May v. Advanced Coast First Aid Date:, 2015 BCPC 113

Citation: May v. Advanced Coast First Aid Date: 20150428 2015 BCPC 0113 File No: C72735 Registry: Nanaimo IN THE PROVINCIAL COURT OF BRITISH COLUMBIA BETWEEN: LINDA MAY and GERRY MAY CLAIMANTS AND: ADVANCED COAST FIRST AID SERVICES INC DEFENDANT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE GOUGE Appearing in person: Mr. & Ms. May Appearing for the Defendant: Mr. Widdifield

Place of Hearing: Nanaimo, B.C. Date of Hearing: April 20, 2015 Date of Judgment: April 28, 2015 [1] On April 7, 2014, Corey May enrolled in an industrial first aid course offered by the Defendant. His parents, Linda and GerryMay, paid his tuition, in the amount of $704. On April 17, 2014, Mr. Corey May was expelled from the course. Mr. & Ms. May sue torecover the tuition which they paid. To avoid confusion, I will refer to Linda & Gerry May as “the Claimants”, and Corey May as “Mr.May”. [2] The Claimants complain that the Defendant failed to make reasonable accommodations for Mr.

May’s disability, resulting inMr. May’s failure to complete the course and the waste of the tuition paid by the Claimants. The Defendant replies that Mr. Mayomitted to inform the Defendant of his disability, rendering it, as a practical matter, impossible for the Defendant to make suitableaccommodations for him. The Defendant says that, if Mr. May had done so, the Defendant could and would have madeaccommodations to assist Mr. May to successfully complete the course. [3] It is important to note that the Claimants’ complaint may properly be described as one of “adverse effects discrimination”.

Thatis, the Claimants say that: a. by failing to make reasonable accommodations for Mr. May, the Defendant discriminated against him in a manner forbidden bysection 8 of the Human Rights Code RSBC 1996, c 210; and b. the effect of such discrimination was to make it impossible, or materially more difficult, for Mr. May to successfully completethe Defendant’s course. The governing principles were stated by the Supreme Court of Canada in Moore vs British Columbia 2012 SCC 61 , [2012] 3SCR 360. [4] Although no medical evidence was tendered at trial, Mr.

May says, and I accept, that he suffers from a psychological conditionwhich incorporates Attention Deficit/Hyperactivity Disorder and working memory deficiencies. I also observed during his evidence thathe is exceptionally diffident and shy, attributes which appear to be associated with his psychological condition. Those aspects of hismental condition affect his ability to learn, and may explain why he failed to complete post-secondary courses in engineering and nursingbefore he enrolled in the Defendant’s course. [5] Mr. May completed and signed two forms during the enrolment process for the Defendant’s course.

The Defendant complainsthat he made no reference to his learning disability in either form. [6] One of the enrolment forms contained the following paragraph (underlining added): I have told the instructor of any physical limitations or phobias I have ie: neck, back or knee problems, claustrophobia, etc. that couldhinder my ability to participate in some of the classroom activities ie: having a hard collar put on, being strapped to the spine board etc.The following is a list of the problems I have: (Please print) _____________________________________ In the space provided, Mr.

May printed the words “Corey May has no concerns”. [7] The second enrolment form was a questionnaire. One of the questions was (underlining added): Have you experienced any psychological or emotional episodes which could preclude you from performing the duties of an occupationalfirst aid attendant? Mr. May answered “no” to that question. [8] Surprisingly, neither enrolment form asked for any information about learning disabilities or special needs in an educationalcontext. [9] The Defendant asserts that the two enrolment forms placed on Mr.

May the obligation to disclose his learning challenges, andthat his omission to do so released the Defendant from the obligation to make reasonable accommodations for his disability. I reject thatassertion for two reasons: a. the enrolment forms did not seek information about learning disabilities; b. the law imposes an obligation on educational institutions to actively seek such information - the onus is on the educator, not thestudent. [10] The first enrolment form twice uses the letters “ie”.

Although the customary periods have been omitted after each letter, thedraughtsman can only have intended the common abbreviation “i.e.”, which is short for “id est”, a Latin phrase which means “that is”.Unlike “e.g.”, “i.e.” has a restrictive meaning. It means “the following items and no others”. So, construed according to ordinary Englishusage, the first of the two forms asked only about the specific matters following each of the two “ie’s”. None of them are in a way related

to a learning disability. [ 11 ] The second enrolment form asked about psychological conditions which might “preclude” the student from performing first aid duties. There is no evidence from which I could infer that Mr. May’s condition is so serious that it might preclude him from doing so. [ 12 ] I conclude that the Defendant’s complaint about Mr. May’s omission to disclose his disability in the Defendant’s enrolment forms is unfounded. [ 13 ] Mr. May says that he attempted to discuss his disability with the Defendant’s instructor, Mr. Widdifield, on the second and third days of the course, but that Mr.

Widdifield refused to listen to him. Mr. Widdifield denies that the exchange took place. Mr. Widdifield asserts that Mr. May never raised the subject with him, and that the two men never discussed it. I need not decide which version of events is true, because a person who complains of “adverse effects discrimination” is not obliged to prove that the person alleged to have discriminated knew of the other’s disability. [ 14 ] Mr.

May’s evidence is sufficient to establish that he suffers from a medical condition which adversely affected his ability to participate in and successfully complete the course. [ 15 ] The applicable legal principles were recently stated by the Alberta Court of Appeal in Telecommunications Workers Union vs Telus Communications Inc [2014] AJ No. 467 ; 2014 ABCA 154 ; [2014] 6 WWR 217 @ paragraphs 28 – 29: One type of discrimination is adverse-effect discrimination. For that type, the three-part test for demonstrating a prima facie case is articulated in Moore v Ministry of Health … . 1.

The claimant has a characteristic that is protected from discrimination under the Code ; 2. The claimant has experienced an adverse impact; and 3. The claimant must show that the protected characteristic was a factor in the adverse impact. * * * Demonstrating an employer's knowledge of an employee's disability is unnecessary, in a case alleging adverse-effect discrimination. By definition, adverse-effect discrimination is the uniform application of a seemingly neutral employment policy to all employees, regardless of whether some employees have protected characteristics.

The impugned policy applies to a disabled employee whether or not the employer knows about the disability. The basic three-part test is sufficient to accommodate cases where an employer's knowledge is relevant to a prima facie case, and thus "knowledge" should not be added as a fourth element of the prima facie case test. [ 16 ] The Defendant’s submission that Mr. May carried the onus of disclosing his disability is irreconcilable with the passage quoted from TWU vs Telus , and I reject it for that reason. As a matter of law, the onus lay on the Defendant to make appropriate enquiries. Mr.

Widdifield concedes that he made none. [ 17 ] I hasten to point out that the onus imposed by law on educators, to make enquiries about learning disabilities, is not very difficult to discharge. It would have been very simple for the Defendant to have included in one of its enrolment forms the question: Do you suffer from any learning disability, or any other condition, which requires special attention during your instructional program? If so, please provide details in the space below. [ 18 ] It follows that the Defendant had a legal duty to make reasonable accommodations for Mr.

May and failed to do so. [ 19 ] In most cases, the appropriate forum for a claim of adverse effects discrimination is the British Columbia Human Rights Tribunal, which has jurisdiction to grant the remedy sought by the Claimants in this action. Complaints of this kind are better adjudicated by the Tribunal for two reasons: a. the Tribunal has particular expertise in the investigation and adjudication of human rights complaints; b. the Tribunal has a broader and more flexible array of remedies available to it than does this court.

With that acknowledged, it is appropriate to consider whether this court has jurisdiction over the claim in this case. [ 20 ] Each of the parties expressed to me some concern over the time and expense associated with these proceedings, and urged me to conduct the case as expeditiously as possible. If there is a way to decide the issues without subjecting the parties to another hearing before another tribunal, it would be desirable to do so. [ 21 ] I observe that the Human Rights Code contains no exclusive jurisdiction clause. There is nothing in the Human Rights Code analogous to

section 137 of the Labour Relations Code RSBC 1996, c 244. For that reason, I conclude that, if this court would otherwise have jurisdiction to adjudicate the dispute and to award the remedy sought, the power of the Human Rights Tribunal to do the same things does not necessarily oust the jurisdiction of this court. [ 22 ] This court has jurisdiction to decide claims for damages for breach of contract, provided that the amount awarded must not exceed $25,000. [ 23 ] The contract in this case contained no express term requiring the Defendant to comply with the Human Rights Code . The

question is whether such a term may be implied. The legal principle to be applied in answering that question was articulated in Reigate vsUnion Manufacturing Co [1918] 1 KB 592, and was recently quoted with approval by Chief Justice Bauman in Boxer Capital Corp vs JEL Investments Ltd [2015] BCJ No. 75; 2015 BCCA 24; 379 DLR (4th) 712 @ paragraph 36. It is: … an implied term is not to be added because the Court thinks it would have been reasonable to have inserted it in the contract.

A termcan only be implied if it is necessary in the business sense to give efficacy to the contract; that is, if it is such a term that it canconfidently be said that if at the time the contract was being negotiated someone had said to the parties, "What will happen in such acase," they would both have replied, "Of course, so and so will happen; we did not trouble to say that; it is too clear." Unless the Courtcomes to some such conclusion as that, it ought not to imply a term which the parties themselves have not expressed.

In this case, I am in no doubt that, if the parties had been asked at the time of enrolment whether the Claimants would be entitled toexpect and require the Defendant to carry out its obligations to Mr. May under the Human Rights Code, both parties would have replied“of course”. For that reason, there was an implied term of the contract that the Defendant would do so, and this court has jurisdiction,both to determine whether the Defendant performed that obligation and to award a remedy if it did not. [24] The Defendant had a contractual obligation to make reasonable accommodations for Mr. May. Mr.

Widdifield acknowledgedthat he made none, because he was not aware of Mr. May’s disability. On the authority of TWU vs Telus, that is not a sufficient excuse.It follows that the Defendant breached its contract. [25] The normal measure of damages for a breach of contract is a sum of money sufficient to put the claimant in the financialposition she would have occupied if the contract had been performed according to its terms. However, where it is difficult or impossibleto prove the facts relevant to the normal measure of damages, the innocent party may advance an alternative claim for wastedexpenditures.

To expand briefly, it would be difficult or impossible for the Claimants to prove that, if reasonable accommodations hadbeen made, Mr. May would have completed the course successfully and thereby enhanced his income-earning capacity. He hadpreviously failed to complete other vocational courses, and it is apparent that he suffers from significant educational challenges. Themost that can be said is that he might or might not have been successful. The reason that we cannot know is that the Defendant, in breachof its contract, failed to make the accommodations which might have allowed him to succeed.

In that circumstance, the law allows theinnocent party to claim expenses thrown away (in this case, Mr. May’s tuition) in lieu of damages. A defendant can successfully resistsuch a claim by showing that, even if the contract had been performed according to its terms, the claimant would not have received afinancial benefit.

However, the defendant carries the onus on that issue: Sunshine Vacation Villas Ltd. vs Governor & Company of Gentlemen Adventurers Trading Into Hudson’s Bay [1984] BCJ No. 1794; (BC CA), 58 BCLR 33; 13 DLR (4th) 93.That is thought to be fair because it is the defendant’s breach of contract which gives rise to the difficulty of proof. [26] In this case, there is no evidence on which I could conclude that reasonable accommodations would have been futile.

For thatreason, the Defendant’s onus is undischarged, and the Claimants are entitled to succeed. [27] The Claimants are entitled to judgment for $704, plus court order interest at the Registrar’s rate from April 30, 2014 to the dateof this judgment. Rule 20 of the Small Claims Rules provides that the successful party is entitled to: (

i) filing fees; (ii) reasonable fees foreffecting service of documents; and (iii) “any other reasonable charges or expenses that the judge … considers directly related to theconduct of the proceeding”. If the Claimants seek recovery of any such expenses, and the parties are unable to agree, the Claimants mayschedule a further hearing before me. April 28, 2015 _______________________________ T. Gouge, PCJ