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HUMAN RIGHTS AND PRIVACY ISSUES - Discrimination - Duty to accommodate - Undue hardship - Grounds - Disability - Appeals - Jurisdiction of court

Wednesday, December 13, 2017 @ 8:35 AM  


Appeal by a grievor, Boxall, from a labour arbitration award in favour of the respondent, BC Place. The grievor worked as an event security officer for the respondent in unionized employment. His employment was terminated for alleged culpable conduct. During the grievance of the dismissal, the grievor was assessed and diagnosed with Autism Spectrum Disorder. The respondent recognized its obligation to accommodate the grievor's disability, but no agreement was reached on appropriate accommodation. A labour arbitrator directed the respondent to explore further accommodation options. The arbitrator declined to award the grievor damages for injury to dignity, feelings, and self-respect, as the accommodation offered was not unreasonable and was offered in good faith. The grievor appealed. The respondent sought to quash the appeal on the basis that the grievor's right of appeal was within the sole jurisdiction of the Labour Relations Board. The grievor submitted his appeal raised a question of general law regarding human rights principles related to the duty to accommodate and remedies for the breach thereof.

HELD: Appeal quashed. The real basis of the labour arbitrator's award related to whether the respondent demonstrated accommodation of the grievor was not possible without undue hardship. The arbitrator ruled that the respondent's determination regarding accommodation was premature. The arbitrator found that if the respondent breached its duty, there was no basis to award damages. Although the duty to accommodate arose from the collective agreement, the arbitration award did not turn upon its interpretation. Similarly, the arbitration award did not involve an interpretation of human rights principles. The arbitration award involved the application of settled principles of general law to the facts. In such circumstances, the Court did not have jurisdiction to hear the grievor's appeal.

Boxall v. B.C. Pavilion Corp. (B.C. Place), [2017] B.C.J. No. 2427, British Columbia Court of Appeal, A.W. MacKenzie, D.C. Harris and B. Fisher JJ.A., November 15, 2017. Digest No. TLD-December112017006