Date Issued: August 1, 2024

File: CS-003977

Indexed as: Gibbons v. CML Contracting and another, 2024 BCHRT 220

2024 BCHRT 220 (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:

Christopher Gibbons

COMPLAINANT

AND:

CML Contracting Ltd. and Chad Lewis

RESPONDENTS

REASONS FOR DECISION

Tribunal Member: Edward Takayanagi

Counsel for the Complainant: Suzanne H. Grant

On behalf of all Respondents: Chad Lewis

Date of Hearing: January 9 – 10, 2024

Location of Hearing: Via Videoconference

I INTRODUCTION

Christopher Gibbons alleges that his former employer, CML Contracting Ltd. and its
owner Chad Lewis [collectively the Respondents] discriminated against him on the basis of age

2024 BCHRT 220 (CanLII)

and physical disability contrary to s. 13 of the Human Rights Code. Mr. Gibbons says the
Respondents did not schedule him to return to work after a medical leave, effectively
terminating his employment. He says Mr. Lewis did not schedule him because he prefers
younger workers whom he believes are more physically capable and less prone to workplace
accidents.

The Respondents deny discriminating. They say Mr. Gibbons was not terminated and he
quit to start his own company. Mr. Lewis denies he had a preference for young workers and
says that neither age nor physical disability played a role in Mr. Gibbons not being scheduled to
return to work.

At the start of the hearing, Mr. Lewis applied to adjourn the hearing. I denied the
adjournment application, with written reasons to follow, which I set out below. The hearing
proceeded by videoconference over two days.

During the two-day hearing, the parties were given a full opportunity to call witnesses,
introduce evidence and make arguments. While I do not refer to it all in my decision, I have
considered all of the evidence and submissions of the parties. This is not a complete recitation
of that information, but only those necessary to come to a decision.

I find that Mr. Gibbons’ employment was terminated by the Respondents and that his
age was a factor in the termination. Therefore, I am satisfied that the Respondents
discriminated contrary to s. 13 of the Code. As a result, I am satisfied that Mr. Gibbons is
entitled to compensation for injury to his dignity, feelings, and self-respect and lost earnings.

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II PRELIMINARY ISSUE – APPLICATION TO ADJOURN A HEARING

A. Overview

At the start of the hearing, Mr. Lewis applied to adjourn the hearing to allow him to

2024 BCHRT 220 (CanLII)

retain legal counsel. The parties made oral submissions on the adjournment application, which
Mr. Gibbons opposed. I denied the application with reasons to follow.

These are my reasons. As I explain below, I am not satisfied that Mr. Lewis made his
application within the time limits for bringing an adjournment application under the Tribunal’s
Rules of Practice and Procedure, nor am I satisfied that his request is reasonable in all of the
circumstances.

Below I begin by setting out the relevant procedural history to my decision on the
adjournment application in context. I then summarize the parties’ submissions. Finally, I explain
why I dismiss the application.

B. Procedural History

The Respondents filed their Response to the Complaint on May 16, 2022. At that time,
the Respondents were represented by counsel and provided counsel’s address as the address
for service.

The Tribunal convened a case conference call on April 13, 2023. The parties attended by
phone and provided their availability for a hearing. Based on the parties’ availability the
Tribunal set the hearing down for January 9 to 10, 2024 and set deadlines for disclosure of
documents and to provide witness lists.

In accordance with the deadline the Respondents provided their witness list to Mr.
Gibbons and the Tribunal on October 11, 2023. The Respondents said Mr. Lewis would be their
only witness.

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 On November 23, 2024, Respondents’ counsel informed the Tribunal they were
withdrawing and provided Mr. Lewis’ contact information as the updated address for service.
Mr. Lewis agrees that this was his correct contact information.

2024 BCHRT 220 (CanLII)

On December 4, 2023, the Tribunal contacted the parties and scheduled a hearing
readiness conference call for December 14, 2023. The Tribunal informed the parties that if they
were unable to attend, they could have a representative attend on their behalf.

On December 14, 2023, I conducted the hearing readiness call. No one attended on
behalf of the Respondents. The Tribunal phoned and emailed the Respondents to let them
know the conference call was underway. The Respondents did not respond and did not
participate in the call. A summary of the call, confirming the hearing dates of January 9-10,
2024, and setting a deadline of January 3, 2024, for the parties to submit their Book of
Documents for the hearing, was sent to the parties by email on December 14, 2023.

The Tribunal also sent Mr. Lewis an email on December 14, 2023, stating that if he was
not prepared to attend the hearing scheduled for January 9-10, 2024, he could apply to adjourn
the hearing. The email included a link to the Tribunal’s website giving information on how to
apply and contact information for the Law Centre which provides free legal advice and
assistance. Mr. Lewis was invited to contact the Case Manager if he had any questions.

The Tribunal emailed the parties on January 2, 2024, reminding them of the hearing
dates and deadlines to submit hearing documents. The Tribunal also reminded the parties of
the option of seeking an adjournment if they were not prepared to proceed with the hearing.
The Tribunal resent the link to the Tribunal’s website with information on the how to apply for
an adjournment and contact information for the Law Centre.

The Respondents did not submit any hearing documents by the deadline of January 3,
2024.

The Tribunal emailed the parties on January 4, 2024, stating that they have not received
hearing documents from the Respondents. The Tribunal said the Respondents could still submit

3
hearing documents and it would be up to the member presiding at the hearing to decide if they
would be allowed. The Tribunal reminded the Respondents that if they are not prepared for the
hearing they could apply for an adjournment.

2024 BCHRT 220 (CanLII)

The Tribunal followed up with Mr. Lewis by phone on January 4, 2024. The Case
Manager spoke with Mr. Lewis and further explained how to apply for an adjournment if he
was not prepared to proceed with the hearing.

On January 5, 2024, Mr. Lewis emailed the Tribunal saying he would like to apply to
adjourn the hearing and would submit his application. Later that day, Mr. Lewis emailed the
Tribunal an application form seeking an adjournment. The application was incomplete and
missing several pages.

On the next business day, January 8, 2024, the Tribunal emailed the parties to inform
them it had received Mr. Lewis’ application but that it appeared to be incomplete. The Tribunal
said submissions on the application would be heard by the presiding Member on the first day of
the hearing.

C. The Parties’ Submissions

Both parties attended the hearing on January 9, 2024, and made oral submissions.

Mr. Lewis said he sought an adjournment to hire counsel. He initially said he did not
have funds to pay for counsel, but later clarified that he did have funds but wanted to see first if
he would be required to repay his Canada Emergency Business Account (CEBA) loan on January
18, 2024. He said that if he was not required to repay his loan, he could use those funds to
retain counsel.

When questioned why he did not apply for an adjournment earlier when his previous
lawyer withdrew in November, Mr. Lewis said that he only learned of the option of applying for
an adjournment on Friday, January 5, 2024.

4
 Ultimately, Mr. Lewis said that he was prepared to proceed without counsel but
believed that counsel could assist him in locating additional witnesses and evidentiary
documents that would support his arguments.

2024 BCHRT 220 (CanLII)

Mr. Gibbons opposes the adjournment. He said the application was late and that no
new circumstances had arisen that justifies the late application. He said Mr. Lewis’ counsel
withdrew on November 24, 2023, and he has had ample opportunity to seek new counsel. He
said that he would be prejudiced if an adjournment is granted on the first day of the hearing to
allow Mr. Lewis to bolster his case when he has failed to meet earlier deadlines.

D. Analysis

Rule 30 of the Tribunal’s Rules of Practice and Procedure sets out the Tribunal’s practice
and procedure regarding adjournments. It states:

Rule 30 – Adjournment of Hearing

Required information in adjournment application

(1) An application for an order adjourning a hearing must state:

(a) why the request is reasonable; and

(b) why granting the request will not unduly prejudice the other
participants.

Time limit for filing adjournment application

(2) An application for an adjournment must be filed at least two full

business days before the date set for the hearing, unless the
information or circumstances that form the basis of the application
have not come to the participant’s attention by that time.

I first consider whether Mr. Lewis brought his application in accordance with the time
limit required under Rule 30(2). I then consider whether the request is reasonable under Rule
30(1)(a).

I am not satisfied that Mr. Lewis brought his application within the time limits required
by the Rules.

5
 An incomplete adjournment application was filed on the last business day before the
hearing, and the adjournment application was ultimately made on the first day of the hearing.
As such, the application was not brought “at least two full business days” before the date set
for the hearing.

2024 BCHRT 220 (CanLII)

The issue for Rule 30(2), then, is whether Mr. Lewis has satisfied the Tribunal that the
“information or circumstances that form the basis of the application” did not come to his
attention until January 5, or alternatively, January 8.

On this issue, Mr. Lewis says he only became aware he could request an adjournment
on January 4, 2024. However, the materials before me do not support this assertion. Rather,
the materials before me indicate that Mr. Lewis was informed by the Tribunal since at least
December 14, 2023, that he could seek an adjournment.

In fact, the Tribunal’s correspondence record shows that he was informed by email on
December 14, 2023, January 2, 2024, and January 4, 2024, about the process for applying for an
adjournment.

In addition, the Tribunal spoke to Mr. Lewis on January 4, 2024, to inform him of the
process for applying for an adjournment. When asked during the adjournment application, Mr.
Lewis did not deny that he received the Tribunal’s correspondence or that he spoke to a case
manager.

Further, Mr. Lewis’ counsel withdrew on November 24, 2023. Mr. Lewis did not explain
when he began seeking new counsel or what steps he took, if any, to retain new counsel. Mr.
Lewis does not dispute that he was aware that his counsel withdrew on November 24, 2023,
and he was provided with the Tribunal’s resources for self-represented parties. He raised the
issue of not having funds to retain counsel but provides no information about if or how his
circumstances in this regard changed between November 24 and January 5.

Based on the materials before me I am not satisfied that Mr. Lewis was not previously
aware of the information or circumstance that would form the basis for an extension of the

6
time limit to file an adjournment application. Therefore, I find Mr. Lewis’ adjournment
application was filed outside of the time limit.

Even if I were to exercise my discretionary power under Rule 2(2) to waive the time

2024 BCHRT 220 (CanLII)

limits, I would still find Mr. Lewis’ request for an adjournment is not reasonable for the
following reasons.

Ultimately, I do not find the reasons given by Mr. Lewis for seeking an adjournment to
be reasonable in all of the circumstances. I am not satisfied that procedural fairness requires an
adjournment in this circumstance.

Mr. Lewis says that he needs more time to retain counsel because he wants to wait and
see if he is obligated to repay his CEBA loan. He says if not, he can use those funds to retain
counsel. Mr. Lewis says he has the means to retain counsel but would prefer to prioritize the
repayment of his loan if so required. In this circumstance, I am not persuaded that how Mr.
Lewis chooses to spend his funds and whether he prioritizes the repayment of his loan is a
compelling reason for an adjournment because Mr. Lewis had notice of the hearing date and
his loan. Nothing prevented Mr. Lewis from requesting an adjournment or alternately
requesting relief from repaying his loan. Mr. Lewis has done neither. Mr. Lewis has also not
provided any information about why he believes waiting will change his obligation to repay his
loan.

Further, while Mr. Lewis claimed to have consulted with lawyers, he was unable to
provide their availability if this hearing was adjourned. There is no information before me from
which I could conclude that it is reasonably likely than an adjournment would result in Mr.
Lewis’ financial circumstances changing or that he will retain counsel to represent him at a
hearing in the near future.

I also note that Mr. Lewis referred to additional witnesses and evidence he believes may
exist and which he says he would be able to obtain if he had additional time and legal
assistance. As was noted in the Tribunal’s correspondence, and as I reiterated at the hearing, an
adjournment of the hearing does not extend the parties’ pre-hearing deadlines, such as those

7
for document disclosure or the exchange of witness lists. Mr. Lewis’ argument about new
witnesses and evidence is vague. Mr. Lewis has not identified who the additional witnesses may
be and what evidence they would provide. Nor has he specified what additional documents he
may introduce. He is not arguing that there is new information or that he is unable to get a fair

2024 BCHRT 220 (CanLII)

hearing but rather that he could prepare additional materials if given an opportunity to do so.
In the circumstance before me I find it is not reasonable to grant an adjournment so that Mr.
Lewis can add new witnesses or documents when he has had a full opportunity to do so earlier.

Ultimately, Mr. Lewis said he was prepared to proceed and did not identify any
prejudice to him if the hearing proceeded as scheduled. Mr. Gibbons said that it would be
prejudicial to allow an adjournment when he has prepared for the hearing and scheduled
witnesses to attend. Because I do not find the request for an adjournment to be reasonable it is
not necessary for me to consider whether there would be prejudice to the parties. In any event,
I am not satisfied in all the circumstance that procedural fairness requires an adjournment of
the hearing because Mr. Lewis confirmed he was ready to proceed.

Accordingly, I denied the adjournment request and proceeded with the hearing.

III WITNESSES & EVIDENCE

Mr. Gibbons testified on his own behalf and called two witnesses, his spouse, and his
physiotherapist. Mr. Lewis testified on behalf of the Respondents. I found all witnesses to be
forthright in their attempts to recall events that are alleged to have occurred nearly four years
prior.

I have assessed the credibility and reliability of each witness, looking at their ability to
accurately observe, recall, and recount what occurred, whether supporting or contradictory
evidence exists, and the internal and external consistency of their testimonies: Harder v. Tupas-
Singh and another, 2022 BCHRT 50, at para. 7. Where the parties gave conflicting evidence, I
have examined whether each witness’s evidence was in “harmony with the preponderance of

8
the probabilities which a practical and informed person would readily recognize as reasonable
in that place and in those conditions”: Faryna v. Chorny, 1951 CanLII 252 (BC CA) at para. 11.

Mr. Gibbons began working for CML Contracting Ltd. as a tree climber in 2013. His

2024 BCHRT 220 (CanLII)

responsibilities included travelling to work sites, climbing trees, and operating hand and power
tools to cut and clear branches. Mr. Gibbons describes himself as a “natural climber” who has
spent most of his working life outdoors in the forestry and landscaping industry.

Mr. Lewis is the owner and manager of CML Contracting Ltd, a landscaping business.

Mr. Gibbons was 47-years old in 2019 when the incidents giving rise to the complaint
occurred.

On March 29, 2019, Mr. Gibbons was injured in a workplace accident. He cut several
tendons in his left hand. Mr. Gibbons went on a medical leave due to his injury. He had surgery
on his hand and was regularly seen by a physiotherapist to manage his recovery and regain full
use of his hand.

During his medical leave, Mr. Gibbons communicated with Mr. Lewis through text
messages. Mr. Gibbons gave updates on his recovery and expressed how eager he was to
return to work.

On January 16, 2020, Mr. Gibbons’ physiotherapist phoned Mr. Lewis to discuss setting
up a graduated return to work plan to begin in late-January or early-February. The
physiotherapist testified that Mr. Lewis informed her that the Respondents would not be able
to accommodate a graduated return to work because they had a shortage of work and he
considered Mr. Gibbons “too old and too much of a liability for another injury.” The
physiotherapist took notes of the conversation with Mr. Lewis and wrote what he said in Mr.
Gibbons’ program report.

Mr. Lewis testified and agreed that he spoke with the physiotherapist but did not recall
the exact words he said. He did not deny, however that he told her that there was no position
available for Mr. Gibbons because of his age.
9
 Following the conversation with Mr. Lewis, the physiotherapist told Mr. Gibbons what
Mr. Lewis said. She noted in her contemporaneous notes that a graduated return to work was
not possible because the Respondents said they did not have a job for him to return to.

2024 BCHRT 220 (CanLII)

On January 20, 2020, Mr. Gibbons texted Mr. Lewis to ask if what his physiotherapist
had told him was true that he was “not welcome back”. Mr. Lewis did not respond to the text
message.

Mr. Gibbons sent further texts to Mr. Lewis in February 2020, saying that his treating
physicians approved him to return to work as of March 5, 2020, and asking if Mr. Lewis could
confirm his employment status. Mr. Gibbons also sent the same information by emails to Mr.
Lewis. Mr. Lewis did not reply to the text messages or emails.

On Friday, March 6, 2020, Mr. Gibbons sent Mr. Lewis a text message and an email
expressing concern that he has not received any response to his earlier messages and asking if
he should report to work on Monday, March 9, 2020. Mr. Lewis did not reply to the text
message or email.

On March 10, 2020, Mr. Gibbons sent Mr. Lewis an email stating that he was available to
return to work and if Mr. Lewis does not respond, he would assume he has been dismissed
from employment. Mr. Lewis did not reply to Mr. Gibbons’ email.

IV ANALYSIS AND DECISION

To prove discrimination, Mr. Gibbons must establish that: (1) he has a protected
characteristic, in this case his age and/or physical disability; (2) he experienced an adverse
impact in his employment, in this case by being terminated from his employment; and (3) his
protected characteristics were a factor in the adverse impact: Moore v. BC (Education), 2012
SCC 61 at para. 33.

To constitute a violation of the Code, the protected characteristic does not have to be
the sole factor in the adverse treatment or adverse impact. It just has to be a factor: Québec

10
(Comm. des droits de la personne et des droits de la jeunesse) v. Bombardier Inc., 2015 SCC 39
at paras. 45-52.

If Mr. Gibbons proves discrimination, the burden shifts to the Respondents to justify

2024 BCHRT 220 (CanLII)

their conduct as a bona fide occupational requirement under s.13(4) of the Code. If the adverse
impact cannot be justified, the Tribunal will find that discrimination occurred.

I begin with the elements Mr. Gibbons must establish.

I have no difficulty finding that Mr. Gibbons has established that he has the protected
characteristics of age and physical disability. The Respondents do not dispute that Mr. Gibbons
has an age and that he had a physical disability within the meaning of the Code.

The parties’ arguments are exclusively about whether Mr. Gibbons was discriminated
based on his age. Therefore, I do not need to consider Mr. Gibbons’ physical disability.

Turning to adverse impact, Mr. Gibbons says he experienced an adverse impact because
his employment was terminated. He says he was not contacted by Mr. Lewis to arrange a
return to work following his injury leave and that Mr. Lewis ignored him and did not respond to
his emails or texts. He says that his employment was effectively terminated.

Mr. Lewis denies that Mr. Gibbons was terminated and asserts that he remains
employed and on the active roster as at the date of the hearing. Mr. Lewis says that because he
did not tell Mr. Gibbons that his employment was terminated, and because he did not issue a
Record of Employment [ROE], Mr. Gibbons was not fired.

Mr. Lewis denies that he ignored Mr. Gibbons, or that his lack of response is evidence
that Mr. Gibbons was terminated. Mr. Lewis says that during the initial months of the COVID-19
pandemic, he isolated with his family in a remote location and was unable to receive or respond
to communications. Mr. Lewis was unable to recall the specific date that he began isolating but
believed it to be in early 2020. Mr. Lewis denies that he is responsible for scheduling workers.
He says Mr. Gibbons should have followed up with the managers at CML to inquire about the
availability of work or to arrange to be scheduled for work.
11
 Termination can occur even where an employer has not formally terminated an
employee’s employment, but the employer’s conduct is treated as a dismissal or termination at
law: Potter v. New Brunswick Legal Aid Services Commission, 2015 SCR 500 at para. 30. The
Tribunal has recognized that such a constructive dismissal may amount to a termination of

2024 BCHRT 220 (CanLII)

employment, within the meaning of s. 13 of the Code: Sarba v Ruskin, 2022 BCHRT 35 at para.
36.

On the whole of the evidence, I am satisfied that Mr. Gibbons has proven on a balance
of probabilities that his employment was terminated by the Respondents.

I begin with the undisputed evidence that Mr. Lewis informed Mr. Gibbons’
physiotherapist on January 16, 2020, that they did not have a position for Mr. Gibbons. This
statement suggests that Mr. Gibbons was not welcome to return to CML and there was no work
for him.

Further, the evidence before me is that Mr. Lewis wrote to Mr. Gibbons on July 30,
2020, telling him to “walk away with a fresh start” and that he was “replaced and thats nature
of the game [sic]”. This evidence also suggests that Mr. Gibbons had been replaced at CML and
there was no position or work for him.

I have considered Mr. Lewis’ evidence and submissions that he was not responsible for
scheduling work and that Mr. Gibbons ought to have contacted managers of CML to arrange for
a return to work. I do not find this submission persuasive. The undisputed evidence before me
is that Mr. Gibbons reported directly and solely to Mr. Lewis and that Mr. Lewis was the sole
controlling mind of the business.

I have also considered the Respondents’ submission that they did not issue an ROE or
use the word “fired” in communication with Mr. Gibbons. Again, I do not find this submission
persuasive. The fact that the Respondents did not say the words “You’re fired” or issue an ROE
is not determinative. Mr. Gibbons was not scheduled for any hours of work, nor was he
contacted by his employer. Further, CML’s sole owner and directing mind communicated to Mr.
Gibbons that there was no work for him, and he had been replaced.

12
 In the circumstances I am satisfied that Mr. Gibbons has proven that the Respondents
terminated Mr. Gibbons’ employment.

The final issue for me to determine regarding the elements of the complainant’s case is

2024 BCHRT 220 (CanLII)

whether Mr. Gibbons’ age or physical disability were a factor in the termination of his
employment. It is not necessary that it be the sole or primary factor, so long as it is a factor in
the adverse impact.

For the following reasons, I am satisfied that Mr. Gibbons’ age was a factor in his firing.

While employers rarely announce that they are dismissing an employee for
discriminatory reasons, in this instance there is evidence that Mr. Lewis informed Mr. Gibbons’
physiotherapist that he considered him “too old and too much of a liability for another injury.”

The Respondents deny that Mr. Gibbons’ age was a factor in how they treated him.

Mr. Lewis said he does not recall the exact conversation he had with the physiotherapist
but does not dispute her recollection of what was said. While he says that limited weight should
be placed on her recollection because there was no audio recording of the conversation, there
are contemporaneous program report notes made by the physiotherapist which corroborate
her version of events. I have considered these notes in the context of the totality of evidence to
assess whether it is in harmony with the preponderance of reasonable probabilities: Eva v.
Spruce Hill Resort and Spa Ltd., 2018 BCHRT 238 at paras. 24-25. I find the physiotherapist notes
are a reliable recording of events because they were made in 2020, when Mr. Gibbons was
recovering from his injuries, for the purpose of documenting Mr. Gibbons recovery from his
injuries. The physiotherapist writes on February 11, 2020, that Mr. Lewis said Mr. Gibbons was
“too old and too much of a liability for another injury.”

Despite refuting that Mr. Gibbons’ age was a factor in his termination, in his evidence
Mr. Lewis repeatedly referred to age and his view about its effect on employees’ productivity.
He testified that he believes older employees are more prone to workplace injuries which result
in higher insurance premiums for the employer. He said that the nature of the landscaping

13
industry and the physical work involved means most workers are burnt out in their 40s. He said
that he has slowed with age and said, “it’s a young guy’s business, it really is.” He compared the
phenomenon to professional sports where there are rarely athletes over the age of 50.

2024 BCHRT 220 (CanLII)

While the Respondents gave various other reasons for Mr. Gibbons’ termination
including his lack of a valid driver’s license, his level of education and qualifications, and a
shortage of work due to COVID-19 these explanations do not contradict the undisputed
evidence that Mr. Lewis stated Mr. Gibbons was “too old and too much of a liability for another
injury.”

I accept that the Respondents may have had other concerns about Mr. Gibbons’
employment including his qualifications, the increasing amount of regulation and scrutiny in the
industry, and the lack of business during COVID-19. However, on the whole of the evidence
before me, these explanations do not rebut the compelling evidence before me that Mr.
Gibbons’ age was a factor in the decision to terminate his employment. Most notably the
physiotherapist’s evidence about their conversation with Mr. Lewis (including their
contemporaneous notes), as well as Mr. Lewis’ testimony that he considers Mr. Gibbons a
greater risk because of his age, satisfy me that Mr. Gibbons has established that age was a
factor in the Respondents’ termination of his employment.

Based on the evidence before me, I am satisfied that Mr. Gibbons’ age was a factor in
the Respondents’ decision to terminate his employment.

I next consider if the Respondents can justify their conduct as a bona fide occupational
requirement. While the Respondents did not expressly argue that their conduct is justified as a
bona fide occupational requirement, they did make arguments in this vein. Because they are
self-represented by Mr. Lewis, who is not a lawyer, in fairness to them, I have considered
whether they have established a justification defence.

An employer may justify conduct that is otherwise discriminatory by setting a standard

for the performance of a job. Such a standard must be adopted in good faith for a purpose
rationally connected to the performance of the job. The employer must also show that it would

14
be an undue hardship to accommodate an individual employee: British Columbia (Public Service
Employee Relations Commission) v. British Columbia Government and Service Employees' Union
(Meiorin Grievance), 1999 CanLII 652 (SCC), [1999] 3 SCR 3 at para. 5.

2024 BCHRT 220 (CanLII)

As I understand it, Mr. Lewis argues that tree climbing is a physically demanding job, and
it is therefore justified for CML to favour younger workers over older employees. He says that
many people in the tree climbing profession, as they advance in age, “burn out” or suffer
injuries and are no longer able to perform their duties. Mr. Lewis testified that the job requires
employees to climb trees and handle power tools which requires a level of strength, agility, and
coordination that he believes diminishes as a person ages. He said that there are few tree
climbers in their mid-30s, fewer still in their 40s, and virtually none aged 50 or older. Mr. Lewis
described himself and Mr. Gibbons as “old dinosaurs in the game” and said he is no longer as
energetic as he was in his 20s.

Mr. Lewis says he believes that older employees are prone to higher incidents of
workplace accidents and injuries. He says that higher incidents of accidents and injuries result
in higher insurance premiums for an employer. He says Mr. Gibbons’ injury is attributable to his
improperly handling a power tool. I understand Mr. Lewis is arguing that because older
employees are more likely to be involved in workplace accidents, the cost of insurance
increases and places an undue financial hardship on the Respondents.

Mr. Gibbons denies there is a reasonable justification defense. He says he was

terminated because Mr. Lewis prefers younger workers and not because Mr. Gibbons cannot
perform the work.

I am not satisfied on the evidence before me that the Respondents have a justification
defence.

I am not persuaded that the Respondents have established that they adopted a
standard for a purpose rationally connected to the performance of the job.

15
 First, the Respondents have not established what “standard” they adopted. Mr. Lewis’
testimony was his opinion about younger employees being more physically capable than older
employees. Mr. Lewis did not articulate the specific requirements of the tree climber job or
how a potential employee’s capabilities are measured. When asked on cross-examination, Mr.

2024 BCHRT 220 (CanLII)

Lewis was unable to explain what the standard was for the job.

Second, even if they had established a standard, I am not satisfied that they have
proven they adopted it for a purpose rationally connected to the performance of the job. Mr.
Lewis testified that he believes older employees are more prone to workplace accidents. Mr.
Gibbons disputes this assertion and suggests that older employees would be less prone to
workplace accidents because of their experience. Mr. Lewis was unable to provide any evidence
or information to support his views, aside from his own anecdotal experience. Without more I
am not prepared to accept that older employees have a higher rate of workplace accidents
compared to younger employees.

Finally, I am not satisfied that the Respondents have established that the standard is
reasonably necessary to the accomplishment of the work-related purpose. More specifically, I
am not satisfied that the Respondents have established it would impose undue hardship on
CML to accommodate Mr. Gibbons.

Mr. Lewis testified that while he has employees who are the same age as Mr. Gibbons
or older, he finds them slower compared to younger employees. Mr. Lewis said that because
older employees are both slower in performing their job and they are more prone to workplace
accidents, he prefers a work force of younger employees.

Mr. Lewis’ evidence is that he employs workers of all ages, but he prefers younger
workers because he perceives them to be more physically capable and less prone to workplace
accidents. I find that this is not a standard that has been adopted by the Respondents but
simply a preference on the part of Mr. Lewis based on stereotypes. Attributing characteristics
to all members of a group, such as saying that older workers are less capable and more prone
to accidents than younger workers, without evidence, is stereotyping, and when related to

16
characteristics protected by the Code, is discrimination. Human rights legislation is intended to
identify and protect against such stereotypes, and to ensure that where possible, individuals
can be accommodated.

2024 BCHRT 220 (CanLII)

The Respondents’ reason for why they terminated Mr. Gibbons’ employment is not a
standard adopted for a purpose rationally connected to the job, but discrimination based on
stereotypes about older workers. I find the Respondents have not established a justification
pursuant to s.13(4) of the Code.

V REMEDIES

A. Section 37(2)(a) Cease the Contravention

Having found the complaint to be justified, I order the Respondents to cease their
contravention of the Code, and to refrain from committing the same or similar discrimination,
pursuant to s. 37(2)(a).

B. Section 37(2)(b) Declaratory Order

Under s. 37(2)(b) of the Code, the Tribunal may make a declaratory order that the
conduct complained of, or similar conduct, is contrary to the Code. In the circumstances of this
case, I consider it appropriate to make such an order. I declare that the Respondents’ conduct
of terminating Mr. Gibbons’ employment on the basis of his age is discrimination contrary to s.
13 of the Code.

C. Section 37(2)(d)(ii) Compensation – Lost Wages

Section 37(2)(d)(ii) of the Code gives the Tribunal discretion to compensate a person for
all, or a part, of any wages or salary lost, or expenses incurred because of discrimination. The
purpose of wage loss compensation is to restore a complainant, to the extent possible, to the
position they would have been in had the discrimination not occurred. There must be a causal
connection between the loss claimed and the discriminatory conduct: Gichuru v. Law Society of
British Columbia (No. 9), 2011 BCHRT 185 [Gichuru] at para. 298-303, upheld in 2014 BCCA 396.

17
 It is undisputed that Mr. Gibbons was earning approximately $48,000 annually or $4,000
monthly, and that he was able to return to full-time hours and duties as a tree climber as of
March 5, 2020.

2024 BCHRT 220 (CanLII)

Mr. Gibbons seeks an award of $50,000 for lost income. He says this figure represents
his lost income for the two-year period from March 5, 2020 (when he was cleared to return to
work) to March 5, 2022, less his earnings during that period from self-employment of $32,000
and CERB payments of $14,000.

The Respondents argue that the amount sought by Mr. Gibbons is too high and no
award should be made. They say CML operates in a “boom or bust” industry and they would
not have had any work for Mr. Gibbons in any event. Further, they argue that Mr. Gibbons
failed to reasonably mitigate.

I am satisfied that, but for the discrimination, Mr. Gibbons would have returned to work
as a tree climber and would have continued to work in that role.

I now turn to determining the amount of compensation. I must exercise my discretion

on a principled basis taking into account the remedial purposes of the Code: Gichuru at
para 303.

For the reasons that follow, I am satisfied that an award of $8,000 for lost wages is
appropriate in the circumstances, representing the approximately 2-month period from when
Mr. Gibbons was ready to return to work and when he started his own business.

I pause to note that I do not need to address Mr. Gibbons’ proposed deductions,
because I have not awarded lost wages for the period after he started his own business and
CERB payments are not deductible from damage awards: Yates v. Langley Moto Sport Centre
Ltd., 2022 BCCA 398.

The Tribunal may reduce a wage loss award if a complainant has not reasonably
mitigated their loss: Benton v. Richmond Plastics, 2020 BCHRT 82 at para. 145. The duty to
mitigate requires a person to take reasonable steps to avoid or reduce their financial losses,
18
including by looking for other comparable work. The onus is on the Respondents to establish
those factors: Weihs v. Great Clips and others (No. 2), 2019 BCHRT 125 at para. 100. The
Respondents must show Mr. Gibbons failed to take reasonable steps and that alternative
employment could have been found had he taken those steps: Okano v. Cathay Pacific Airways

2024 BCHRT 220 (CanLII)

Limited, 2022 BCSC 881 at para. 23.

I am satisfied the Respondents have established that Mr. Gibbons did not take
reasonable steps to mitigate his losses. I am persuaded that the steps taken by Mr. Gibbons
before he started his own business was not reasonable under the circumstances.

Mr. Gibbons testified that he contacted potential employers by phone because in his
industry “my reputation is my resume.” Mr. Gibbons’ evidence is that he did not send out any
resumes to potential employers or fill out any applications. Instead, he said that he called every
potential employer, which he said is about 15 local companies. He said he limited his search to
companies where he would not be required to stay at work camps because he did not want to
be away from his family for extended periods. There are no documentary materials to support
Mr. Gibbons’ testimony.

Mr. Lewis argues that Mr. Gibbons did not take reasonable steps to mitigate his losses.
He disputes Mr. Gibbons’ evidence that he engaged in any job search and says that there is no
documentary evidence to support that he contacted potential employers. He says that the
forestry industry is always in need of workers, and it is unreasonable that Mr. Gibbons limited
his job search to local tree service companies. Mr. Lewis specifically says Mr. Gibbons could
have taken a job with a forestry and logging company to mitigate his wage loss. He says that if
Mr. Gibbons did engage in a job search it was merely a cursory attempt, limited in scope, for a
short duration, and not reasonable under the circumstances.

I am persuaded that Mr. Gibbons’ efforts were not reasonable. While I appreciate that
Mr. Gibbons says he took some steps to find alternate employment, I find the evidence about
his job search to be sparse. Mr. Gibbons said he called about 15 tree service companies before
giving up his search.

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 Even with a reasonable grace period to account for the impacts of discrimination and
the challenges of a job search during the early months of the COVID-19 pandemic, I find Mr.
Gibbons’ efforts were not particularly diligent. I find that making approximately 15 phone calls
does not amount to reasonable mitigation. Mr. Gibbons was unable to recall when he began his

2024 BCHRT 220 (CanLII)

job search, when he contacted the 15 companies, or when he concluded that jobs were
unavailable through this method. I find that after the initial attempts were unsuccessful, it was
reasonable for Mr. Gibbons to broaden his job search: Behm v. 6-4-1 Holdings and others, 2008
BCHRT 286 at para. 73. Mr. Gibbons did not testify that he checked other job postings or
attended an employment office. I find that Mr. Gibbons likely could have found alternate
employment if he had made a more committed effort to do so: McIntosh v. Metro Aluminum
Products and another, 2011 BCHRT 34 at paras. 146-147.

Further, because Mr. Gibbons attributes the difficulties in finding a job to the
restrictions placed on businesses during the early months of the COVID-19 pandemic, I also find
it would have been reasonable for Mr. Gibbons to follow up with the companies he says he
contacted, when the COVID-19 restrictions were lifted or relaxed. There is no evidence that Mr.
Gibbons followed up with the companies he says he contacted.

I do not agree with Mr. Lewis’ argument that Mr. Gibbons’ obligation to mitigate
requires him to apply for, or take, any job, whether or not it is suitable: LeBlanc v. Dan’s
Hardware et al., 2001 BCHRT 32 at para 176. Mr. Gibbons said he prioritized his parenting
obligations and did not pursue forestry jobs that required him to reside in work camps. I find
this to be reasonable and Mr. Gibbons’ failure to pursue job opportunities that would have
interfered with his obligations to his family is not a factor I consider in my calculations.

Finally, I consider the evidence that Mr. Gibbons, at some point in 2020, decided to give
up looking for another job and instead started his own landscaping business. As noted above,
the evidence about Mr. Gibbons’ own business is vague. Mr. Gibbons did not recall when he
began his business venture but says it was after an unsuccessful job search and working for his
father-in-law for a brief period. The evidence before me is that Mr. Gibbons began distributing
flyers advertising his business in or about May 2020.

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 I accept that Mr. Gibbons stopped looking for work in May 2020. As I found above, Mr.
Gibbons’ job search was not particularly diligent or thorough. The evidence before me is that
after contacting about 15 potential employers and working briefly with his father-in-law, Mr.
Gibbons decided he would start his own business instead of continuing his job search. While

2024 BCHRT 220 (CanLII)

there is nothing wrong with choosing to start his own business, because the evidence is that
Mr. Gibbons did not make meaningful efforts to seek employment, he cannot look to the
Respondents to make up the shortfall in his earnings. I find that Mr. Gibbons, in choosing to
embark on a business venture assumed the risks and responsibilities flowing from his business:
Gill v. Grammy’s Place Restaurant and Bakery Ltd.2003 BCHRT 88 at para. 159.

I find the Respondents have met their onus to establish that Mr. Gibbons failed to
mitigate his losses. The evidence before me is that Mr. Gibbons made some cursory efforts to
mitigate which stopped in or about May 2020. Therefore, I find an appropriate award for wage
loss is for the two-month period of March 5, 2020, to May 2020.

Accordingly, I issue an award in Mr. Gibbons’ favour in the amount of $8,000 for lost
wages pursuant to section 37(2)(d)(ii) of the Code.

D. Section 37(2)(d)(iii) Injury to Dignity, Feelings and Self-Respect

Mr. Gibbons seeks an award of $22,500 for injury to his dignity, feelings, and self-
respect.

Under s. 37(2)(d)(iii) of the Code, the Tribunal has the discretion to award compensation
for injury to dignity. The purpose of these awards is compensatory, not punitive. Determining
the amount of an injury to dignity award depends on the specific facts and circumstances in a
given case. At the same time, for the purposes of consistency and fairness, it is often helpful to
consider the range of awards made in similar cases.

To determine an appropriate award, the Tribunal generally considers three broad

factors: the nature of the discrimination, the complainant’s social context or vulnerability, and
the effect on the complainant: Basic v. Esquimalt Denture Clinic and another, 2020 BCHRT 138

21
at para. 193; Gichuru at para. 260. Ultimately, the amount of an injury to dignity award is
“highly contextual and fact-specific”: Gichuru at para. 256. While the Tribunal may consider
awards in other cases, the exercise is not to identify a “range” established in other cases.
Rather, it is to try to compensate a complainant for the actual injury to their dignity: University

2024 BCHRT 220 (CanLII)

of British Columbia v. Kelly, 2016 BCCA 271 at paras. 59-64; Francis v. BC Ministry of Justice (No.
5), 2021 BCHRT 16 at para. 176.

I begin with the nature of the discrimination. The Tribunal has described termination of
employment as the “ultimate employment-related consequence”: Nelson v. Goodberry
Restaurant Group Ltd. dba Buono Osteria and others, 2021 BCHRT 127 at para. 34. The Tribunal
has recognized that loss of employment often warrants compensation at the high end of the
range given the significance of employment to a person’s identity, self-worth, and dignity: Ms. K
v. Deep Creek Store and another, 2021 BCHRT 158 at para. 131.

This is a case where the conduct of the Respondents compounded the seriousness of
the discrimination. Mr. Lewis did not respond to any of Mr. Gibbons’ attempt to communicate
from November 2019 onwards. The evidence is that Mr. Lewis told Mr. Gibbons’
physiotherapist that he was not willing to accommodate a graduated return to work but did not
communicate at all with Mr. Gibbons to provide clarification, answer questions or confirm the
status of his employment. Mr. Lewis only communicated with Mr. Gibbons on July 30, 2020,
when he sent a text message telling him to “walk away” and that he was “replaced and thats
nature of the game”.

Turning to the next consideration, the social context of the discrimination is one of
employer and employee. There is an inherent power imbalance between employers and
employees that make employees vulnerable, especially at the time of
termination: Senyk v. WFG Agency Network (No. 2), 2008 BCHRT 376 at paras. 463-464.

Further, in my view not letting an employee know the status of their employment and
leaving it to them to infer they will not be returning to work after an injury compounds the

22
negative impact by unnecessarily causing anxiety, stress, and uncertainty when they are
particularly vulnerable.

Finally, I consider the effect of the discrimination on Mr. Gibbons.

2024 BCHRT 220 (CanLII)

Mr. Gibbons testified about the effect of the discrimination and the impact on his life.
His evidence was that he was disappointed when he did not hear back from Mr. Lewis about
returning to work. He said that he was shocked to hear through his physiotherapist that Mr.
Lewis would not accommodate a return to work and the complete lack of communication that
followed was confounding. He said that working with trees is a fundamental part of his self-
identity and hearing that he could not return to work caused him great confusion and distress.

Mr. Gibbons’ physiotherapist testified that Mr. Gibbons was actively engaged in the
rehabilitation process and was eager to heal so he could return to work. She said Mr. Gibbons
had a positive attitude during his physiotherapy sessions. She said Mr. Gibbons was shocked
and disappointed when she told him Mr. Lewis said there was no job to return to at CML.

Mr. Gibbons’ spouse provided testimony about her observations. She said Mr. Gibbons
was visibly angry and upset when he learned through his physiotherapist that the Respondents
were not accommodating a return to work. She described him “vibrating with anger” and
feeling he was betrayed after a lengthy friendship with Mr. Lewis. She said that he became
moody and withdrawn in his interactions with others, began drinking more, and having bouts of
anger. She described the negative impact Mr. Gibbons’ behaviour had on their relationship and
his relationship with their young daughter. She said the financial impact was significant as she
needed to pay for all expenses, and they had to give up on plans for purchasing property and
relocating to be near extended family.

Mr. Lewis disputes that the negative impact described by Mr. Gibbons’ spouse is
attributable to the Respondents. He says that based on his lengthy association with Mr.
Gibbons he knows that the behaviours described by Mr. Gibbons’ spouse are not uncommon
for him. He argues that what has been described is typical for Mr. Gibbons. He also says Mr.

23
Gibbons has since started his own business and has been seen working with trees, and
therefore it can be inferred that the Respondents’ conduct had no negative impact on him.

I am not persuaded by Mr. Lewis’ arguments for two reasons. First, Mr. Gibbons’

2024 BCHRT 220 (CanLII)

physiotherapist gave undisputed testimony that during his leave Mr. Gibbons was in good
spirts, cooperative, diligent about his rehabilitation, and eager to return to work. Her
observation was that Mr. Gibbons was optimistic until he learned that Mr. Lewis would not
allow him to return to work. In this instance I prefer the testimony of the physiotherapist about
Mr. Gibbons’ mood and state of mind because she had the opportunity to observe Mr. Gibbons
regularly during the rehabilitation program, and her observations are documented in her
contemporaneous notes.

Second, I am not persuaded that Mr. Gibbons’ ability to move forward with his life by
starting his own business and find some happiness working in nature should be counted against
him in assessing the effect of the discrimination. I accept Mr. Gibbons’ evidence that he was
profoundly hurt and felt like a lesser person because of the discrimination.

I find the impact of the discrimination on Mr. Gibbons was serious. During a period
when he was especially vulnerable and looking forward to being able to return to work for
stability in his life, he was placed in a state of uncertainty and cut off from communications
with his employer.

Mr. Gibbons seeks an award of $22,500 for injury to dignity. He refers me to four cases.
The awards in the cases cited range from $18,500 (Mr. D v. Path General Contractors and
Dennis Donovan, 2023 BCHRT 46), $20,000 (Cyncora v. Axton Inc., 2022 BCHRT 36), $25,000
(Bayongan v. Shimmura et al, 2023 BCHRT 27) to $30,000 (Wells v. Langley Senior Resources
Society, 2018 BCHRT 59). While none of the cases mirror the present circumstances exactly, I
find them useful to the assessment of an injury to dignity award in the present case.

First, in Wells, the Tribunal awarded $30,000 to the complainant, a person with a mental
disability, after finding that her disability was a factor in the respondent’s decision to terminate
her employment. I find Wells is distinguishable from the present case because there the

24
Tribunal found that the injury to dignity was compounded by the fact that the respondent
directed abuse at the complainant prior to the termination and the respondent made public
statements about the complainant after the termination.

2024 BCHRT 220 (CanLII)

Second, in Bayongan, the complainant, a temporary foreign worker who was battling
cancer, was fired by the respondents. The Tribunal awarded $25,000 for injury to dignity. The
Tribunal recognized that the discrimination led to a harsh impact on the complainant because
of her particular vulnerability as a temporary foreign worker. I find the circumstances in
Bayongan where the complainant lost her employment, and consequently her status in Canada,
and health benefits, to be harsher than the evidence of the effects of discrimination on Mr.
Gibbons.

Next, in Cyncora, the complainant, a person with mental disabilities, was fired and
reported worsening symptoms of his mental health. The complainant asked for an injury to
dignity award of $25,000. The Tribunal recognized that the complainant’s pre-existing mental
health conditions contributed to his vulnerability and negative impact of discrimination. The
Tribunal noted that the evidence of the impact of discrimination on the complainant was not as
severe as other cases cited and exercised its discretion to award $20,000.

Finally, in Mr. D, the Tribunal awarded the complainant, a person diagnosed with
Hepatitis C who was fired from his job, $18,500 for injury to dignity. In coming to this amount
the Tribunal recognized the evidence of the severe effect the discrimination had on the
complainant’s dignity and self-worth. The Tribunal accepted the complainant’s evidence that he
was made to feel he was a lesser person, unworthy of friendship, work, or participating
normally in society.

Considering the specific context, including the way that the discrimination occurred and
the impact that the discrimination had on Mr. Gibbons’ life, I find it appropriate to award the
full amount sought of $22,500 for injury to dignity, feelings, and self-respect.

25
 E. Interest

The Tribunal has the discretion to award interest on awards. An award of interest is part
of the compensatory nature of the Tribunal’s awards, recognizing that but for the

2024 BCHRT 220 (CanLII)

discrimination a complainant would have had the use of money now awarded. The interest
places the complainant in the economic position they would have been in but for the
discrimination: Vasil v. Mongovius and another (No. 3), 2009 BCHRT 117.

I find it appropriate to order pre-judgment interest for wage loss and post-judgment
interest on all the amounts awarded as part of an attempt to fully compensate Mr. Gibbons for
the loss and injury. The interest is to be paid based on the rates set out in the Court Order
Interest Act.

VI CONCLUSION

I make the following orders:

a. I find that the Respondents’ discriminated against Mr. Gibbons’ contrary to s.

13(1)(a) and (b) on the ground of age: s. 37(2)(b).

b. I order the Respondents to cease and refrain from committing the same or a
similar contravention of the Code: s. 37(2)(a).

c. I order the Respondents to pay Mr. Gibbons $8,000.00 in lost wages:

s.37(2)(d)(ii).

d. I order the Respondents to pay Mr. Gibbons $22,500.00 as compensation for

injury to his dignity, feelings, and self-respect: s. 37(2)(d)(iii).

e. I order the Respondents to pay Mr. Gibbons pre-judgment interest on the wage
loss award of $8,000 until paid in full based on the rates set out in the Court
Order Interest Act.

26
f. I order the Respondents to pay Mr. Gibbons post-judgment interest on the wage
loss and injury to dignity awards until paid in full, based on the rates set out in
the Court Order Interest Act.

2024 BCHRT 220 (CanLII)

Edward Takayanagi
Tribunal Member

27