Date Issued: June 25, 2021 File: 18174 BETWEEN: COMPLAINANT AND: Indexed as: Singh v. Dodd's Furniture (No. 2), 2021 BCHRT 85 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 Manpreet Singh Dodd's Furniture RESPONDENT

REASONS FOR DECISION Tribunal Member: Amber Prince Agent for the Complainant: Samantha Norton (law student) Counsel for the Respondent: Gurmail Manhas Date of Hearing: April 68, 2021 Location of Hearing: Video conference 2021 BCHRT 85 (CanLII) 1 I INTRODUCTION Manpreet Singh says that his former employer, Dodd's Furniture [Dodd's], discriminated against him based on his physical disability, contrary to s. 13 of the Human Rights Code [Code]. Dodd's has been a furniture retail company since 1977. It has three locations on Vancouver Island. It is owned by Mr. Gordy Dodd. His son, Mr. Love Dodd, is the president at Dodd's, and plays a more active role in the day to day oversight at the company since Gordy Dodd is semiretired. I refer to them as Gordy Dodd and Love Dodd to be clear about who I am referring to in this decision. Manpreet Singh started as an employee at Dodd's around July 2014 as a customer service representative. Within a few months of his employment, Love Dodd offered Mr. Singh a new position at Dodd's: Assistant Manager at the Victoria warehouse. Mr. Singh accepted this position. Mr. Singh continued in his position as an Assistant Manager at Dodd's until he injured his back, lifting a sofa at work, in early July 2017. At the direction of his health care providers, Mr. Singh was off work on medical leave for about 5 to 6 weeks, after which his doctor recommended a return to work on light duties for a period of time. After Mr. Singh notified his employer that he was ready toreturn to work, Dodd's informed Mr. Singh that his Assistant Manager position was no longer available, because it hired a new employee to fill that role. Dodd's told Mr. Singh that he could return to work as an Assembly Worker at the same rate of pay and hours of work as the Assistant Manager position. Mr. Singh considered this new position a demotion. He also felt that the Assembly Worker position was more physically demanding and would hamper his recovery from his back injury. Dodd's told Mr. Singh this was the only position it would offer to him. Mr. Singh refused the Assembly Worker position and filed a human rights complaint [Complaint]. His Complaint alleges, in essence, that Dodd's discriminated against him when it refused to return him to his preinjury position and otherwise failed to accommodate his injury when he returned from medical leave. In this decision, it is my job to decide, on a balance of probabilities: 2021 BCHRT 85 (CanLII) 2 A. whether Dodd's discriminated against Mr. Singh when it did not return him to his preinjury position but assigned him a different job following a medical leave; B. if Dodd's discriminated against Mr. Singh, what is the appropriate remedy; and C. is Dodd's entitled to a cost award against Mr. Singh as a result of any improper conduct by Mr. Singh during the course of his Complaint? II DECISION For the reasons that follow, I have decided that: a. Mr. Singh's complaint is justified; b. Dodd's conduct, described in this case, contravened s. 13 of the Code; c. I order Dodd's to stop this discrimination and refrain from committing the same or a similar contravention: s. 37(2)(a) and (b) of the Code; d. I award Mr. Singh $10,000 for injury to his dignity, feelings and selfrespect: s. 37(2)(d)(iii); including postjudgement interest as set out in the Court Order Interest Act, RSBC 1996, c. 79; and e. Dodd's is not entitled to a cost award. III EVIDENCE AND FACTS In this part of the decision I set out my findings of fact.I have reviewed and considered all of the evidence submitted by the parties, through the witnesses and documents. In terms of witnesses, Mr. Singh testified on his own behalf and also called his spouse, Gurdit Kaur as a witness. Dodd's Furniture called 5 witnesses: Love Dodd, Gordy Dodd and other employees or former employees at Dodd's: April McLeod, Mauricio Vazquez Castillo, and Sameer Sanam. 2021 BCHRT 85 (CanLII) 3 In terms of documents, the parties compiled and entered into evidence a 436page Joint Book of Documents. With the parties' consent, I accepted the entire Joint Book of Documents as evidence at the hearing (as Exhibit 1) whether it was referred to or not. I do not refer to all of the evidence that I heard and reviewed. I set out only that evidence required to come to my decision. At the hearing, the parties and witnesses disagreed on some key facts. First, the parties disagreed about Mr. Singh's preinjury position at Dodd's, the physicality of that position and Mr. Singh's preinjury job performance. Dodd's led evidence that Mr. Singh's preinjury position involved more physical labour than the postinjury position Dodd's assigned him. Dodd's also gave evidence that both positions were of equivalent stature. Second, Dodd's submitted that Mr. Singh's back injury did not amount to a disability, protected under the Code. Third, Dodd's gave evidence that the new postinjury position it offered Mr. Singh was unrelated to his injury, but part of a planned restructuring at Dodd's. I need to make findings about these contested facts because they help me to decide the following issues, addressed in my analysis below: (1) Whether Mr. Singh had a disability, protected under the Code, while employed at Dodd's. (2) If Mr. Singh had a disability, did he suffer an adverse impact regarding his employment when Dodd's changed his position? (3) If so, was Mr. Singh's disability a factor in the adverse impact? (4) If so, did Dodd's reasonably accommodate Mr. Singh's disability? Where there was disagreement in the evidence, my findings and reasons are set out below. The Tribunal makes a finding of fact by determining which evidence, given at a hearing, is more plausible, on a balance of probabilities: Mr. S v. Cannae Holdings, 2018 BCHRT 47 at para. 12. Where necessary to do so, I have assessed credibility. In so doing, I have applied the principles summarized in Bradshaw v. Stenner, 2010 BCSC 1398, affirmed in 2012 BCCA 296, leave to appeal refused, [2012] S.C.C.A. No. 392 at para. 186. Below I set out the relevant facts 2021 BCHRT 85 (CanLII) 4 and my findings beginning with Mr. Singh's preinjury position, duties and performance at Dodd's. A. Mr. Singh's preinjury position, duties and performance at Dodd's I heard conflicting evidence from Dodd's about whether Mr. Singh was an assistant manager prior to his injury. Therefore, I begin with making a finding about what Mr. Singh's preinjury position was. April McLeod testified that she was unaware of Mr. Singh's position as an assistant manager. However, there is no dispute that both Mr. Singh and Gordy Dodd signed an offer of employment letter on November 1, 2014 indicating that Mr. Singh was the Assistant Manager at the Warehouse: Exhibit 1, p. 10.As a result, I find that Mr. Singh was the Assistant Manager at the Victoria warehouse from November 1, 2014 until he was injured in early July 2017. There was also a dispute about the physical demands of Mr. Singh's preinjury position. April McLeod and Love Dodd testified that Mr. Singh's Assistant Manager position involved lifting furniture regularly. Dodd's led evidence that the new Assembly Worker job they offered Mr. Singh was less physically demanding and an appropriate accommodation of Mr. Singh's back injury. Mr. Singh testified that his Assistant Manager position involved occasional lifting and offloading delivery trucks. He said the bulk of his work involved paperwork related to the duties set out in his offer of employment letter, including: assisting the Warehouse Manager in the successful and timely flow of production work; assisting with and overseeing all work that is setup during the day; working with the Warehouse Manager to ensure accurate and timely shipping and receiving; maintaining an inventory control system; assigning warehouse workers to duties; and preparing work schedules: Exhibit 1, p. 10. Mr. Singh's direct superior, Mr. Sanam, also testified that Mr. Singh was most often doing paperwork, and on the computer. Mr. Singh, Gordy Dodd, and Mr. Sanam all testified that Mr. Singh had some computer skills. Mr. Singh and Mr. Sanam testifiedthat Mr. Singh's computer skills were a factor in Dodd's offering him an Assistant Manager position. It does not make sense to me that Mr. 2021 BCHRT 85 (CanLII) 5 Singh's Assistant Manager duties would have entailed a lot of physical labour since a factor in his promotion to the role was his computer skills. Based on all the evidence, I find that Mr. Singh's Assistant Manager position was primarily a desk job with occasional lifting. There was also some dispute about Mr. Singh's performance while at Dodd's. Dodd's led evidence that it was moving Mr. Singh to the Assembly Worker position in part because of Mr. Singh's poor work performance at Dodd's. Dodd's gave evidence, for example, that Mr. Singh may have engaged in nonbusiness computer and internet usage at work: Exhibit 1 at p. 325 339. Mr. Singh testified that he created a few Word documents for himself and Ms. Kaur during work breaks. He denied downloading movies and other videos. Mr. Singh, Mr. Vazquez Castillio and Love Dodd all testified that other employees had access to the office and computer used by Mr. Singh. As a result, Dodd's has not persuaded me that Mr. Singh engaged in inappropriate computer and internet usage at work. I accept that excessive downloads created IT challenges for the Dodd's. However, other employees could have downloaded videos rather than Mr. Singh. There is insufficient evidence before me that Mr. Singh's computer usage at work was inappropriate, or was deemed to be a performance issue by Dodd's. The November 1, 2014 offer of employment letter indicates that Mr. Singh's performance would be reviewed semiannually. If this occurred, there was no evidence produced at the hearing that Mr. Singh received a negative performance review. Rather, Mr. Singh continued in his role as Assistant Manager until he was injured in early July, 2017. If Mr. Singh's performance at Dodd's was poor, I would have expected evidence to support this, such as evidence of his progressive discipline from 2014 to 2017. There was none. B. Mr. Singh's back injury 1. The date of injury I heard conflicting evidence about whether Mr. Singh was injured on Saturday July 1 or Sunday July 2, 2017. Mr. Singh recanted his earlier reports to Worksafe BC [Worksafe] that he 2021 BCHRT 85 (CanLII) 6 was injured on July 1 and explained this discrepancy in later reports and at the hearing: Exhibit 1 at p. 27. I was satisfied by Mr. Singh's explanation at the hearing. I also note that his testimony about the date of his injury was supported by the testimony of Gurdit Kaur, Ms. McLeod and Mr. Sanam. In any event, the exact date of Mr. Singh's injury, and motivations by either party to assert a certain date, is not integral to my decision. 2. The nature of Mr. Singh's back injury and related restrictions and limitations Mr. Singh's undisputed evidence is that he injured his back lifting a sofa at work. On July 5, 2017, Mr. Singh saw chiropractor Dr. Christopher Walker: Exhibit 1 at p. 147. Upon examining Mr. Singh, Dr. Walker found moderate left sacroiliac joint restriction, dorsal sacral ligament tenderness, moderate lumbar paraspinal muscle hypertonicity (spasm) and tenderness, and lio lumbar ligament tenderness. Dr. Walker diagnosed Mr. Singh with acute, moderate lumbar sprain / strain with associated myospasm: Exhibit 1 at p. 158. On July 11, 2017, Mr. Singh made a Worksafe Claim related to his back pain. Worksafe accepted Mr. Singh's claim for lower back sprain / strain, which included wage loss benefits between July 4, 2017 and September 13, 2017: Exhibit 1, p. 26. In accepting Mr. Singh's claim, Worksafe relied on Dr. Walker's assessment of Mr. Singh's back injury, and related restrictions and limitations. On July 18, 2017 Dr. Walker submitted to Worksafe a completed "Chiropractor's First Report" form: Exhibit 1 at p. 157. The form asks whether Mr. Singh is medically capable of working full duties, full time. If not, the form asks about Mr. Singh's health restrictions and a time estimate of when Mr. Singh could return to work in any capacity. Dr. Walker responded that Mr. Singh was not capable of full duties, full time as of July 18, 2017. He estimated that Mr. Singh could return to work in 1420 days, and that Mr. Singh's return to work should only involve light duties: "Patient is not to be lifting, pushing, pulling, trunk flexing. Sitting for periods of no more than 20 minute[s] with frequent mini breaks interspersed through the day": Exhibit 1 at p. 158. 2021 BCHRT 85 (CanLII) 7 In a letter dated September 22, 2018, Dr. Walker confirmed that he treated Mr. Singh from July 5 - August 3, 2017. Dr. Walker indicated that Mr. Singh was unable to work during this time period, due to the severity of his back injury. As of August 3, 2017, Mr. Singh reported to Dr. Walker that his condition had improved by 90%, and that he would begin physiotherapy as part of an occupational rehabilitation [OR] plan as set out by Worksafe: Exhibit 1 at p. 288. Mr. Singh engaged in physiotherapy with the CBI Health Centre [CBI] from August 2 - September 6, 2017 as part of his OR plan: Exhibit 1 at p. 115. CBI assessed Mr. Singh on August 2, 2017 and advised Worksafe that Mr. Singh had: (1) slight limitations in the range of motion of his back; (2) guarded movements with manual handling; and (3) reported increased back pain with manual handling. CBI recommended that Mr. Singh participate in the OR program, which could offer "regional and global stretching and strengthening," work simulation tasks, and education on symptom management. CBI anticipated that Mr. Singh's participation in the OR program would increase his: tolerance to functional tasks, lower extremity strength, trunk range of motion, and lifting tolerance. CBI estimated that Mr. Singh could be discharged from the OR program and return to his preinjury position without limits by September 6, 2017: Exhibit 1 at p. 261. On August 18, 2017, Mr. Singh participated in another formal functional assessment with CBI. CBI reported the results of this assessment to Worksafe on August 21, 2017. CBI reported that Mr. Singh was progressing well in the OR program, and that his sitting tolerance had improved. However, CBI also observed that Mr. Singh was limited by reported lower back pain with manual handling, especially stopping: Exhibit 1 at p. 281285. CBI recommended that Mr. Singh continue in the OR program to increase his tolerance to manual handling. CBI concluded with an estimate that Mr. Singh would be fit to return to his preinjury occupation, without limits, following his discharge from the OR program, on or about September 14, 2017: Exhibit 1 at p. 280. On September 14, 2017 Worksafe issued a discharge report, stating: "Mr. Singh has been discharged safe to attempt a full return to work to his preinjury occupation without 2021 BCHRT 85 (CanLII) 8 limits" [underline mine]. Worksafe recommended that, following his discharge, Mr. Singh continue with: a home exercise program with stretching and strengthening to keep progressing in his recovery; pain and symptom management strategies; and pacing at work: Exhibit 1 at p. 114. C. The gradual return to work plan and aftermath 1. Mr. Singh learns he is not being returned to his preinjury position On August 11, 2017, Mr. Singh and a CBI staff member attended at Dodd's for a job site visit to investigate a gradual return to work plan. However, April McLeod, for Dodd's, advised Mr. Singh that his previous position, as an Assistant Manager, was no longer available to him. Mr. Singh testified that Ms. McLeod did not explain why his Assistant Manager position was no longer available, only that Dodd's could offer him a position assembling furniture instead. Mr. Singh testified that he did not "argue" with Ms. McLeod further about this change. As a result of this change of Mr. Singh's position, the gradual return to work plan was not completed: Exhibit 1 at p. 114. CBI's Job Site Visit Report says: "The employer reported that they were able to accommodate the worker working in the warehouse when he returned to work however these job demands are significantly heavier that the preinjury occupation": Exhibit 1 at p. 129. 2. Dodd's rationale for removing Mr. Singh from his preinjury position Dodd's says that Mr. Singh's new role, assembling furniture, was part of a broader re structuring at Dodd's, and had nothing to do with Mr. Singh's injury. I heard testimony from both Love Dodd and April McLeod that plans were made to change warehouse worker positions, including Mr. Singh's position, prior to Mr. Singh being injured. However, Ms. McLeod also testified that she consulted with a human resources company for the express purpose of seeking guidance on how to address Mr. Singh's injury while he was on medical leave. This evidence indicates that the new role Mr. Singh was offered was related to, at least in part, his injury. Based on her consultation with a human resources company, Ms. McLeod testified that she believed: 2021 BCHRT 85 (CanLII) 9 (1) She did not have to return Mr. Singh to his Assistant Manager position, upon his return from medical leave. (2) Rather, she simply had to find Mr. Singh any position at Dodd's at the same hours and rate of pay as his Assistant Manager position. (3) As a result, Ms. McLeod filled Mr. Singh's Assistant Manager position while he was on medical leave. (4) She filled his Assistant Manager position with a new a worker who was subject to a probationary period. (5) She did not return Mr. Singh to his Assistant Manager position when he was medically cleared to do so. (6) Instead, Ms. McLeod preferred and retained the new worker for the Assistant Manager position, and offered Mr. Singh the Assembly Worker position instead. Ms. McLeod's evidence indicates that Mr. Singh's back injury and related medical leave was a factor in Dodd's unilaterally removing Mr. Singh from his Assistant Manager position to the Assembly Worker position. I also weigh Love Dodd's testimony on this point - that plans were made to change warehouse worker positions before Mr. Singh's injury - with the email he sent to Mr. Singh on September 26, 2017, which states: "You were injured and as such we created a new position at the same rate of pay and with the same hours": Exhibit 1 at p. 423 [underline is mine]. This email indicates that Mr. Singh was offered the new position because he was injured, and not because of Mr. Singh's performance issues or because of a broader restructuring. 3. Mr. Singh's rationale for refusing the new postinjury position Mr. Singh testified that he did not return to work at Dodd's for two reasons: One, he considered the new Assembly Worker position a demotion; and two, he determined that the new position was more physically demanding than his old position and would aggravate his back injury. 2021 BCHRT 85 (CanLII) 10 I find that moving Mr. Singh from his Assistant Manager position to the Assembly Worker position was a demotion. I make this finding even though Mr. Singh was offered the same rate of pay and hours for the Assembly Worker position. I make this finding after hearing testimony from Mr. Sanam that assembly work is a general worker position at Dodd's. Mr. Singh testified that being moved from an assistant manager position to a general assembly worker position was against his "selfrespect." Mr. Singh's Assistant Manager position came with a higher level of responsibility, authority, and status. Further, while Ms. McLeod testified that she was unaware that Mr. Singh was an Assistant Manager before injuring his back, she agreed under crossexamination that she and other workers would view a change in position from an assistant manager to a general warehouse position as a demotion. In my view, it was reasonable that Mr. Singh considered this unilateral change to his role from Assistant Manager to Assembly Worker as a demotion. I also find that the Assembly Worker position offered to Mr. Singh was more physically demanding than his Assistant Manager position. I find this for several reasons. First, both Mr. Sanam and Mr. Singh testified that the Assembly Worker position is more physically demanding than the Assistant Manager position. This is consistent with CBI's jobsite visit report that the new role being offered to Mr. Singh involved "significantly heavier" job demands that his pre injury position [as an Assistant Manager]: Exhibit 1 at p. 129. Second, Ms. McLeod testified that the Assembly Worker position would require some back engagement and bending forward and twisting at times. Dr. Walker's report indicated that Mr. Singh should be assigned "light duties" on his return to work and that he should avoid "trunkflexing": Exhibit 1 at p. 158. Third, Love Dodd testified that the Assembly Worker position would involve standing and assembling furniture all day. I find that such duties are more physically demanding than Mr. Singh's preinjury duties. As an Assistant Manager, Mr. Singh's work was more officeoriented, rather than the repetitive, manual labour involved with the Assembly Worker position. 2021 BCHRT 85 (CanLII) 11 Mr. Singh refused to accept the Assembly Worker position and Dodd's was not prepared to offer Mr. Singh his previous job back. This culminated in the email from Love Dodd to Mr. Singh on September 26, 2017: With respect to termination pay, you were not and have not been terminated. You were injured and as such we created a new position at the same rate of pay and with the same hours. We have done everything possible to accommodate you ... If you do not show to start training in your new position by Thursday September 29th, we will consider that your resignation: Exhibit 1, p. 423. Mr. Singh did not return to Dodd's. He became a cab driver instead, working 8 days in August and a day in September 2017. Mr. Singh's undisputed testimony was that his cab duties were modified related to his back injury. Initially he worked 79 hours instead of the usual 12 hour shift. He asked younger people to carry their own luggage for airport trips. I accept the evidence of Mr. Singh and Gurdit Kaur that Mr. Singh used heat pads, cold packs, stretching, standing and bed rest to support his return to work as a cab driver. I note that Mr. Singh's wageloss benefits through Worksafe were reduced on account of his taxi earnings. 4. Impact of Job Loss on Mr. Singh Mr. Singh testified that he was depressed as a result of losing his job at Dodd's. He felt that he had worked hard at Dodd's, assisted Dodd's with setting up other warehouses, and did not deserve to be demoted. He described being demoted at Dodd's as being against his "self respect." Both Mr. Singh and Ms. Kaur testified that Mr. Singh's loss of employment at Dodd's resulted in financial strain and extra stress on both of them as individuals, and as a married couple. This financial strain and stress were worsened by the fact that Ms. Kaur was a new immigrant to Canada at the time. I accept the evidence of Mr. Singh and Ms. Kaur that they experienced these hardships as a result of Mr. Singh losing his employment at Dodd's. 2021 BCHRT 85 (CanLII) 12 IV ANALYSIS A. Did Dodd's discriminate against Mr. Singh? In this part of the decision I set out the relevant legal principles. I then apply those principles to the evidence and facts, as I have found them, in this case. Section 13 of the Code prohibits discrimination in the area of employment. To succeed in his claim of discrimination under s. 13 of the Code, Mr. Singh must prove, on a balance of probabilities, that: (1) he has or had a physical disability; (2) he experienced an adverse impact in his employment; and (3) his physical disability was a factor in the adverse impact he experienced in his employment: Moore v. British Columbia, 2012 SCC 61 [Moore] at para. 33. If Mr. Singh establishes the three elements to prove discrimination, the burden shifts to Dodd's to justify its conduct or practice. If the conduct or practice cannot be justified, discrimination will be found to have occurred: He v. Kirin Mandarin Restaurant, 2018 BCHRT 112 [He v. Kirin] at para. 66. 1. Is Mr. Singh's back injury a disability? A disability is a protected characteristic under the Code. Dodd's argued that Mr. Singh had not shown he had a disability while employed at Dodd's. Dodd's said that Worksafe had cleared Mr. Singh to return to work no later than September 14, 2017. Further, Mr. Singh was able to drive a taxi for some days in August, 2017 and a day in September, 2017 before his anticipated fulltime return to work. Therefore, Dodd's submitted that Mr. Singh was fit to work after a short medical leave and simply refused work he was fit to do. The first question I must consider then, is whether Mr. Singh's back injury amounts to a disability. The Code does not define "disability," but the Tribunal generally accepts the following definition of physical disability: a physiological state that is involuntary, has some degree of permanence, and impairs the person's ability, in some measure, to carry out the normal functions of life: Boyce v. New Westminster (City), 1994 CanLII 18445 (BC HRT) at para. 50; followed in Holt v. Coast Mountain Bus Company, 2012 BCHRT 28 [Holt] at para. 206; Carney v. 2021 BCHRT 85 (CanLII) 13 ProCan Construction Group, 2020 BCHRT 62 [Carney] at para. 19. The Tribunal has also accepted that an injury amounts to a disability where the injury: limits an employee's ability to work, requires an absence from work, is supported by medical evidence, and results in receipt of Worksafe benefits for a period of time: Derek v. Aspen Planers, 2018 BCHRT 266 at para. 42; Carney at para. 20; Pacheco v. Local Pest Control, 2019 BCHRT 191 at para. 28. I am satisfied, on the evidence, that Mr. Singh's back injury amounts to a disability within the meaning of the Code. Mr. Singh's back injury created a physiological state that was involuntary. This injury required him to take a leave of absence from his preinjury position for 56 weeks. That absence was supported with medical evidence. During that time period Mr. Singh was physically unable to work, and required medical care and treatment. He received benefits from Worksafe to support his medical leave, occupational rehabilitation, and a gradual return to work plan. It was not until September 14, 2017 that Worksafe confirmed that Mr. Singh could return to his fulltime, preinjury position without limits. Mr. Singh was able to work parttime as a taxidriver, with modified and light duties, for 8 days in August and one day in September, 2017. However, I am satisfied that he was still limited in his ability to work and carry out other functions of normal life during that time period. He continued to need occupational rehabilitation during this time period. Also, he was unable to return to his preinjury position, without limits until September 14, 2017. Mr. Singh was injured on July 1, 2017 with an impaired ability to carry out his regular and fulltime work duties at Dodd's until September 14, 2017. Therefore, he was unable to carry out his normal work functions at Dodd's for twoandahalfmonths. In these circumstances, I am satisfied that Mr. Singh's back injury had some degree of permanence, and impaired, in some measure, his ability to carry out the normal functions of life. Therefore, I accept that Mr. Singh's back injury is a disability within the meaning of the Code. 2. Did Mr. Singh experience an adverse impact? Dodd's argued that Mr. Singh did not suffer an adverse impact when it changed his pre injury role of Assistant Manager to Assembly Worker. Dodd's says the roles are equivalent 2021 BCHRT 85 (CanLII) 14 because it offered the assembly worker position to Mr. Singh for the same hours and rate of pay as his assistant manager position. Dodd's says Mr. Singh refused this new position and therefore abandoned his employment at Dodd's. I do not accept Dodd's arguments. First, I have already found that Dodd's demoted Mr. Singh when it offered him the assembly worker position, instead of returning him to his Assistant Manager position. This is an adverse impact. Second, I find that Mr. Singh did not abandon his job. He lost his job as a direct result of being demoted, and unilaterally assigned assembly worker duties he could not perform due to his disability. These are also adverse impacts: Singh v. Dodd's Furniture, 2019 BCHRT 220 at para. 34. In essence, Mr. Singh was prevented from returning to work. It is uncontroversial that an employee's inability to return to their preinjury employment is an adverse impact: Peddle v. Novus Plants and another, 2013 BCHRT 138 [Peddle] at para. 28; Rassi v. Brighton College, 2016 BCHRT 29 at paras. 4447; He v. Kirin at para. 73. 3. Was Mr. Singh's disability a factor in the adverse impacts he experienced? Dodd's argued that Mr. Singh's disability was not a factor in changing his position. Dodd's submitted that it changed Mr. Singh's position as part of a broader restructuring plan, and as a result of Mr. Singh's poor performance at Dodd's. I do not accept these arguments. Even if Dodd's was restructuring around the time Mr. Singh was injured, it's clear on the evidence that Mr. Singh was ousted from his Assistant Manager position at Dodd's, as a direct result of Mr. Singh's medical leave. Dodd's put a new employee into that position. On this point I refer back to Ms. McLeod's evidence that she offered Mr. Singh the assembly worker position upon seeking guidance from a human resources company on how to address Mr. Singh's injury. I have also considered the email from Love Dodd to Mr. Singh on September 26, 2017, which stated: "You were injured and as such we created a new position at the same rate of pay and with the same hours": Exhibit 1 at p. 423. This evidence makes clear that, but for Mr. Singh's disability, Dodd's would not have hired a new employee to replace him as Assistant Manager. Therefore, Mr. Singh's disability was a factor in him being demoted to an assembly worker position and losing his Assistant Manager position. Mr. Singh's loss of employment at 2021 BCHRT 85 (CanLII) 15 Dodd's directly flows from this demotion to a position that he could not perform as a result of his disability. I have also already found that Dodd's did not provide sufficient evidence of any performance issues on Mr. Singh's part. Rather, I find that Mr. Singh's disability was a central factor in Mr. Singh's demotion and loss of employment at Dodd's. I note that, in order to prove discrimination, Mr. Singh does not need to prove that his disability was the sole or even primary factor in the adverse impacts he experienced at Dodd's; just that his disability was a factor: Peddle at para 32. Therefore, I find, on a balance of probabilities, that Mr. Singh has met all of the Moore criteria to prove discrimination. He has established that Dodd's discriminated against him based on his disability. As a result, the burden shifts to Dodd's to justify its conduct towards Mr. Singh: Code, s. 13(4). Dodd's would have to prove that it accommodated Mr. Singh to the point of undue hardship. 4. Did Dodd's reasonably accommodate Mr. Singh? At this stage, Dodd's must prove that it took all reasonable and practical steps to accommodate Mr. Singh: Thanh v. BC Ministry of Public Safety and Solicitor General, 2020 BCHRT 15 [Thanh] at para. 91. If an employer can, without undue hardship, offer an employee a variable work schedule or lighten their duties or even authorize staff transfers to ensure that the employee can do their work, it must do so to accommodate the employee: Hydro Qubec v. Syndicat des employes de techniques professionelles, 2008 SCC 43 [HydroQubec] at para. 17; cited in Thanh at para. 98. After hearing all of the evidence and oral submissions at the hearing, it remained unclear to me why Mr. Singh could not return to his position as Assistant Manager. I accept that his Assistant Manager role required occasional lifting. However, Dodd's did not advance any evidence that it would face undue hardship by modifying Mr. Singh's duties so that he could avoid occasional lifting. In fact, I heard evidence that Mr. Singh would receive such accommodation in the Assembly Worker position. Ms. McLeod testified that Mr. Singh could 2021 BCHRT 85 (CanLII) 16 have gotten help with any lifting required in the Assembly Worker position. This leaves me to wonder why Mr. Singh could not have gotten this type of assistance in his Assistant Manager position? I appreciate that Dodd's could not have kept Mr. Singh's Assistant Manager position vacant while he was on medical leave. However, Dodd's did not explain why it did not fill Mr. Singh's position temporarily. Dodd's did not advance any evidence that it would have experienced undue hardship by filling Mr. Singh's Assistant Manager role temporarily. I heard testimony from Ms. McLeod that Mr. Singh was replaced by another worker, who was subject to a probationary period. It appears Dodd's simply preferred the new worker. Such a preference does not discharge an employer's duty to accommodate its employees to the point of undue hardship: Gaarden v. Fountain Tire and Ingram, 2008 BCHRT 402 [Gaarden] at paras. 6365. Dodd's had an obligation to explore accommodation options with Mr. Singh:Gaarden at para. 65. Instead of consulting Mr. Singh, Dodd's issued an ultimatum to him: "If you do not show up to start training in the new [Assembly Worker] position by Thursday September 29th, we will consider that your resignation": Exhibit 1 at p. 423. This ultimatum foreclosed Mr. Singh's input into the accommodation process. Dodd's had a positive duty to consider what accommodations Mr. Singh might require upon his return from medical leave, and whether he could be accommodated to return to his Assistant Manager position: Gaarden, citing Gordy v. Painter's Lodge (No. 2) 2004 BCHRT 225 at para. 63. Dodd's did not make these inquiries. It did not give due consideration to Mr. Singh's disabilityrelated needs when it assigned him a more physically difficult position, without his input. As a result, I find that Dodd's did not take all reasonable and practical steps to accommodate Mr. Singh. Since I have found that Dodd's has not discharged its duty to accommodate Mr. Singh, his complaint is justified. 2021 BCHRT 85 (CanLII) 17 B. What is the appropriate remedy for Mr. Singh? Having found Mr. Singh's complaint to be justified, I must now determine the appropriate remedy.Mr. Singh seeks an Order that Dodd's cease and refrain from committing the same or a similar violation of the Code, and $10,000 in compensation for injury to his dignity, feelings and selfrespect because of the discrimination. He is not seeking lost wages because of the discrimination. When the Tribunal determines that a complaint is justified, it must order the person that violated the Code cease and refrain from committing the same or a similar violation: Code, s. 37(2)(a). I therefore order Dodd's to cease and refrain from committing the same or similar violation of the Code. The Tribunal also has the discretion to order compensation for injury to dignity, feelings and self respect under s. 37(2)(d)(iii) of the Code. The purpose of these awards is compensatory, and not punitive. In exercising this discretion, the Tribunal generally considers three broad factors: the nature of the discrimination, the complainant's vulnerability, and the effect on the complainant: The Sales Associate v. Aurora Biomed Inc. and others (No. 3), 2021 BCHRT 5 [Sales Associate] at para. 185. I begin with the nature of the discrimination in this case. While any discrimination is serious, the egregiousness of the discriminatory conduct will vary depending on the specific facts in each case: Sales Associate at para. 189. This is not a case of especially egregious conduct by Dodd's. Mr. Singh was not bullied, harassed or subject to other verbal or physical abuse by his employer. It appears Mr. Singh had a good rapport with Gordy and Love Dodd up until he was injured. Gordy Dodd was generous in loaning Mr. Singh money for his honeymoon. Mr. Singh and Ms. McLeod did not always see eye to eye, but there is no evidence of discrimination or poor treatment towards Mr. Singh in the workplace prior to his injury. This type of discrimination can be contrasted with an ongoing pattern of egregious discrimination: Garneau v. BuyRite Foods and others, 2015 BCHRT 77. Nonetheless, Mr. Singh experienced a significant adverse impact (harm) as a result of Dodd's discrimination. He is entitled to a remedy to compensate him for that harm. In terms of 2021 BCHRT 85 (CanLII) 18 the nature of the discrimination in this case, I find this case similar to Gaarden. In Gaarden, Mr. Gaarden suffered a back injury. As a result, he was unable to work for a time period, and received Worksafe benefits while he recovered. While still on leave, Mr. Gaarden's employer, Fountain Tire unilaterally ended Mr. Gaarden's employment. In Gaarden, the Tribunal awarded Mr. Gaarden $6000 for injury to his dignity, feelings and selfrespect. I note that the Gaarden case was decided in 2008. Therefore, I also consider two other factors, including inflation and the general upward trend of Tribunal awards, beyond inflation: Araniva v. RSY Contracting and another (No. 3), 2019 BCHRT 97 at para. 145. Next, I consider Mr. Singh's vulnerability. First, I note that there is an inherent power imbalance between employers and employees: Malin v. Ultra Care and another (No. 2), 2012 BCHRT 158, affirming Wallace v. United Grain Growers Ltd., [1997] 3 S.C.R. 701 [Wallace]. Second, both the Tribunal and courts have recognized that work is an essential aspect of a person's identity, selfworth, dignity and wellbeing: Wallace at para. 94; Sales Associate at para. 190. An involuntary change to a person's employment heightens their vulnerability: Wallace paras. 9495; Benton v. Richmond Plastics, 2020 BCHRT 82 at para. 71. Finally, I consider the effect that the discrimination had on Mr. Singh. I have accepted both Mr. Singh's and Mr. Kaur's evidence about the impact that leaving Dodd's had on him. Mr. Singh described the demotion as against his "selfrespect." He also described feeling depressed about losing his job at Dodd's because he felt he had worked hard for Dodd's for three years, including helping set up other warehouses. I accept that Mr. Singh experienced financial, marital and emotional hardship as a result of losing his job at Dodd's. I have no difficulty finding that Mr. Singh's effective termination at Dodd's had a significant and negative impact on his life: He v. Kirin at para. 94. In all the circumstances, I have decided that an award of $10,000 is reasonably proportionate for the injury to Mr. Singh's dignity, feelings, and selfrespect. 2021 BCHRT 85 (CanLII) 19 C. Dodd's application for costs Dodd's applied for an order for costs against Mr. Singh, submitting that Mr. Singh engaged in improper conduct during the course of his complaint: Code, s. 37(4). Dodd's submitted that Mr. Singh attempted to mislead the Tribunal in some of his filed documents, and failed to disclose his taxi records sufficiently or in a timely manner. I do not find circumstances in this case to warrant an award of costs for several reasons. First, I do not find that Mr. Singh attempted to mislead the Tribunal. He was able to explain any errors or discrepancies in documents filed with the Tribunal and produced for the hearing. Second, he was entitled to amend his Tribunal forms (within the time limits to do so) based on new information and legal advice available. Third, I am satisfied that Mr. Singh, with the assistance of various law students, including Ms. Norton, was diligent and reasonable in responding to Dodd's request for taxi records. Finally, none of Mr. Singh's conduct during the course of the complaint led to a significant prejudicial impact on Dodd's, or otherwise had a significant impact on the integrity of the Tribunal process. It is these types of impacts that the Tribunal seeks to deter when making a cost order: Shiozaki v. Aboriginal Mother Centre Society and another, 2020 BCHRT 10 at para. 65; Thorgeirson v. Sidney Bakery and another, 2019 BCHRT 246 at para. 56. Dodd's had access to all of Mr. Singh's updated documents filed at the Tribunal, in advance of the hearing. It had the opportunity to crossexamine Mr. Singh on any errors or discrepancies in any of his documents. Dodd's also had access to Mr. Singh's taxi records in advance of the hearing: Exhibit 1, p. 344414. There is no evidence that Dodd's was prejudiced related to Mr. Singh's conduct in his complaint, nor any evidence that Mr. Singh's conduct interfered with the integrity of the Tribunal process. For all of these reasons, Dodd's application for costs against Mr. Singh is denied. 2021 BCHRT 85 (CanLII) 20 V CONCLUSION To summarize, I have found that Mr. Singh's complaint is justified. Dodd's contravened s. 13 of the Code by not accommodating Mr. Singh's disability in the workplace. For all the reasons given in this decision, I order as follows: a. I order Dodd's to cease and refrain from committing the same or a similar contravention of the Code: s. 37(2)(a) of the Code. b. I declare that Dodd's conduct contravened s. 13 of the Code: s. 37(2)(b). c. I order Dodd's to pay Mr. Singh $10,000 as compensation for injury to his dignity, feelings, and selfrespect: s. 37(2)(d)(iii). d. Mr. Singh is entitled to postjudgement interest with respect to this award under the Court Order Interest Act, RSBC 1996, c. 79. e. Dodd's is not entitled to costs under s. 37(4) of the Code. Dodd's should pay this award to Mr. Singh within three months of this decision, subject to any alternate arrangements made by the parties. In making this decision, I note that Dodd's has a long record of offering employment opportunities to new immigrants. Both Mr. Vazquez Castillo and Mr. Sanam testified that Dodd's is a good employer who supports new immigrants. The nature of the discrimination in this case is as a result of Dodd's making an illinformed mistake in its response to Mr. Singh's disability. This mistake does not define Dodd's as a company or erase its other good work, services, and opportunities that it has provided in the community for many years. Finally, I want to acknowledge the parties and their representatives for their co operative preparation for the hearing, and the assistance they provided to me and one another as we made our way through an online hearing. The Joint Book of Documents provided by the parties, in advance of the hearing, was wellorganized, and easy to follow at the hearing and to 2021 BCHRT 85 (CanLII) 21 refer to in writing this decision. None of this cooperation and collegiality took away from the vigorous advocacy that both Mr. Manhas and Ms. Norton provided for their clients. 2021 BCHRT 85 (CanLII)

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2. Legal issues involved in the case ( with remedies).

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