Resolving Complaints in Multiple Forums
Sebastian v. Vancouver Coastal Health Authority, 2018 BCSC 722
Mr. Sebastian was employed by Vancouver Coastal Health Authority (“VCHA”) as a medical imaging technologist. He was represented in his employment by the Health Services Association of British Columbia (the “Union”).
The Union filed nine grievances on Mr. Sebastian’s behalf, eight of which alleged that VCHA failed to reasonably accommodate Mr. Sebastian’s disability.
Mr. Sebastian also filed a complaint with the BC Human Rights Tribunal (the “Tribunal”) that alleged ongoing discrimination on the basis that VCHA had failed to reasonably accommodate his disability.
The complaint before the Tribunal was deferred pending the outcome of the grievances.
The grievances proceeded to hearing, but before the evidence was completed, VCHA and the Union agreed to settle the grievances. The settlement was recorded in a consent award (the “Consent Award”).
Mr. Sebastian opposed the settlement of the grievances and did not agree to the terms of settlement.
The Consent Award provided for wage loss to be paid to Mr. Sebastian, but no damages for injury to dignity under the Human Rights Code, R.S.B.C. 1996, c. 210. The Consent Award also set out an accommodation process for VCHA to assess Mr. Sebastian’s ability to perform various accommodated positions. As is standard in such awards, the Consent Award stated that there was no admission of liability by either party.
After the Consent Award, VCHA made a with prejudice offer to settle to settle Mr. Sebastian’s complaint to the Tribunal, which was limited to a payment for damages for injury to dignity and an acknowledgement of the difficulty of the accommodation process. The offer contained no admission of liability on the part of VCHA and no accommodations.
Mr. Sebastian declined the offer, following which VCHA applied to dismiss his complaint to the Tribunal on the basis that he had refused a reasonable settlement offer. VCHA did not take the position that the Consent Award had, on its own, resolved the human rights complaint.
The Tribunal dismissed the complaint, finding that the settlement offer was reasonable in light of the Consent Award.
On judicial review, the Court upheld the dismissal of the complaint.
The main issue at both the Tribunal and Court was the Tribunal’s consideration of the Consent Award, to which Mr. Sebastian did not agree. Mr. Sebastian took the position that because he did not agree to the Consent Award, the Tribunal could not rely on its terms and ought to have assessed the reasonableness of VCHA’s offer as if his complaint to the Tribunal was proven as alleged.
The Court held, however, that it was appropriate for the Tribunal to have considered the Consent Award, as to do otherwise would have effectively placed the Tribunal in the position of reviewing the correctness of an outcome reached in another forum.
The Court noted that Mr. Sebastian accepted the benefit of the wage loss provided by the Consent Award and did not file a complaint to the Labour Relations Board regarding the Consent Award.
The Court held that the Tribunal appropriately considered the Consent Award as a constituent part of the settlement offer made by VCHA.
The Court also rejected Mr. Sebastian’s assertion that in considering the reasonableness of the offer the Tribunal was bound to treat the allegations in the complaint as proven, including allegations about his desired accommodations. The Court held that the Tribunal could not ignore “objective facts”, which included the Consent Award, and that to accept only the allegations made in the complaint would be a consideration of only “subjective facts” (at para. 80).
Further, the Court confirmed in this context that Mr. Sebastian was only entitled to a reasonable accommodation, suggesting that if the “objective facts” disclosed a reasonable accommodation, then a complainant’s desire for more would not prevent a complaint from being dismissed.
In the result, the Court dismissed the petition for judicial review, upholding the Tribunal’s dismissal of the complaint.
Key takeaways for employers:
- Even if a settlement or decision does not fully resolve all issues in a human rights complaint, if the issues resolved or decided have some overlap with issues before the Tribunal, the settlement or decision may still prove valuable at the Tribunal
- An employer may build on the settlement or decision to construct a reasonable settlement offer without a need to re-litigate issues already resolved or decided
- Further, an employer may do so even in the absence of a complainant’s agreement to the settlement or decision
- When assessing the reasonableness of a settlement offer, the Tribunal must look at “objective facts” and not simply proceed as if the “subjective facts” in the complaint are proven as alleged