven, contravene the Code: Pavlovic v. UBC and CUPE Local 116, 2006 BCHRT 329, para. 9, Fraser v. College of New Caledonia and others, 2009 BCHRT 432, at paras. 18-20; Alexander v. Real Estate Council, 2010 BCHRT 45; and Mallenby v. Malaspina University College and others, 2009 BCHRT 208. If a potential contravention of the Code is alleged, then the Tribunal will assess whether the allegations constitute a continuing contravention. A continuing contravention requires a succession or repetition of separate acts of discrimination of the same character. There must also be a timely act of discrimination which could be considered a separate contravention of the Code, and not merely one act of discrimination which may have continuing consequences: Lynch v. B.C. Human Rights Commission, 2000 BCSC 1419. paras. 14 to 15. 23

[119] The Tribunal also stated in Dove v. Greater Vancouver Regional District, 2006 BCHRT 197 (Dove No. 2): At the same time, the concept of the continuing contravention must be applied in a manner which is fair to respondents. In giving the concept the liberal and purposive interpretation it requires, it must not be used to improperly sweep in allegations which would otherwise be far outside the Codes time limits. It is largely for this reason that in considering whether a continuing contravention has been alleged the Tribunal will also consider how large any gaps in time between the alleged contraventions may be; see, for example, Dixon v. Vancouver Island Human Rights Coalition, 2005 BCHRT 209, at paras. 16-17, para. 42. Analysis [120] While there are differences in the nature of the events postdating April 26, 2011 relied upon in the Complaint and those preceding April 26, 2011, fundamentally, whether we are talking about incidences involving micro-management of Ms. Moutals attendance and time management issues, over-supervision, failure to promptly schedule vacation, disciplinary or quasi-disciplinary conduct, re-locating Ms. Moutal in the District Administrative Office, or refusal to accept medical information provided by Ms. Moutal, all of these allegations share the common element that, if Ms. Moutals disability is a factor in the behaviour which the School District is attempting to curb, they are allegations of a failure to accommodate by the School District. In that sense, I consider them to be a succession of separate acts of discrimination of the same character. In no way do I consider such an interpretation to be unfair to the Respondents. [121] In the circumstances, I find that the factual allegations of Ms. Moutal constitute allegations of a continuing contravention. Accordingly, I decline to dismiss the Complaint pursuant to s. 27(1)(g). [122] Of course, to find a continuing contravention it is necessary to consider whether the facts alleged are capable of supporting a reasonable inference that the treatment complained of is related in whole or part to a prohibited ground of discrimination. I will deal with that issue in the next portion of this decision dealing with s. 27(1)(b).

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[123] Suffice it to say that for purposes of the timeliness issue, I am satisfied that there is a continuing contravention and decline to dismiss the Complaint pursuant to s. 27(1)(g). ANY CONTRAVENTION OF THE CODE? Section 27(1)(b) [124] Essentially the School District submits that Ms. Moutals allegations should be dismissed as not revealing any contravention of the Code because there is no evidence that she suffered from a mental disability during the relevant timeframe or, alternatively, because she fails to show a link between any adverse employment consequences she may have suffered and a mental disability. [125] The common element in the submissions of the School District is that, according to them, at no point has Ms. Moutal suggested that the behaviour which was of concern to the School District was caused by a mental disability. Law [126] A s. 27(1)(b) analysis must be embarked on by the Tribunal based upon the bare allegations set out in the Complaint which must be assumed to be true, Pegura v. School District No. 36, 2003 BCHRT 53, para. 28. Analysis No Evidence of Mental Disability [127] The District relies heavily on the fact that Ms. Moutal did not speak up at any point and say specifically that she required accommodation with respect to her arrival time at her workplace, the time she required for lunch, micro-management of those issues by her direct supervisor, perceived enrollment of fellow workers to monitor her attendance, and reassignment to the District Administration Office where she could be under the direct supervision of the District. [128] Further, the District points to the specific language used by Dr. Minhas in his various reports which appears, in some cases, to fall short of stating that Ms. Moutal had a current disability. They contrast that with the independent medical experts opinion that Ms. Moutal does not have a current medical disability and submit that the Tribunal should conclude that, on the information that was before them, they did not discriminate.

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[129] However, the letters from Dr. Minhas are exhibited to the Affidavits of Mr. Kaltenbach and Ms. Moutal. The Affidavit of Mr. Kaltenbach attaches Dr. Minhas letter of April 27, 2011 which reads in part: In the course of therapy, Ms. Moutal made a remarkable recovery from a severe mental breakdown in 2006. Following a medical leave of absence she was able to successfully return to full time work. For the past three years, one of Ms. Moutals main ongoing challenges revolved around her work situation. As a result of that, some of her therapy sessions focused on helping her deal effectively with the conditions of her employment, work environment and the nature of her communication with her supervisor. Ms. Moutal is currently under considerable stress and has endured significant hardship due to her supervisors repeated official allegations regarding Ms. Moutals hours of work. Ms. Moutal informed me recently that as a result of these contentions, she has been subjected to disciplinary actions and has been directed to relocate her office to the Main Administration building so that she can be better supervised and monitored. In my opinion, this move could be detrimental to Ms. Moutals mental health and well being, due to past work-related trauma in that specific work location and her tenuous working relationship with her current supervisor. I wish to note that Ms. Moutal takes psychotropic medications as part of her therapy, which caused adverse effects that mostly interfere with her functioning in the morning. I understand that the medication created a sluggish state in the mornings, which led to her being late to work. I strongly recommend that Ms. Moutal be given special consideration for her occasional morning tardiness. It will be beneficial if her hours are more flexible and can better meet her needs. Similarly, I strongly recommend that Ms. Moutal remain at her current work location at Sea Island Learning Centre and receive the support that she needs to fulfill the duties of her work there. I strongly recommend not to transfer her back to the same environment where she experienced her mental health breakdown in the past. [130] That letter elicited a letter from Mr. Kaltenbach to Ms. Moutal presenting a series of questions for Dr. Minhas which might better have been addressed directly to Dr. Minhas. In response, Dr. Minhas responded to Mr. Kaltenbach on May 22, 2011 and stated in part:

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Her diagnosis met the criteria for acute stress disorder as well as post traumatic stress disorder and possible depressive mood disorder. Even though Ms. Moutal was in full remission by the time our previous communication had taken place (see my letter from April 27, 2011) currently there is a severe regression in her condition and she is at high risk for developing a full blown relapse of her symptomatology. While experiencing full remission of her condition Ms. Moutal is able to perform the required duties of her administrative job at the required level. When Ms. Moutal is experiencing a full remission from her illness, her condition does not prevent her from attending her job on time. At the same, as she is receiving psychotropic medications that unfortunately increase the degree of solemnest/tiredness/fatigue upon waking up in the morning, these medications are a major factor in her difficulties in arriving at her job at the required time. When Ms. Moutal is in remission she has no difficulties with communication about her break times as well as interacting with the supervisor about scheduling issues. At the same time, one has to appreciate that Ms. Moutal is vulnerable to stress and being subjected to micro-management of her work (that to my understanding was always at the highest level of capability) increases her anxiety and can lead to tendencies to try to minimize her exposure to this environment by limiting the contact with that same supervisor. The prognosis for Ms. Moutal to achieve a full remission is a very positive one provided adaptations for her condition exists. It is important to realize that Ms. Moutal is able to regain her normative, high functioning level following a crisis in 2007 and, with the help of psychotherapy and medication intervention, had regained her full functioning. There is no reason to assume that, with the proper adaptations that this will not happen again. When Ms. Moutal is in full remission, her ability to work at the Richmond School Board Administration Department is returned to normal. At the same time, her past condition was originated from stress-related work within this primary place of employment (the District Office). Her future exposure to the building and to the people in it severely increases the risk for a relapse. It would be nave to assume that, if she works in a different office with a different supervisor, yet in the same the building, where all the stress was involved in the previous crisis for her happened, there would be no impact on Ms. Moutals mental state and on the risk for reactivating her anxiety. Currently, Ms. Moutal has unfortunately redeveloped severe signs of relapse of her anxiety episodes. She experiences severe fatigue, dizziness and symptoms of being lightheaded.At the same time, it is quite

27

possible that her symptoms are part of a relapse of her anxiety condition relating to the recent stress over the last couple of months around her employment. With the accommodation she needs and the support I am confident she will get from her employer, Ms. Moutal is likely to regain full remission and will be able to perform the full duties of her job. In my opinion there are no measures that should be considered in mediating the return of Ms. Moutal to the District Office. Her current employment at Sea Island School was an important part of her ability to recuperate from the previous event of an acute anxiety disorder and the return to the same location will significantly and negatively affect her well being. I strongly recommend this measure will not be taken and all efforts are made to enable Ms. Moutal to work in other locations (preferably remaining at the Sea Island office). [131] The School District interpreted Dr. Minhas letters as suggesting that Ms. Moutal was at the material times in full remission and that the letters referred to a mere anxiety state rather than diagnosable mental health disorders. It seems to me that an alternative interpretation is not only possible but viable in view of the fact that Dr. Minhas clearly states that Ms. Moutal takes psychotropic medications and that those cause interference with her functioning in the morning which is directly related to her being late to work. He further states on May 25, 2011 that Ms. Moutal as of that time is experiencing severe regression in her condition and is at a high risk for developing a full blown relapse of her symptomatology. His letter also seems to separate full remission of her condition, in which he is clear that she would be able to perform her required duties, from her condition in actuality at the time he was writing that letter. I am satisfied that there is sufficient ambiguity in Dr. Minhas correspondence that could invoke a duty to inquire further. I am further satisfied that the provision of Dr. Minhas letters to the District could be viewed by the Tribunal as a request for accommodation. [132] Although not material to an analysis under s. 27(1)(b), I include the opinions of Dr. Levin here so that they can be readily contrasted with the opinions of Dr. Minhas. [133] The view of the School District seems to have been supported by the IME. Dr. Levin seems to take the same view of Dr. Minhas reports as did the School District. He states: although Ms. Moutal has a psychiatric diagnosis of major depressive disorder, recurrent, with anxiety symptoms she currently does not present

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with any active or clinically significant depressive symptomatology and remains in full remission. As previously mentioned, her residual, situational anxiety is mild in severity and does not affect her occupational performance or social life. [134] He also says: Ms. Moutal does not present with any clinically significant psychological/emotional disturbances or cognitive deficits which would affect her ability to perform her current occupational duties as a clerical assistant in the Continuing Education Department of the District. and As discussed above, Ms. Moutals major depressive disorder is currently in remission. Therefore, her morning difficulties and being late to work cannot and should not be explained or justified by her major depressive disorder which is currently in remission. He also states: I would like to emphasize that 75 mg of Zoloft would not be expected to cause Ms. Moutals reported morning psychological and physical disturbances. [135] All of this will be of significance in the consideration of a s. 27(1)(c) analysis but, as previously stated, only Ms. Moutals recounting of the facts can be considered on a s. 27(1)(b) application. I am satisfied that there is sufficient information in Dr. Minhas letters to alert the School District that there is a possibility, if not a probability, that Ms. Moutals employment issues may be attributable, wholly or in part, to her medical condition. If those letters are taken at face value, I am satisfied that there is sufficient information that the Tribunal could conclude the School District had a duty to inquire further with respect to the relationship between Ms. Moutals employment issues and her disability. Accordingly, I decline to dismiss this Complaint pursuant to s. 27(1)(b) on the basis that there is no evidence of mental disability. [136] The School District has also argued that there was no evidence of a perceived disability. I accept that position given that the position of the School District throughout was that it was provided with insufficient medical support for the fact that any of the activities of Ms. Moutal were related to her mental disability. As a result, they proceeded throughout on the basis that Ms. Moutal had no disability they were required to

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accommodate. That, however, does not create a basis for dismissing the claim pursuant to s. 27(1)(b) in view of my comments in the previous paragraph. Analysis Nexus [137] The School District also submits that Ms. Moutal has failed to show a nexus between the School Districts behaviour which is the subject of her Complaint and her medical disability. [138] Suffice it to say that I disagree. Relying entirely on Ms. Moutals information, as I am required to do on a s. 27(1)(b) application, it would certainly be open to the Tribunal at a hearing to find that the behaviour of the District, which Ms. Moutal recites as the basis of her Complaint, was grounded in the failure by the District to properly engage in an accommodation process required by the information they had received from Ms. Moutal and her physicians. [139] I decline to dismiss Ms. Moutals Complaint pursuant to s. 27(1)(b) on the basis that she has failed to set out a nexus between the behaviour of the School District and her mental disability. NO REASONABLE PROSPECT OF SUCCESS Section 27(1)(c) [140] Finally, the School District submits that the Complaint should be dismissed under s. 27(1)(c) on the basis that there is no reasonable prospect that the Complaint will succeed. The Applicable Law [141] Under s. 27(1)(c) of the Code, the Tribunal has the discretion to dismiss a complaint if it determines that the complaint has no reasonable prospect of success. The principles which the Tribunal employs in considering applications to dismiss under s. 27(1)(c) are well established. In Wickham and Wickham v. Mesa Contemporary Folk Art and others, 2004 BCHRT 134, the Tribunal stated: [T]he role of the Tribunal, on an application, 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

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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. [142] The Tribunals role in assessing whether there is no reasonable prospect a complaint will succeed has been described in the Court of Appeal in Workers Compensation Appeals Tribunal v. Hill, 2011 BCCA 49, at para. 27: 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 complainants 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 refd [2006] S.C.C.A. No. 171; Gichuru v. British Columbia (Workers Compensation Appeal Tribunal), 2010 BCCA 191, 285 B.C.A.C. 276 at para. 31. Analysis [143] The School District submits that the Tribunal has dismissed complaints in several cases under s. 27(1)(c) where the respondent provided a reasonable, non-discriminatory explanation for the conduct in question. They also assert that the Tribunal has taken that approach where there were factual disputes between the parties. [144] Both submissions made on behalf of the School District are correct. However, where the factual dispute is central to the issue before the Tribunal, it would be unusual

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for the Tribunal to dismiss the complaint under s. 27(1)(c) in the absence of a clear basis for resolving the factual dispute. [145] The School District has submitted that the allegations respecting Mr. Khoos attitudes towards Ms. Moutal and his micro-managing of her inability to attend work in a timely fashion, including Mr. Khoos use of information from co-workers regarding Ms. Moutals absences and the requirement that she report her tardiness to him, do not provide a basis upon which a finding of discrimination can succeed. [146] They say that, on the material before the Tribunal, Mr. Khoo was unaware of Ms. Moutals medical condition and understood that she was in full remission and cleared to return to work without accommodation at all material times. They submit that Ms. Moutal never provided information that she was suffering from a mental disability which caused her to be tardy. [147] The School District submits that Mr. Khoo has provided a reasonable explanation for his failure to immediately approve Ms. Moutals request for vacation. [148] The School District also submits that its decision that Ms. Moutal had breached her letter of expectation and the resulting decision to relocate her to the District Office, as the basis of a complaint under s. 13 of the Code, has no reasonable prospect of success. The basis for that submission is that the School District, at the time the decision was made to place Ms. Moutal at the District Office, had no indication she was suffering from a mental disability. They also submit their conduct was not related to Ms. Moutals medical history or alleged disability and therefore cannot be found to be discriminatory. [149] Finally, the School submits that the medical evidence submitted by Ms. Moutal could not substantiate her position that she could not be moved to the District Office and that she required a medical leave of absence. They say that medical evidence was internally inconsistent, did not indicate Ms. Moutal was suffering from a disability at the material time, and did not suggest that she had an illness which required accommodation. [150] The School Districts position with respect to acceptance of Ms. Moutals medical evidence is based on criticisms of the lack of precision in reports provided by her

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psychiatrist as well as on the fact that the independent medical report arrived at different conclusions than that of her psychiatrist. [151] I am of the view that Ms. Moutals medical information could be viewed by the Tribunal as evidence that, at the material time, her disability was not in remission. Accordingly, I am of the view that the Tribunal could conclude that Messrs. Khoo and Kaltenbach should have been aware, at least subsequent to April 27, 2011, of the medical condition Ms. Moutal was suffering from. [152] I am of the view that the Tribunal could conclude that the dependence of the District on the independent medical report was inappropriate and that the divergence of medical opinion required inquiry. [153] The District raised a number of issues over and above their primary position that Ms. Moutal had presented insufficient medical information to require them to accommodate. [154] I find no support in the material for the proposition that delay in approving sick leave can be explained by the grievance process. The Districts material appears to state that the decision to get the Unions approval was a choice rather than a requirement of the Collective Agreement. [155] The material suggests that the letter of expectation may have been disciplinary. Whether the other alleged discipline is disciplinary or merely advisory will have little consequence if the actions complained of were carried out in the absence of required accommodation. Ms. Moutals position, apparently supported by Dr. Minhas and Dr. Sourisseau, is that those actions exacerbated her medical issues. That is an issue, the resolution of which requires conclusions respecting the degree of disability Ms. Moutal experienced at the relevant time. [156] I am of the view that the agreement to be bound by the independent experts assessment is immaterial. It is trite law that a party cannot contract out of the Code. In any event, the agreement was reached in circumstances which the Tribunal could determine were inconsistent with the Codes requirements of employers when

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accommodation is requested. Again, it is an issue that should only be decided after a full evidentiary hearing. [157] Respecting the use of the Compendium of Pharmaceuticals and Specialties, I do not see the fact that it is introduced through hearsay as material. It is a respected reference source and may contradict Dr. Levins opinion that Zoloft would not be expected to cause Ms. Moutals morning fatigue issues. Given the importance of the effect of that drug in the analysis of the discrimination in this case, a full evidentiary hearing in which all medical personnel defend their views is required. [158] For the reasons previously discussed in the s. 27(1)(b) analysis, I am of the view that the School Districts view of the conflict in the medical evidence is overly simplistic, that the true medical state of Ms. Moutal at the material times is central to whether Ms. Moutal can establish that she had a mental disability, and that that medical conclusion will be central to whether Ms. Moutal can establish a prima facie case. The appropriate conclusions on the issue, in my view, can be reached by the Tribunal only after the physicians who have provided their reports have been subjected to full crossexamination. I reject the position that the District was entitled to disregard the medical information provided by Ms. Moutal and rely solely on the independent medical assessment. That is an issue that must be decided after a full evidentiary hearing. If Dr. Levins opinion is accepted, they were correct in doing so. However, if Dr. Minhas opinion is preferred, then that reliance might be to the Districts detriment. [159] It is open to the Tribunal, depending upon the resolution of the disability issue, to determine that the School District did not engage in an appropriate process of accommodation with respect to Ms. Moutal and thereby contravened the Code. [160] Accordingly, I am not prepared to dismiss Ms. Moutals Complaint pursuant to s. 27(1)(c). [161] For clarification, the Complaint against the Individual Respondents has been withdrawn, therefore, it is not necessary to consider that issue.

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VII

CONCLUSION

[162] The application by the School District is dismissed.

________________________________ Norman Trerise, Tribunal Member

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