Date Issued: July 5, 2024

File: CS-002210

Indexed as: Redmond v. Hospital Employees’ Union, 2024 BCHRT 203

2024 BCHRT 203 (CanLII)

IN THE MATTER OF THE HUMAN RIGHTS CODE,
RSBC 1996, c. 210 (as amended)

AND IN THE MATTER of a complaint before

the British Columbia Human Rights Tribunal

BETWEEN:

Megan Redmond

COMPLAINANT

AND:

Hospital Employees’ Union

RESPONDENT

REASONS FOR DECISION

Tribunal Member: Jessica Derynck

Counsel for the Complainant: Steven Barker

Counsel for the Respondent: Melissa VanderHouwen and Emily Raven

Date of Hearing: June 6-9 and July 10-11, 2023, with written
submissions closing July 21, 2023

Location of Hearing: Video Conference

I INTRODUCTION

[1] Megan Redmond became a member of the Hospital Employees’ Union [HEU] in
September 2019 while she worked at Princeton District Community Services Society [PDCSS].

2024 BCHRT 203 (CanLII)

PDCSS was Ms. Redmond’s first job after she suffered a brain injury and underwent about 1.5
years of rehabilitation. Ms. Redmond also has ADHD. At PDCSS she worked as a residential
support worker for people with disabilities.

[2] In April 2020 PDCSS terminated Ms. Redmond’s employment and HEU filed a grievance
on her behalf. Ms. Redmond alleges that HEU discriminated against her based on mental
disability when it represented her in her grievance, contrary to s. 14 of the Human Rights Code
[Code].

[3] For her complaint to succeed, Ms. Redmond would need to establish that she
experienced an adverse impact in union representation in which at least one of her disabilities
was a factor. She alleges that HEU represented her differently from other union members to
her detriment because of her disabilities. She says one HEU representative’s conduct and
communications constituted adverse treatment that impacted her dignity and self-worth. She
also says that HEU relied on stereotypes about mental disabilities when deciding on a course of
action for her grievance, and failed to put her strongest case forward because of a belief that
her disabilities would work against her.

[4] HEU asks the Tribunal to dismiss the complaint. HEU says it handled Ms. Redmond’s
grievance appropriately and she did not experience any adverse impacts. HEU also says Ms.
Redmond has not established that her disabilities were a factor in any of its actions or decisions
in the handling of her grievance. HEU’s position is that the complaint is really one of
dissatisfaction with union representation, which does not establish discrimination.

[5] For the following reasons, I find that Ms. Redmond has not established that she
experienced an adverse impact in union representation. This means she has not established her
case, and I dismiss her complaint.

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[6] I apologize to the parties for the delay in issuing this decision.

II OVERVIEW

2024 BCHRT 203 (CanLII)

[7] Ms. Redmond was 33 years old at the time of the hearing. She testified that she was
diagnosed with ADHD in 2013. In 2017 she suffered a serious brain injury and was in hospital
for at least one month, then had assistance from a life skills worker after her discharge.

[8] Ms. Redmond started working at PDCSS in March 2019 in a casual position working
about 20 hours per week. As a support worker she helped residents with tasks like grocery
shopping, meals, and taking medications, and with activities like social time and crafts. PDCSS
was Ms. Redmond’s first job supporting people with disabilities. She believed there was value in
her own lived experience with disabilities and was happy that she was physically and mentally
able to work in this job to support others.

[9] In September 2019 HEU became the certified bargaining agent for employees of PDCSS.
Ms. Redmond became a member of HEU as a result.

[10] PDCSS terminated Ms. Redmond’s employment on April 8, 2020. PDCSS cited several
reasons for the termination in a letter to Ms. Redmond, including missed shifts and tardiness,
violating a policy with a social media post, unauthorized use of overtime, failure to check in
according to a policy on working alone, using steak knives to play darts with a client, and
disregarding instructions against non-essential travel to take a client shopping and out for
lunch.

[11] On April 14, 2020, HEU filed a grievance for Ms. Redmond alleging unjust termination,
failure to accommodate, and discrimination based on medical disability.

[12] Morena Miller is a servicing representative at HEU. She was assigned to Ms. Redmond’s
grievance. Ms. Miller’s role included assessing the grievance to determine what sort of
outcome to try to get for Ms. Redmond, negotiating with PDCSS, and keeping Ms. Redmond in
the loop. On April 30, 2020, Ms. Miller wrote a letter to Ms. Redmond setting out her

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assessment of the grievance [April 30 Letter]. Ms. Miller’s assessment was that Ms. Redmond
had engaged in some misconduct and should acknowledge this, but HEU would propose to
resolve the grievance by having PDCSS reinstate Ms. Redmond and impose lesser discipline. Ms.
Miller also said there was no evidence to suggest discrimination, but that Ms. Redmond may

2024 BCHRT 203 (CanLII)

provide HEU with any medical documentation that would explain limitations or restrictions
related to her misconduct. Ms. Miller concluded her letter by asking Ms. Redmond whether she
wanted her job back, and said that if she did not, there was no other remedy to seek and HEU
would withdraw the grievance.

[13] Ms. Redmond and Ms. Miller communicated about the grievance by email and phone.
Ms. Redmond became concerned that Ms. Miller did not believe her explanations for her
conduct at work. Ms. Redmond was also concerned that Ms. Miller did not seem to agree with
her that PDCSS had discriminated against her by failing to accommodate her disabilities.

[14] Two things happened on May 12, 2020. First, PDCSS made an offer to Ms. Miller to
resolve the grievance by paying Ms. Redmond $2,000, which was about three months of her
average earnings, in exchange for withdrawal of the grievance, a confidentiality clause, and a
release of future claims.

[15] Second, Ms. Redmond gave Ms. Miller a copy of a letter from her doctor dated May 8,
2020 [May 8 Medical Letter]. The May 8 Medical Letter explains that Ms. Redmond suffered a
brain injury in 2017. The letter says that Ms. Redmond has long-term consequences of her
injury, including impulsivity, difficulties with self-control, poor self-awareness, and impaired
judgment in social situations. The letter says it is important to help brain injury survivors to
maintain close to a normal quality of life, including maintaining employability with support and
mentorship in place.

[16] Ms. Miller’s assessment of the grievance at this stage, after considering the May 8
Medical Letter, was that the grievance was not likely to succeed if it were to proceed to
arbitration. Ms. Miller also determined that PDCSS would not agree to reinstate Ms. Redmond

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to employment as part of a resolution to the grievance. Ms. Miller’s recommendation was that
Ms. Redmond accept PDCSS’s settlement offer.

[17] Ms. Miller spoke with Ms. Redmond on the phone on May 13, 2020, and reviewed

2024 BCHRT 203 (CanLII)

PDCSS’s settlement offer. Ms. Redmond said she did not want to accept the offer.

[18] On May 28, 2020, Ms. Miller spoke with a representative for PDCSS from its employer
association and proposed two alternative options for resolving the grievance – either that
PDCSS pay Ms. Redmond the offered $2,000 but remove the release so she may pursue a
complaint of discrimination at the Tribunal, or that PDCSS pay Ms. Redmond $10,000 as human
rights damages in lieu of reinstatement. The PDCSS representative did not respond to the
options during their conversation.

[19] On May 29, 2020, Ms. Miller sent Ms. Redmond two letters. In one letter, Ms. Miller
explained that PDCSS offered a settlement stating that they did not intend to reinstate her
employment. She recommended to Ms. Redmond that she accept the settlement offer and told
her that if she did not agree with this recommendation that she may access HEU’s internal
appeal process [May 29 Recommendation Letter].

[20] In the second letter, Ms. Miller set out her explanation for her view that the May 8
Medical Letter did not support a claim of discrimination [May 29 Discrimination Claim Letter].

[21] On June 17, 2020, Ms. Redmond commenced an appeal under HEU’s internal appeal
process.

[22] After Ms. Redmond commenced her appeal, around June 22, 2020, PDCSS’s
representative contacted Ms. Miller and advised that PDCSS did not want to involve the
employer association in the grievance, so Ms. Miller should communicate with PDCSS directly.
The representative also said that PDCSS might consider paying more than $2,000 to settle the
grievance but would not pay the $10,000 that Ms. Miller had proposed.

[23] Barbara Lemky was HEU’s Director of Membership Services for the interior region at the
time relevant to the complaint. Ms. Lemky reviewed Ms. Redmond’s appeal. Ms. Lemky’s
4
assessment was that she agreed with the recommendation to settle the grievance, but she first
wanted HEU to further assess whether PDCSS met its duty to inquire into whether Ms.
Redmond had a disability that required accommodation. Ms. Lemky determined that the best
course of action was to refer the grievance to an industry troubleshooter process, which is an

2024 BCHRT 203 (CanLII)

informal process where a third party makes recommendations and assists an employer and
union in resolving a grievance.

[24] Ms. Lemky also determined that there had been a breakdown in the relationship
between Ms. Redmond and Ms. Miller, and decided to assign Ms. Redmond’s grievance to new
servicing representatives, Kim Benke and Becky Jacobson.

[25] Ms. Benke and Ms. Jacobson took the grievance to the industry troubleshooter process.
The troubleshooter recommended resolution of the grievance on the same terms that PDCSS
had proposed, but with a payment of $4,000 instead of $2,000. Ms. Redmond agreed to HEU’s
recommendation to resolve the grievance on these terms.

III ISSUES

[26] This complaint is made under s. 14 of the Code, which says, in part: “A trade
union…must not…discriminate against any person or member because of the… physical or
mental disability …of that person or member”.

[27] To prove her case, Ms. Redmond must establish that she has a disability or disabilities,
she experienced an adverse impact in the course of HEU representing her in her grievance, and
her disability was a factor in the adverse impact: Moore v. BC (Education), 2012 SCC 61 at para.
33; Stewart v. Elk Valley Coal Corp., 2017 SCC 30 at para. 47.

[28] There is no dispute that Ms. Redmond has a brain injury, which is a disability for the
purposes of the Code. HEU says Ms. Redmond has not established that she has been diagnosed
with ADHD. My decision does not turn on this point, and for the purposes of my decision I
assume, without finding, that Ms. Redmond has ADHD and that her ADHD is a disability for the
purposes of the Code.

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[29] I must decide whether Ms. Redmond experienced adverse impacts as an HEU member
in the grievance process in which a disability was a factor. Specifically, I must decide:

a. Did HEU mistreat Ms. Redmond through its conduct and communications,

2024 BCHRT 203 (CanLII)

constituting an adverse impact in which her disability was a factor?

b. Did HEU rely on stereotypes about mental disabilities in determining a course of

action for her grievance, constituting an adverse impact in which her disability
was a factor?

c. Did HEU represent Ms. Redmond to her detriment because of her disabilities,
constituting an adverse impact in which a disability was a factor?

[30] For the reasons below, I find Ms. Redmond has not established that she experienced any
adverse impact in the course of HEU representing her in her grievance. On this basis, I find that
HEU has not breached s. 14 of the Code.

IV EVIDENCE AND CREDIBILITY

[31] I heard this matter over six days. Ms. Redmond gave evidence, and three witnesses, Ms.
Miller, Ms. Lemky, and Ms. Benke, testified for HEU. Overall, I find that all of the witnesses did
their best to provide an accurate recollection of events within their knowledge, and I find them
to be credible. This is not a case of disputed material facts, and there are no instances where I
must prefer one witness’s evidence over another’s to make my decision.

[32] Ms. Miller’s credibility is relevant to the extent that I must decide whether or not to
accept her evidence about why she made the decisions she did about Ms. Redmond’s
grievance. Ms. Redmond submits that Ms. Miller’s evidence contained inconsistencies and self-
serving answers, she challenged basic and reasonable assertions, and was not willing to admit
wrongdoing.

[33] I am not persuaded that Ms. Miller’s evidence lacks credibility. I explain below that I
accept her evidence about why she made the decisions she did in her conduct of Ms.

6
Redmond’s grievance. Overall, I find that she was cooperative, and tried to provide her accurate
recollection of events and her decisions. At times she appeared to be frustrated or slightly
defensive, but I find this to be consistent with being the subject of discrimination allegations
and having to give evidence, which is stressful for most people. I do not expect respondents or

2024 BCHRT 203 (CanLII)

witnesses with allegations against them to give evidence with a complete lack of frustration or
other emotional response.

[34] I have considered all of the evidence admitted by the parties at the hearing. In my
reasons below, I recount only the evidence necessary to make my decision.

V ANALYSIS AND DECISION

A. Establishing discrimination under Section 14 of the Code in the context of

a grievance process

[35] Ms. Redmond’s complaint is about decisions that HEU made about her grievance, and
how Ms. Miller treated her while representing her in the grievance process. She says she was
treated worse than other HEU members would be in a similar situation and that her disabilities
were a factor.

[36] In a complaint about union representation in a grievance process, a complainant will not
prove a breach of the Code by showing that the union’s representation was ineffective. To
prove a breach of s. 14 of the Code a complainant must establish that they were disadvantaged
in union membership for a reason connected to their protected characteristics: Byelkova v.
British Columbia Nurses’ Union, 2019 BCHRT 119 at para. 57. If a complainant shows that a
union agreed to a grievance settlement that was not in the complainant’s best interest, and
that the union acted arbitrarily, unfairly, or wrongly in doing so, this does not amount to
discrimination. The Tribunal’s role is not to assess the quality or level of union representation,
rather, our role is to determine whether any of the union’s conduct constitutes an adverse
impact for the purposes of s. 14 of the Code, and if so, whether the complainant’s protected
characteristic was a factor in the adverse impact.

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[37] Ms. Redmond submits that the issues of discriminatory representation and sub-standard
representation are not mutually exclusive, but it is possible to experience sub-standard
representation informed by discriminatory reasons. She says she does not seek to hold union
representatives to a standard of perfection, and that she is not asking the Tribunal to second-

2024 BCHRT 203 (CanLII)

guess HEU’s professional assessment; rather, she alleges that Ms. Miller, in particular,
discriminated against her by treating her badly throughout the process and allowing
stereotypes about mental disability to influence her decisions about Ms. Redmond’s grievance.

[38] I accept that discrimination may occur alongside sub-standard representation. The onus
is on a complainant to establish that they experienced sub-standard representation that
constitutes an adverse impact, or that some other treatment or conduct in the course of the
process constitutes an adverse impact. The Tribunal does not second-guess a union
representative’s decisions or decide whether it agrees or disagrees with those decisions; rather,
the Tribunal determines whether any actions or decisions constituted an adverse impact. If a
complainant disagrees with a union’s decision this does not necessarily mean that the decision
constitutes an adverse impact. A complainant may experience some parts of the process, such
as a decision to resolve the grievance in a way that the complainant disagrees with, as negative
or difficult without that part of the process being an adverse impact. Treating a complainant
harshly in the course of the process, on the other hand, is more likely to be an adverse impact.
Stereotyping a complainant, or neglecting to pursue their grievance or making decisions
adverse to them based on stereotypes is likely to be an adverse impact.

[39] I must consider whether Ms. Redmond experienced an adverse impact in the context of
the inherent difficulty of the grievance process for a union member in her situation. It is clear
that she found the grievance process difficult. She was fired from her job, which is an inherently
stressful situation. Regardless of whether or not there was merit to her view that PDCSS
discriminated against her, she strongly felt that they mistreated her and failed to accommodate
her disabilities to give her an opportunity to succeed in the workplace. The issues in her
grievance were personal and important to her. She had little control, and no ultimate decision-
making power, in a process that required some review and analysis of her personal medical

8
information about her brain injury. Unfortunately, this was all difficult because of the nature of
the grievance process.

[40] I turn now to decide whether Ms. Redmond has established that she experienced an

2024 BCHRT 203 (CanLII)

adverse impact, which requires more than proving that she experienced ineffective
representation or difficulties inherent to the nature of the process.

B. Did Ms. Miller’s manner of communicating with Ms. Redmond constitute

an adverse impact?

[41] Ms. Redmond says that Ms. Miller communicated with her in ways that were blaming,
hurtful, and rooted in stereotypes, which impacted her dignity and self-worth. Ms. Redmond
says the following specific communications constituted an adverse impact on her.

[42] On May 1, 2020, Ms. Redmond wrote to Ms. Miller with a question about the April 30
Letter setting out Ms. Miller’s initial assessment of her grievance:

Hi Morena,

Sorry what does this mean?

“In consideration of the disability you have disclosed to the Union, if there
is any medical documentation from your medical practitioner that
explains any limitations or restrictions that have not previously been
identified and are directly related to the misconduct in the above
circumstances, please provide that documentation.”

[43] Ms. Miller replied and said:

Hi Megan

It means exactly what it says. If you believe your medical condition was
the cause of your misconduct outlined in the letter, your doctor will need
to provide detailed medical documentation to explain why your medical
condition contributed to your misconduct at work. That is if you intend to
excuse your behavior at work by reason of your medical condition.
Otherwise you will be expected to meet the standards of the employer
for all staff in the conduct of their duties at work. It is important to know
that if your medical condition is the reason for your misconduct, the

9
 employer may raise the question of suitability for the job and claim undue
hardship if you cannot meet the bona-fide requirements of the job.

[44] Ms. Redmond says that the response “it means exactly what it says” was humiliating
and traumatizing.

2024 BCHRT 203 (CanLII)

[45] In another email on May 1, 2020, Ms. Miller told Ms. Redmond that she would ask
PDCSS for more time to review her grievance, and told Ms. Redmond that she needed an
answer to the question of whether Ms. Redmond wanted her job back. Ms. Miller said that if
Ms. Redmond did want her job back, she would proceed to suggest a proposal to PDCSS to
reinstate Ms. Redmond to employment with lesser discipline for the misconduct. She said that
if Ms. Redmond wanted to pursue a complaint at the Tribunal, then she would ask PDCSS for its
agreement to put the grievance on hold. Ms. Miller said:

I have explained everything to you verbally and in writing. I have used

plain, clear language. If you need to seek support from somewhere else
to understand then you should do so quickly.

[46] Ms. Redmond says this part of Ms. Miller’s email made her feel dumb and embarrassed.

[47] Ms. Redmond also points to some of Ms. Miller’s comments in the May 29
Discrimination Claim Letter, in which Ms. Miller gave Ms. Redmond her assessment of the May
8 Medical Letter. Ms. Miller started the May 29 Discrimination Claim Letter by saying she
understood that this level of medical disclosure is not taken lightly, and that she would make
every effort to be sensitive to Ms. Redmond’s feelings in her communication. Ms. Miller
summarized the information in the May 8 Medical Letter, then explained that her view was that
the medical information in the letter would not support Ms. Redmond’s grievance. Ms. Miller
said:

This letter from your doctor is certainly thorough and confirms much
more details about what exactly are your limitations and restrictions. I do
not disagree with the doctor that maintaining employment and living a
productive lifestyle is beneficial to your continued recovery. However,
this raises the question of whether or not working at PDCSS is the best
place to support your continued recovery. PDCSS clients have their own
challenges in life. These may bring elements of dealing with stressful

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 situations that have potential to raise triggers for you and may complicate
your recovery.

It must be acknowledged that the employer was not aware of these new
medical details during your employment. They cannot be faulted for lack

2024 BCHRT 203 (CanLII)

of disclosure. You provided limited disclosure in November, however,
there was much more to your medical condition that you did not disclose
rendering the employer unable to fully explore what, if any,
accommodation was needed. Employees do not get to withhold medical
information and then seek to punish the employer for failure to
accommodate.

Accommodation is not a word to use as a “get out of jail free card” when
being disciplined for legitimate misconduct. Being accommodated in the
workplace is a collaborative effort by employers and employees to
identify what is wrong and find a way to fix it by balancing everyone’s
needs – including those of the clients receiving services from PDCSS.

[48] Ms. Redmond also says the comments that employees may not withhold medical
information and seek to punish the employer, and that accommodation is not a word to use as
a “get out of jail free card”, are examples showing hurtful and disrespectful thinking about
people with disabilities.

[49] A complainant’s subjective perception of adverse treatment is not always enough to

prove that a respondent discriminated against them contrary to the Code: Singh v. A & M
Enterprises Ltd., 2023 BCHRT 148 at para. 57. I reviewed the communications between Ms.
Redmond and Ms. Miller in their full context to decide whether Ms. Miller’s manner of
communicating rises to the level of an adverse impact for the purposes of the Code. I find that
Ms. Miller’s communications with Ms. Redmond do not constitute an adverse impact.

[50] I accept Ms. Redmond’s evidence that she felt hurt, embarrassed, and belittled when
reading these parts of Ms. Miller’s emails. I appreciate that these emails came to her in the
context of a process that dealt with issues that were personal and important to her. However, I
must view Ms. Miller’s comments in their full context. Ms. Miller made all of the comments that
Ms. Redmond points to in the context of explaining her assessment of Ms. Redmond’s
grievance and answering Ms. Redmond’s questions.

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[51] The comment “It means exactly what it says” on May 1, 2020, precedes a full
explanation of the information Ms. Redmond asked Ms. Miller about. Ms. Miller made her
comments that she had explained everything verbally and in writing, and using plain, clear
language, in the context of telling Ms. Redmond that she should seek support to understand if

2024 BCHRT 203 (CanLII)

needed. Ms. Miller’s evidence, which I accept, is that she read Ms. Redmond’s email with her
questions and did not know how else to concisely state that Ms. Redmond should provide any
more medical information that she had, and her comment reflects this, but she went on to try
to provide more of an explanation to help Ms. Redmond understand. This is consistent with the
grievance process and Ms. Miller’s role. In this context, the comment “It means exactly what it
says” is direct, and it would be reasonable to perceive it as curt, but is not an adverse impact.

[52] Similarly, Ms. Miller made her statement that she had already explained everything
verbally and in writing, in plain, clear language, in the context of telling Ms. Redmond that if she
needed more support to understand, she should seek it quickly. Ms. Miller’s evidence, which I
accept, is that she had answered Ms. Redmond’s questions to the best of her ability, and did
not know how else to communicate with her other than suggesting that someone else help to
communicate the information she was trying to convey. Again, this communication is direct and
it is reasonable to perceive it as curt, but this is not an adverse impact in the context of the
grievance process.

[53] Finally, it is reasonable to perceive Ms. Miller’s comments that employees may not seek
to “punish” employers or to use accommodation as a “get out of jail free card” as direct and
curt, but in the context of Ms. Miller’s explanation of why Ms. Redmond’s new medical
information may not be helpful to her grievance, these comments do not constitute an adverse
impact.

[54] I find that Ms. Miller’s manner of communicating to Ms. Redmond was not an adverse
impact. On this basis, I find that Ms. Miller’s treatment of Ms. Redmond was not discrimination
contrary to the Code.

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 C. Did HEU rely on stereotypes about mental disabilities in determining a
course of action for Ms. Redmond’s grievance?

[55] Ms. Redmond says that in Ms. Miller’s two letters of May 29, 2020, her assessment of

2024 BCHRT 203 (CanLII)

Ms. Redmond’s case became more pessimistic. Ms. Redmond submits that Ms. Miller was
relying on injurious stereotypes in her assessment. Specifically, Ms. Redmond says it was
inappropriate for Ms. Miller to suggest in the May 29 Discrimination Claim Letter that her
chosen profession may complicate her recovery and that she was not capable of doing her job
when her doctor’s letter did not suggest this. Ms. Redmond says this was hurtful and damaging
stereotyping based on her disabilities. She says Ms. Miller’s suggestion that she was seeking to
“punish” her employer, and to use accommodation as a “get out of jail free card”, is evidence of
further stereotypical thinking about people with mental disabilities. Ms. Redmond says Ms.
Miller should have focused on PDCSS’s duty to inquire into whether she was medically fit to
work, not her own view of whether or not the job was appropriate for Ms. Redmond. Instead,
Ms. Redmond says Ms. Miller cast her as someone who was using her disabilities in bad faith to
try to escape legitimate discipline.

[56] I have considered that discrimination based on mental disabilities can occur without any
conscious intention and is often subtle. For this reason, the Tribunal can find a breach of the
Code where evidence renders an inference of discrimination more probable than the other
possible inferences or hypotheses. I also considered that stigma and stereotypes may cause
people to profile those with mental disabilities based on preconceived ideas about their
character, and to treat them with suspicion: Mai v. Hillcrest Community Center Preschool and
another, 2021 BCHRT 65 at paras. 53 to 55.

[57] Ms. Miller gave extensive evidence about how she assessed Ms. Redmond’s grievance,
including after she received the May 8 Medical Letter. She explained that she reviewed medical
assessments Ms. Redmond had provided to PDCSS. The first is a new applicant medical
assessment dated March 29, 2019, which says that a medical assessment of all potential
employees is a licencing requirement. On this assessment Ms. Redmond’s doctor said that she
was physically and mentally able to perform all duties of the job, and should have support and

13
mentorship to call on should the need arise. The second assessment is written on the same
“new applicant” form, but is dated November 6, 2019. It says Ms. Redmond is physically and
mentally able to perform the duties of the job, but with provisions. In an attached letter, Ms.
Redmond’s doctor says Ms. Redmond needs ongoing mental health care and will be able to

2024 BCHRT 203 (CanLII)

function well when all needed supports are in place, but there is no reason she cannot perform
the duties of her position in the meantime.

[58] Ms. Miller testified that she did not take from the medical assessments that Ms.
Redmond had restrictions or limitations that impacted her ability to do her job, or that any of
the misconduct for which she was disciplined was connected to a disability or accommodation
issue. This is why Ms. Miller asked Ms. Redmond in her April 30 Letter to provide her with any
medical documentation that would explain limitations or restrictions related to her misconduct.

[59] Ms. Miller testified that she did not find the May 8 Medical Letter to be helpful. While
the letter said that it was important to Ms. Redmond’s return to normal functioning to maintain
“an almost normal quality of life”, including maintaining employment with support and
mentorship in place, this letter differed from the 2019 medical assessments in that it did not
say that Ms. Redmond was able to perform all of the duties of her position. Instead, the May 8
Medical Letter set out that Ms. Redmond’s clinical consequences of her brain injury included
impulsivity, difficulties in self-control, poor self-awareness, and impaired judgement in social
situations.

[60] Ms. Miller testified that, rather than being helpful for Ms. Redmond’s grievance, she
viewed the May 8 Medical Letter as unhelpful because it contradicted the earlier medical
assessments that simply said that Ms. Redmond could do all aspects of her job. Ms. Miller says
her view was that the symptoms listed in the letter stood out in the context of her initial goal of
trying to get Ms. Redmond her job back, because support workers must make judgement calls,
use critical thinking skills to keep clients safe, and be positive social role models for clients. She
says she formed the view that it would be difficult to achieve an accommodation for Ms.
Redmond’s symptoms in her position. In any case, Ms. Miller testified that by the time she
reviewed the May 8 Medical Letter, PDCSS had already decided that it was not interested in a

14
settlement that would give Ms. Redmond her job back. She says she raised the issue of having
new medical evidence with PDCSS’s representative, but there was no interest in further
discussion.

2024 BCHRT 203 (CanLII)

[61] I accept Ms. Miller’s evidence about her reaction to the May 8 Medical Letter, and
her reasons for her approach and decisions related to Ms. Redmond’s grievance. I considered
the May 29 Discrimination Claim Letter in the context of all of the evidence. I find there is no
basis in the evidence for an inference that any conscious or unconscious negative stereotypical
views of mental disabilities influenced Ms. Miller’s decisions related to Ms. Redmond’s
grievance. Instead, I find it is more likely than not that Ms. Miller decided how to proceed,
including her recommendation to accept PDCSS’s settlement offer, based on information
relevant to the merits of the grievance, including the May 8 Medical Letter, and her view that
the letter was unlikely to help reach a different outcome.

[62] Ms. Redmond has not established that negative stereotypes about mental disabilities
influenced Ms. Miller’s handling of her grievance. On this basis, I find that Ms. Miller did not
engage in stereotyping based on mental disability constituting discrimination contrary to the
Code.

D. Did HEU represent Ms. Redmond to her detriment, constituting an

adverse impact in which a disability was a factor?

[63] Finally, I turn to Ms. Redmond’s allegation that generally, HEU represented her
differently, and to her detriment, because of her disabilities.

[64] I find that Ms. Redmond has not established any adverse impact in union
representation.

[65] Ms. Redmond submits that she is not asking the Tribunal to determine a standard of
care for union representation, or to hold union servicing representatives to a standard of
perfection. She says the issue in her complaint is “whether there has been representation with
indicators of discrimination”. I have found that Ms. Miller’s treatment of Ms. Redmond was not

15
an adverse impact, and that Ms. Miller did not rely on stereotypes about mental disabilities
when handling the grievance. I find that the rest of Ms. Redmond’s allegations are about
difficulties inherent to the process, including dissatisfaction with the standard of representation
she received, rather than allegations of discrimination.

2024 BCHRT 203 (CanLII)

[66] Ms. Redmond submits that the Tribunal determined in a letter decision dated October
27, 2022, that her complaint does not ask the Tribunal to second-guess the professional
assessment of a union servicing representative.

[67] I disagree with Ms. Redmond’s interpretation of this letter decision. In this decision the
Tribunal exercised its discretion and denied HEU’s application to file an application to dismiss
the complaint under ss. 27(1)(a), (c) and (d)(ii) of the Code. If it had been permitted to file an
application to dismiss, HEU intended to argue that the allegations in the complaint fall within
the exclusive jurisdiction of the Labour Relations Board, there is no evidence capable of proving
Ms. Redmond was adversely impacted in respect of the Union’s services, and the Union had
already remedied any possible discrimination by providing a different representative to assist
her and resolving her grievance to her satisfaction.

[68] The Tribunal denied HEU’s application because it was based on the same information in
HEU’s response and proceeding directly to a hearing would be the most just and timely way to
resolve the complaint. That decision was not a final decision on the issue of whether parts of
Ms. Redmond’s complaint are about dissatisfaction with HEU’s process and services rather than
allegations of discrimination. It does not preclude me from making findings about this issue. I
explain my reasons next.

[69] I have found that Ms. Miller’s manner of communicating to Ms. Redmond was not
discrimination, and that Ms. Miller did not rely on discriminatory stereotypes in her conduct of
the grievance. Aside from these allegations that Ms. Miller mistreated her and relied on
stereotypes about mental disabilities, I find that Ms. Redmond’s other allegations are really
about the adequacy of the representation she received, disagreement with Ms. Miller’s

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assessments and decisions, and the inherent difficulties of the grievance process for a union
member in her situation.

[70] Ms. Redmond alleges that HEU represented her to her detriment because Ms. Miller did

2024 BCHRT 203 (CanLII)

not do a thorough job. For example, Ms. Miller did not request a copy of Ms. Redmond’s
personnel file but instead relied on documents she received through the grievance process, and
did not open and review all of Ms. Redmond’s emails right away. Ms. Redmond also says Ms.
Miller did not put her strongest case forward, and did not agree with her allegation that PDCSS
discriminated against her. Ms. Redmond also takes issue with HEU initially advocating to have
her returned to her job, then recommending settlement of the grievance after discussions with
PDCSS.

[71] Ms. Redmond points to the difference in how Ms. Benke handled her grievance after the
internal appeal process compared to how Ms. Miller represented her, and submits that Ms.
Miller’s initial representation was substandard. She submits that she was compelled to
advocate for herself by engaging HEU’s internal appeal process when she did not wish to follow
Ms. Miller’s recommendation to accept PDCSS’s settlement offer, and that under the appeal
process Ms. Lemky did not focus on her complaint about how Ms. Miller treated her.

[72] Ms. Redmond has not established that she experienced an adverse impact in the course
of her grievance process. The issues she points to, including her disagreement with Ms. Miller’s
assessments of her case, her dissatisfaction with Ms. Miller’s efforts, and the necessity of
accessing the internal appeal process when she did not wish to accept Ms. Miller’s
recommendation, were all parts of the grievance process and are not adverse impacts for the
purposes of the Code. Further, an allegation that a union failed to pursue a claim of alleged
discrimination against an employer is not an allegation of discrimination, rather, the proper
forum for an allegation that a union failed to properly represent a member’s interests is the
Labour Relations Board: Badour v. Provincial Health Services Authority and others, 2012 BCHRT
112 at para. 29.

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[73] In any case, having found that Ms. Miller did not treat Ms. Redmond harshly or
stereotype her based on her disabilities, there is no evidence on which to infer that Ms.
Redmond’s disabilities were a factor in the adequacy and level of representation she received,
even if I had found the level of representation to be an adverse impact.

2024 BCHRT 203 (CanLII)

[74] On this basis, I find that the level of representation Ms. Redmond received in her
grievance process was not discrimination contrary to the Code.

VI CONCLUSION

[75] The complaint is dismissed under s. 37(1) of the Code.

__________________________________
Jessica Derynck
Tribunal Member

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