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Human Rights Advisory Services

Andruski v. Coquitlam School District and another, 2015 BCHRT 74

Summary

Heather Andruski complains under s. 13 of the BC Human Rights Code that her employer, the Coquitlam School District #43 (“SD 43”) and Kathleen Ponsart, discriminated against her in her employment on the basis of physical disability.

Ms. Andruski has been employed as a teacher by SD 43 since 1995. In 2009, she provided medical evidence that she had a severe allergy to scents and dust. Ms. Andruski claims that the respondents failed to accommodate her physical disability by:

(a) not providing a scent-free work environment;

(b) not enforcing a scent-free work environment;

(c) subjecting her to psychological harassment.

By August 2010, with the collaboration of multiple parties, an accommodation plan was put in place for Ms. Andruski, referred to as the “Exposure Control Plan,” and Ms. Andruski agreed to it. This plan was updated several times after Ms. Andruski relocated to a different school.

One of the most prominent incidents happened in April 2013, when Ms. Andruski claimed that a particular student was continuing to attend school with scents, even though the parent of the child was doing everything she could to prevent the issue. Andruski and her union representative suggested moving the child out of the classroom for the rest of the year. Ms. Ponsart and the Vice-Principal disagreed, and the child stayed in the classroom.

The same month, Ms. Andruski had another reaction to scent. She moved her class, including all of their desks, to outside the classroom when it was cold. The Vice-Principal was concerned about the children’s needs and health and Ms. Andruski inappropriate response.

Ms. Andruski stated that just opening the door of her classroom was enough to get an allergic reaction, and she recognized she could not expect never to have any exposure in the workplace. However, Ms. Andruski’s position is that the agreed accommodation had not gone far enough because exposures still occurred, and she wanted more control in her environment over individuals.

By April 13, 2013, in the 2012/2013 school year, Ms. Andruski had 23 absences, and after those episodes, Ms. Andruski took medical leave on October 31, 2013. She went on long-term disability and had no expected return date.
 

Questions to be Determined and Findings

1. Is there a reasonable prospect for the complaint to succeed? (NO)
 

Reasoning

1. According to the Supreme Court of Canada in Moore v. British Columbia 2012 SCC 61, to demonstrate prima facie discrimination, complainants must show that they have a characteristic protected from discrimination; that they have experienced an adverse impact in a protected area; and that the protected characteristic was a factor in the adverse impact.

Ms. Andruski provided support for what could amount to a prima facie case of discrimination. She is in a protected group, and she has experienced an adverse impact of not being able to work. Depending on whether the respondent has fulfilled the obligation to accommodate her disability, there may be a relationship between those factors. If prima facie discrimination is proven, the respondent has the burden of proving, on a balance of probabilities, any applicable defence. Therefore, in this case, the respondents must be able to justify their conduct, including that all reasonable and practical steps were taken to accommodate Ms. Andruski’s disability.

Ms. Andruski and her union met with the respondents to develop an Exposure Control Plan and amended it as necessary. Ms. Ponsart says that she worked with Ms. Andruski to accommodate her in the following manner:  

(a) removed the carpet from Ms. Andruski’s classroom and replaced with linoleum;

(b) in October 2013, on the recommendation of the union representative, she authorized an order for computer equipment;

(c) used school funds to replace all of the soap dispensers in the school with unscented soap;

(d) advised the Vice-Principal on how to accommodate Ms. Andruski;

(e) communicated with the union about resolving Ms. Andruski’s scent issues as they arose; and

(f) spoke with staff and parents about being scent-free.

The Vice-Principal says that the staff were aware of Ms. Andruski’s sensitivity to scents. They would tell him that they bought unscented products and that if they thought they were scented, they would avoid Ms. Andruski so that she would not react to them. He says that they were making every reasonable effort to accommodate Ms. Andruski.

“The evidence is that, once the Exposure Control Plan was put in place, Ms. Andruski’s attendance improved and the plan appeared to be working reasonably well. The respondents argue, and I agree, that the process of reaching an accommodation or working within it once agreed cannot itself constitute a breach of the Code or adverse impact.” (p. 32)

The Tribunal then determined that the respondents took significant steps to accommodate Ms. Andruski’s disability. Her union was appropriately involved, and it helped negotiate and adjust the Exposure Control Plan.

“It appears to me that, due to the accommodation efforts, the respondents have shown that Ms. Andruski has no reasonable prospect of success with her complaint.” (p. 34)

Outcome

The complaint was dismissed.